404.03(d) Foreign Person Present Within the United States – Party
37 C.F.R. § 2.120(c)(2) Whenever a foreign party is or will be, during a time set for discovery, present within the United States or any territory which is under the control and jurisdiction of the United States, such party may be deposed by oral examination upon notice by the party seeking discovery. Whenever a foreign party has or will have, during a time set for discovery, an officer, director, managing agent, or other person who consents to testify on its behalf, present within the United States or any territory which is under the control and jurisdiction of the United States, such officer, director, managing agent, or other person who consents to testify in its behalf may be deposed by oral examination upon notice by the party seeking discovery. The party seeking discovery may have one or more officers, directors, managing agents, or other persons who consent to testify on behalf of the adverse party, designated under Rule 30(b)(6) of the Federal Rules of Civil Procedure. The deposition of a person under this paragraph shall be taken in the Federal judicial district where the witness resides or is regularly employed, or, if the witness neither resides nor is regularly employed in a Federal judicial district, where the witness is at the time of the deposition. This paragraph (c)(2) does not preclude the taking of a discovery deposition of a foreign party by any other procedure provided by paragraph (c)(1) of this section.
Whenever a natural person who is a foreign party, or an officer, director, or managing agent, of a foreign party, or some other person who consents to testify on a foreign party’s behalf, is or will be, during a time set for discovery, present within the United States or any territory which is under the control and jurisdiction of the United States, such party, officer, director, managing agent, or other person may be deposed, while in the United States, by oral examination on notice pursuant to 37 C.F.R. § 2.120(c)(2). Indeed, this option was available even before the adoption of 37 C.F.R. § 2.120(c)(2). [ Note 1.]
When the discovery deposition of a foreign party, or an officer, director, managing agent, or other person who consents to testify on behalf of a foreign party, is taken in the United States by oral examination pursuant to 37 C.F.R. § 2.120(c)(2), the deposition must be taken in the federal judicial district where the witness resides or is regularly employed, or, if the witness neither resides nor is regularly employed in a federal judicial district, where the witness is at the time of the deposition. [ Note 2.] Parties may obtain information regarding a potential foreign witness’s presence in the United States during the discovery period in the form of an interrogatory request, which is subject to the duty to supplement. [ Note 3.]
NOTES:
1. See Rhone-Poulenc Industries v. Gulf Oil Corp., 198 USPQ 372, 373-74 (TTAB 1978). Cf. Jonergin Co. v. Jonergin Vermont Inc., 222 USPQ 337, 340 (Comm’r 1983) (parties may agree to take oral deposition of foreign domiciliary in U.S.).
3. MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69961 (October 7, 2016).