404.01 When Permitted and By Whom
Discovery depositions must be properly noticed and taken during the discovery period unless the parties stipulate that the deposition may be taken outside of the period. [ Note 1.] See TBMP § 403.02. Discovery depositions generally may be taken by any party, of any adverse party or any relevant non-party.
As a matter of convenience and courtesy and to avoid scheduling conflicts, the parties should attempt to schedule depositions by agreement rather than have the deposing party unilaterally set a deposition date. [ Note 2.] However, it is not unusual for the deposing party to notice a deposition and subsequently discuss alternative dates with the party to be deposed.
See TBMP § 408 regarding the parties’ duty to cooperate in discovery.
NOTES:
1. See 37 C.F.R. § 2.120(a)(3); National Football League v. DNH Management LLC, 85 USPQ2d 1852, 1855 (TTAB 2008).
2. Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1654 (TTAB 2007) (parties have a duty to cooperate in resolving conflicts in the scheduling and taking of depositions); Luehrmann v. Kwik Kopy Corp., 2 USPQ2d 1303, 1304 (TTAB 1987) (parties ordered to work out a mutually agreeable schedule for taking of discovery depositions).