707.03(b)(1) On Ground of Untimeliness
A party may not take testimony outside of its assigned testimony period, except by stipulation of the parties approved by the Board, or on motion granted by the Board, or by order of the Board. [ Note 1.] See TBMP § 701.
When there is no such approved stipulation, granted motion or Board order, and a testimony deposition is taken after the close of the deposing party's testimony period, an adverse party may file a motion to strike the deposition, in its entirety, as untimely. See TBMP § 533.01. Alternatively, an adverse party may raise this ground for objection in its brief on the case. Cf. TBMP § 707.02(b)(1).
On the other hand, when a testimony deposition is noticed for a date prior to the opening of the deposing party's testimony period, an adverse party that fails to promptly object to the scheduled deposition on the ground of untimeliness may be found to have waived this ground for objection, because the premature scheduling of a deposition is an error which can be corrected on seasonable objection. [ Note 2.]
NOTES:
2. See Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (objection to timeliness of testimony deposition taken two days before period opened, but raised for the first time in brief, waived).