405.04 Responses to Interrogatories
405.04(a) Time for Service of Responses
37 C.F.R. § 2.120(a)(3) . . . Responses to interrogatories . . . must be served within thirty days from the date of service of such discovery requests. * * * *
Fed. R. Civ. P. 33(b)(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. * * * *
Responses to interrogatories must be served within 30 days after the date of service of the interrogatories. TBMP § 403.03. The time to respond may be extended upon stipulation of the parties, or upon motion granted by the Board, or by order of the Board, but the response may not be due later than the close of discovery. [ Note 1.] The resetting of a party’s time to respond to an outstanding request for discovery will not result in the automatic rescheduling of the discovery and/or testimony periods; such dates will be rescheduled only upon stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. [ Note 2.]
Service of responses to interrogatories must be made by email, unless otherwise stipulated, or if the serving party attempted service by email but service could not be made due to technical problems or extraordinary circumstances, by the manner described in 37 C.F.R. § 2.119(b)(1) - 37 C.F.R. § 2.119(b)(4); however, if a party is not domiciled in the United States or not represented by an attorney or authorized representative in the United States, then no party to the proceeding is eligible to use postal mail as a manner of service. [ Note 3.] See TBMP § 113.04. Additionally, even if interrogatories are served by postal service or overnight courier (either by agreement or when email service was attempted but could not be made), 37 C.F.R. § 2.119(c) has been amended to remove the previous provision that added five days to the prescribed period for action after the date of service so that no additional time for service of discovery responses is allowed for responding to the requests by any manner of service. [ Note 4.] TBMP § 113.05 and TBMP § 403.03
A party which fails to respond to interrogatories during the time allowed therefor, and which is unable to show that its failure was the result of excusable neglect, may be found, on motion to compel filed by the propounding party, to have forfeited its right to object to the interrogatories on their merits. [ Note 5.] Objections going to the merits of an interrogatory or other discovery request include claims that the information sought by the request is irrelevant, overly broad, unduly vague and ambiguous, burdensome and oppressive, or not likely to lead to the discovery of admissible evidence. [ Note 6.] In contrast, objections based on claims of privilege or confidentiality or attorney work product do not go to the merits of the request, but instead to a characteristic of the information sought. [ Note 7.] Objections based on confidentiality are expected to be extremely limited because the Board’s standard protective order is in place for all Board inter partes proceedings. [ Note 8.]
NOTES:
3. 37 C.F.R. § 2.119(b) and 37 C.F.R. § 2.119(d). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69959 (October 7, 2016).
4. 37 C.F.R. § 2.119(c). See also MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69960 (October 7, 2016).
5. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000) (stating that the Board has great discretion in determining whether such forfeiture should be found); Envirotech Corp. v. Compagnie Des Lampes, 219 USPQ 448, 449 (TTAB 1979) (excusable neglect not shown where opposer was out of the country and, upon return, failed to ascertain that responses were due); Crane Co. v. Shimano Industrial Co., 184 USPQ 691, 691 (TTAB 1975) (waived right to object by refusing to respond to interrogatories, claiming that they served "no useful purpose"). See also Luehrmann v. Kwik Kopy Corp., 2 USPQ2d 1303, 1303 (TTAB 1987) (right to object not waived where although discovery responses were late, there was some confusion regarding time to respond); MacMillan Bloedel Ltd. v. Arrow-M Corp., 203 USPQ 952, 953 (TTAB 1979) (although party failed to timely respond to discovery, party seeking such discovery is required to make good faith effort to determine why no response has been made before filing motion to compel).
6. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000).
7. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000) (party will generally not be found to have waived the right to make these objections).
405.04(b) Nature of Responses
Fed. R. Civ. P. 33(b)(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.
Fed. R. Civ. P. 33(b)(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.
Fed. R. Civ. P. 33(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
- (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
- (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
Ordinarily, a party on which interrogatories have been served should respond to them by stating, with respect to each interrogatory, either an answer or an objection. If an interrogatory is answered, the answer must be made separately and fully, in writing under oath. If an interrogatory is objected to, the reasons for objection must be specifically stated in lieu of an answer. [ Note 1.] In responding to interrogatories, "general objections" or boilerplate "specific objections" are not proper. Objections, if any, must be specifically asserted in response to each interrogatory against which they are interposed, and the ground or basis for each objection must be stated with specificity. [ Note 2.] The Board generally looks with disfavor on the practice of responding to written discovery by inserting repeated or "boilerplate" lists of objections which fail to set forth the ground or basis for the objection with respect to the interrogatory at issue. It is incumbent upon a party who has been served with interrogatories to respond by articulating its objections with particularity to those interrogatories (or parts of interrogatories) which it believes to be objectionable, and by providing the information sought in those interrogatories (or parts of interrogatories) which it believes to be proper. [ Note 3.] The burden of persuasion is on the objecting party to show that an interrogatory or part thereof should not be answered. [ Note 4.] If a responding party believes that the number of interrogatories served exceeds the limit specified in 37 C.F.R. § 2.120(d), and wishes to object to the interrogatories on this basis, the party must, within the time for, and instead of, serving answers and specific objections to the interrogatories, serve a general objection on the ground of their excessive number. [ Note 5.] TBMP § 405.03(e).
The Board prefers that the responding party reproduce each interrogatory immediately preceding the answer or objection thereto.
