404.07(e) Depositions on Written Questions: Examination of Witness
37 C.F.R. § 2.124(d)(1) . . . Every notice served on any adverse party under the provisions of paragraph (b)(3) of this section, for the taking of cross-examination, shall be accompanied by the written questions to be propounded on behalf of the party who proposes to take the cross-examination. Within twenty days from the date of service of the notice of taking direct examination or service of a testimony affidavit or declaration, any adverse party may serve cross questions upon the party who proposes to take the deposition. Any party who serves cross questions, whether in response to direct examination questions or under paragraph (b)(3) of this section, shall also serve every other adverse party. Within ten days from the date of service of the cross questions, the party who proposes to take the deposition, or who earlier offered testimony of the witness by affidavit or declaration, may serve redirect questions on every adverse party. Within ten days from the date of service of the redirect questions, any party who served cross questions may serve recross questions upon the party who proposes to take the deposition or who earlier offered testimony of the witness by affidavit or declaration; any party who serves recross questions shall also serve every other adverse party. Written objections to questions may be served on a party propounding questions; any party who objects shall serve a copy of the objections on every other adverse party. In response to objections, substitute questions may be served on the objecting party within ten days of the date of service of the objections; substitute questions shall be served on every other adverse party.
37 C.F.R. § 2.124(d)(2) Upon motion for good cause by any party, or upon its own initiative, the Trademark Trial and Appeal Board may extend any of the time periods provided by paragraph (d)(1) of this section. * * * *
37 C.F.R.§ 2.124(d)(3) Service of written questions, responses, and cross-examination questions shall be in accordance with § 2.119(b).
37 C.F.R. § 2.124(e) Within ten days after the last date when questions, objections, or substitute questions may be served, the party who proposes to take the deposition shall mail a copy of the notice and copies of all the questions to the officer designated in the notice; a copy of the notice and of all the questions mailed to the officer shall be served on every adverse party. The officer designated in the notice shall take the testimony of the witness in response to the questions and shall record each answer immediately after the corresponding question. The officer shall then certify the transcript and mail the transcript and exhibits to the party who took the deposition.
Within 20 days from the date of service of the notice in accordance with 37 C.F.R. § 2.119(b), [ Note 1.] any adverse party may serve cross questions on the deposing party. A party that serves cross questions on the deposing party must also serve copies thereof on every other adverse party. Within 10 days from the date of service of the cross questions in accordance with 37 C.F.R. § 2.119(b), the deposing party may serve redirect questions on every adverse party. Within 10 days from the date of service of the redirect questions in accordance with 37 C.F.R. § 2.119(b), any party that served cross questions may serve recross questions on the deposing party. A party which serves recross questions on the deposing party must also serve copies thereof on every other adverse party. [ Note 2.]
Written objections to questions may be served on the party that propounded the questions. A party that serves objections on a propounding party must also serve a copy of the objections on every other adverse party. In response to objections, substitute questions may be served on the objecting party within 10 days from the date of service of the objections in accordance with 37 C.F.R. § 2.119(b). The substitute questions must also be served on every other adverse party. [ Note 3.]
As all discovery depositions must be completed within the discovery period, including depositions on written questions, on motion for good cause filed by any party, or on its own initiative, the Board may extend any of the time periods specified in 37 C.F.R. § 2.124(d)(1), that is, the time periods for serving cross questions, redirect questions, recross questions, objections, and substitute questions to allow for the orderly completion of the depositions on written questions. [ Note 4.]
Within 10 days after the last date when questions, objections, or substitute questions may be served, the deposing party must mail a copy of the notice and copies of all the questions to the officer designated in the notice. A copy of the notice and of all the questions mailed to the officer must also be served on every adverse party. The officer designated in the notice shall take the testimony of the witness in response to the questions, and shall record each answer immediately after the corresponding question. [ Note 5.] Please Note: There is no longer an additional five days to act under 37 C.F.R. 2.119(c) when service is made by first-class mail, Priority Mail Express®, or overnight courier. [ Note 6.]
NOTES:
2. 37 C.F.R. § 2.124(d)(1). See Nahshin v. Product Source International LLC, 107 USPQ2d 1257, 1259 (TTAB 2013) (discussing the procedure for deposition on written questions under 37 C.F.R. § 2.124(d)); Fischer GmbH. v. Molnar & Co., 203 USPQ 861, 866 (TTAB 1979).
3. 37 C.F.R. § 2.124(d)(1). See Health-Tex Inc. v. Okabashi (U.S.) Corp., 18 USPQ2d 1409, 1410 (TTAB 1990).
4. See 37 C.F.R. § 2.124(d)(2) regarding suspension of proceedings for testimonial depositions on written questions.
6. MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69960 (October 7, 2016).