703.02(c) Depositions on Written Questions: When Taken
37 C.F.R. § 2.121 Assignment of times for taking testimony and presenting evidence.(a) The Trademark Trial and Appeal Board will issue a trial order setting a deadline for each party’s required pretrial disclosures and assigning to each party the time for taking testimony and presenting evidence ("testimony period"). No testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or, upon motion, by order of the Board. The deadlines for pretrial disclosures and the testimony periods may be rescheduled by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. ...
37 C.F.R. § 2.124 (b)(1) A party desiring to take a testimonial deposition upon written questions shall serve notice thereof upon each adverse party within ten days from the opening date of the testimony period of the party who serves the notice. The notice shall state the name and address of the witness. A copy of the notice, but not copies of the questions, shall be filed with the Trademark Trial and Appeal Board.
37 C.F.R. § 2.124(b)(3) A party desiring to take cross-examination, by written questions, of a witness who has provided testimony by affidavit or declaration shall serve notice thereof upon each adverse party and shall file a copy of the notice, but not copies of the questions, with the Board.
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37 C.F.R. § 2.124(d)(1) … 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. …
37 C.F.R. § 2.124(d)(2) ... Upon receipt of written notice that one or more testimonial depositions are to be taken upon written questions, the Trademark Trial and Appeal Board shall suspend or reschedule other proceedings in the matter to allow for the orderly completion of the depositions upon written question.
A party may take trial testimony only during its assigned testimony period, except by stipulation of the parties approved by the Board, or, on motion, by order of the Board. [ Note 1.] See TBMP § 701. For information concerning the assignment of testimony periods, and the rescheduling, extension, and reopening thereof, see TBMP § 509 and TBMP § 701.
A party that desires to take a testimony deposition on written questions must serve notice thereof on each adverse party within 10 days from the opening date of the deposing party's testimony period, as originally set or as reset. [ Note 2.]
A party that desires to take cross-examination, by written questions, of a witness who has provided affidavit or declaration testimony must serve notice thereof on each adverse party, and file a copy of the notice (but not a copy of the questions) with the Board, within twenty days from the date of service of the affidavit or declaration. [ Note 3.]
On receipt of written notice that one or more testimony depositions are to be taken on written questions, the Board will generally suspend or reschedule other proceedings in the case to allow for the orderly completion of the depositions on written questions. [ Note 4.]
For information concerning the time for taking a discovery deposition, see TBMP § 404.01.
NOTES:
1. 37 C.F.R. § 2.121(a). See Fossil Inc. v. Fossil Group, 49 USPQ2d 1451, 1454 n.1 (TTAB 1998) (parties stipulated that testimony deposition of applicant’s witness could be taken prior to its testimony period on the same day as opposer’s witness to achieve efficiencies in time and cost). Cf. Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (where opposer’s testimony deposition was taken two days prior to the opening of opposer’s testimony period, and applicant first raised a timeliness objection in its brief on the case, objection held waived, since the premature taking of the deposition could have been corrected on seasonable objection).
2. 37 C.F.R. § 2.124(b)(1). See Marshall Field & Co. v. Mrs. Field's Cookies, 17 USPQ2d 1652, 1652 (TTAB 1990) (notice of testimony depositions on written questions, while served eight months after testimony period originally opened, were nonetheless timely, having been served within 10 days of "opening" of testimony period as last reset).
3. 37 C.F.R. § 2.124(b)(3) and 37 C.F.R. § 2.124(d)(1). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69965 (October 7, 2016) ("The Office is adding new § 2.124(b)(3) to provide that a party desiring to take cross-examination by written questions of a witness who has provided testimony by affidavit or declaration shall serve notice on each adverse party and file a copy of the notice with the Board."), and MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES: CORRECTION, 81 Fed. Reg. 89382 December 6, 2016) (further clarification necessary to "clearly incorporate the timing for cross-examination upon written questions of testimony by affidavit or declaration.").
4. 37 C.F.R. § 2.124(d)(2). See Health-Tex Inc. v. Okabashi (U.S.) Corp., 18 USPQ2d 1409, 1411 (TTAB 1990); Marshall Field & Co. v. Mrs. Field's Cookies, 17 USPQ2d 1652 (TTAB 1990).