531 Motion That Deposition Upon Written Questions Be Taken Orally
37 CFR § 2.123(a)(1) Trial testimony in inter partes cases. The testimony of witnesses in inter partes cases may be taken by depositions upon oral examination as provided by this section or by depositions upon written questions as provided by §2.124. If a party serves notice of the taking of a testimonial deposition upon written questions of a witness who is, or will be at the time of the deposition, present within the United States or any territory which is under the control and jurisdiction of the United States, any adverse party may, within fifteen days from the date of service of the notice, file a motion with the Trademark Trial and Appeal Board, for good cause, for an order that the deposition be taken by oral examination.
A party served with notice of the taking, by an adverse party, of a testimonial deposition upon written questions of a witness who is, or will be at the time of the deposition, present within the United States or any territory which is under the control and jurisdiction of the United States, may, within 15 days from the date of service of the notice (20 days if service of the notice was made by first-class mail, Priority Mail Express® , or overnight courier,see 37 CFR § 2.119(c) ), file a motion with the Board, showing good cause, for an order that the deposition be taken by oral examination. [ Note 1.]
The Board on a case-by-case basis, depending upon the particular facts and circumstances in each case, makes the determination of whether good cause exists for a motion that a testimonial deposition upon written questions instead be taken by oral examination. [ Note 2.] Cf. TBMP § 520.
NOTES:
1. See 37 CFR § 2.123(a)(1).
2. See Century 21 Real Estate Corp. v. Century Life of America, 15 USPQ2d 1079, 1080 (TTAB 1990) (unjust to deprive applicant of oral cross-examination opposer’s expert rebuttal witness present in U.S.), corrected, 19 USPQ2d 1479 (TTAB 1990); Feed Flavors Inc. v. Kemin Industries, Inc., 209 USPQ 589, 591 (TTAB 1980) (proposed deposition on written questions of petitioner’s employees during rebuttal period would deprive applicant of cross-examination and confronting witness). Cf. Orion Group Inc. v. Orion Insurance Co., 12 USPQ2d 1923, 1525-26 (TTAB 1989) (good cause to take oral discovery deposition of witness in England).