In some cases, pursuant to Fed. R. Civ. P. 33(d), the information sought in an interrogatory may be derived or ascertained from the business records of the responding party, or from an examination, audit, or inspection of those business records (including a compilation, abstract, or summary thereof) when the burden of deriving or ascertaining the information is substantially the same for the propounding party as for the responding party. In those cases, the responding party may answer the interrogatory by itself providing, in its written answer to the interrogatory, the information sought. Alternatively, the responding party may answer the interrogatory by specifying the records from which the information may be derived or ascertained, and affording to the propounding party reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries. If the responding party elects to answer an interrogatory by specifying and producing business records, the specification must be in sufficient detail to permit the propounding party to locate and identify, as readily as can the responding party, the records from which the answer may be ascertained. [ Note 6.] A party seeking to invoke Fed. R. Civ. P. 33(d) with regard to electronic information may be required to provide some combination of technical support, information on application software, or other assistance to the requesting party. [ Note 7.] If direct access to its electronic information system is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to an interrogatory, the answering party may determine that its need for privacy or confidentiality requires it to derive or ascertain the answer itself rather than invoke Fed. R. Civ. P. 33(d). [ Note 8.]
A responding party cannot simultaneously invoke the option to produce business records and claim the protection of a privilege as to the documents. [ Note 9.]
It is generally inappropriate for a party to respond to interrogatories by filing a motion attacking them, such as a motion to strike, a motion to suppress, a motion for a protective order, etc. [ Note 10.] Rather, the party ordinarily should respond by answering those interrogatories that it believes to be proper and stating its objections to those that it believes to be improper. TBMP § 410.
For information regarding a party’s duty to supplement responses to interrogatories, see TBMP § 408.03.
NOTES:
1. Fed. R. Civ. P. 33(b)(2), 33(b)(4).
2. Fed. R. Civ. P. 33(b)(4); Amazon Technologies, Inc. v. Wax, 93 USPQ2d 1702, 1704 (TTAB 2009); Medtronic, Inc. v. Pacesetter Systems, Inc., 222 USPQ 80, 83 (TTAB 1984); see also 8B C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE Civil § 21732 (3d ed. 2017).
3. Fed. R. Civ. P. 33(b)(4); Amazon Technologies, Inc. v. Wax, 93 USPQ2d 1702, 1704 (TTAB 2009); Medtronic, Inc. v. Pacesetter Systems, Inc., 222 USPQ 80, 83 (TTAB 1984); see also 8B C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE Civil § 21732 (3d ed. 2017).
4. Medtronic, Inc. v. Pacesetter Sys., Inc., 222 USPQ 80, 83 (TTAB 1984); Volkswagenwerk Aktiengesellschaft v. MTD Products Inc., 181 USPQ 471, 472 (TTAB 1974); see also 8B C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE Civil § 21732 (3d ed. 2017).
5. 37 C.F.R. § 2.120(d). Emilio Pucci International BV v. Sachdev, 118 USPQ2d 1383, 1385 (TTAB 2016).
6. Fed. R. Civ. P. 33(d); Johnson & Johnson v. Obschestvo s ogranitchennoy; otvetstvennostiu "WDS," 95 USPQ2d 1567, 1570 (TTAB 2010) (responding party not entitled to invoke Fed. R. Civ. P. 33(d) by producing business records in Russian language with no English translation); No Fear Inc. v. Rule, 54 USPQ2d 1551, 1555 (TTAB 2000) (responding party may not merely agree to provide access to voluminous records which may contain responsive information); Jain v. Ramparts, Inc., 49 USPQ2d 1429, 1435 (TTAB 1998) (identifying prerequisites for exercising the option to produce business records in lieu of answering interrogatories).
7. Fed. R. Civ. P. 33 Committee Notes on Rules – 2006 Amendment.
8. Fed. R. Civ. P. 33 Committee Notes on Rules – 2006 Amendment.
9. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000); 8B C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE Civil § 2178 (3d ed. 2016).
10. Emilio Pucci International BV v. Sachdev, 118 USPQ2d 1383, 1385 (TTAB 2016).
405.04(c) Signature of Responses and Authority of Signer
Fed. R. Civ. P. 33(b)(1) Responding Party. The interrogatories must be answered:
- (A) by the party to whom they are directed; or
- (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.
Fed. R. Civ. P. 33(b)(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.
Interrogatories must be answered by the party served. If the party served is a corporation, partnership, association, or governmental agency, the interrogatories must be answered by an officer, partner, or agent, who must furnish whatever information is available to the party served. [ Note 1.]
The term "agent" includes an attorney, who may answer even though he has no personal knowledge of the facts stated in the answers; the attorney’s answers, like an officer’s or partner’s answers, must contain the information available to the party served. [ Note 2.] However, an attorney who answers interrogatories on behalf of a corporation, partnership, association, or governmental agency may thereafter be exposed to additional discovery and possibly even disqualification. [ Note 3.]
Responses to interrogatories must be signed by the person making them, and objections to interrogatories must be signed by the attorney making them. [ Note 4.]
NOTES:
1. Fed. R. Civ. P. 33(b)(1)(B).
2. See Allstate Insurance Co. v. Healthy America Inc., 9 USPQ2d 1663, 1665 (TTAB 1988).
3. See 37 C.F.R. § 11.307; Allstate Insurance Co. v. Healthy America Inc., 9 USPQ2d 1663 n.4 (TTAB 1988).
4. Fed. R. Civ. P. 33(b)(5).