702.05    Overly Large Records

The Board notes that in recent years there has been a trend regarding the introduction of irrelevant and/or cumulative evidence at trial. [ Note 1.] The Board views parties who engage in this practice with disfavor. [ Note 2.] The introduction of such evidence impedes the orderly administration of the case, and obscures the impact of truly relevant evidence. In addition to diminishing the effectiveness of a party’s evidentiary record, "papering" the Board causes delays in rendering a final decision. Parties should submit only relevant, non-cumulative evidence. [ Note 3.] For all evidence submitted under notice of reliance, the notice must indicate generally the relevance of the evidence and associate it with one or more issues in the proceeding. [ Note 4.] Failure to do so, however, is a curable procedural defect that does not necessitate reopening a party’s testimony period. [ Note 5.] For a discussion of the requirements for evidence submitted under notice of reliance, see TBMP § 704.02.

The Board may require the parties to take steps to assist with organizing the evidence such as preparing and filing tables summarizing testimony and other evidence and specifying 1) the probative value of particular facts or testimony and 2) the location in the record of such facts or testimony. [ Note 6.] Deposition transcripts must contain a word index, listing the pages where the words appear in the deposition. [ Note 7.]

Pursuant to 37 C.F.R. § 2.120(j)(2), the Board may require the parties to meet with the Board for a pretrial conference where the Board has determined that the case has the potential to become overly contentious and/or involve the creation by the parties of excessive records. [ Note 8.] See TBMP § 502.06(b) for more information about pretrial conferences.

NOTES:

 1.   See, e.g., Societe Des Produits Nestle S.A. v. Taboada, 2020 USPQ2d 10893, at *5, n.18 (TTAB 2020) (given parties’ ACR stipulation, opposer’s refiling of numerous portions of its summary judgment evidence was duplicative and unnecessary); RxD Media, LLC v. IP Application Development LLC, 125 USPQ2d 1801, 1803 (TTAB 2018) (the parties introduced into the record thousands of pages of testimony and other evidence without regard to what they needed to prove), aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021); Sheetz of Delaware Inc. v. Doctor’s Associates Inc., 108 USPQ2d 1341, 1344 n.5 (TTAB 2013) ("While we commend the parties for agreeing to efficiencies intended to facilitate the introduction of evidence at trial, ideally, [ACR] cases do not merely facilitate introduction of more evidence, but should also limit the amount of evidence placed before the Board."); Corporacion Habanos S.A. v. Guantanamera Cigars, Co., 102 USPQ2d 1085, 1091 (TTAB 2012) (another case which does not warrant a record of this size); UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1873 (TTAB 2011) (overly large records tax the resources of the Board and are entirely unnecessary); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591-92 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential) (Board expressed frustration with sizeable record and overzealous litigation); Calypso Technology Inc. v. Calypso Capital Management LP, 100 USPQ2d 1213, 1218 (TTAB 2011) (with its supplemental notice of reliance, plaintiff resubmitted the first 25 items listed in its first notice of reliance, needlessly adding bulk to the record and wasting Board resources); Stuart Spector Designs Ltd. v. Fender Musical Instruments, Corp., 94 USPQ2d 1549, 1552 (TTAB 2009) ("voluminous" evidence of record); Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495 (TTAB 2005) ("It is simply inconceivable to the Board that the issues herein warranted either a record of this size or the large number of motions relating thereto."), aff’d, 479 F.3d 825, 81 USPQ2d 1919 (Fed. Cir. 2007). See also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("The case was neither prosecuted nor defended based on any clear theory of the case. Neither party made a concise and compelling evidentiary showing, and neither was judicious in the introduction of only relevant testimony and evidence.").

 2.   See, e.g., RxD Media, LLC v. IP Application Development LLC, 125 USPQ2d 1801, 1803 (TTAB 2018) ("Simply put, the parties introduced into the record thousands of pages of testimony and other evidence without regard to what they needed to prove, apparently in the hope that in wading through it, we might find something probative. This is not productive. ‘Judges are not like pigs, hunting for truffles buried in briefs.’") aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021); Sheetz of Delaware Inc. v. Doctor’s Associates Inc., 108 USPQ2d 1341, 1344 n.5 (TTAB 2013) ("A larger record is not necessarily a better record."); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1591 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential) ("Even counsel at the oral hearing acknowledged that the present record is of a magnitude generally reserved for district court litigation."); Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495 (TTAB 2005) ("It is simply inconceivable to the Board that the issues herein warranted either a record of this size or the large number of motions relating thereto."), aff’d, 479 F.3d 825, 81 USPQ2d 1919 (Fed. Cir. 2007).

 3.   See, e.g., Societe Des Produits Nestle S.A. v. Taboada, 2020 USPQ2d 10893, at *5, n.18 (TTAB 2020) (given parties’ ACR stipulation, opposer’s refiling of numerous portions of its summary judgment evidence was duplicative and unnecessary); RxD Media, LLC v. IP Application Development LLC, 125 USPQ2d 1801, 1803 (TTAB 2018) (thousands of pages of testimony and other evidence without regard to what needed to be proved, is not productive. "Neither party made a concise and compelling evidentiary showing, and neither was judicious in the introduction of only relevant testimony and evidence."), aff’d, 377 F. Supp. 3d 588 (E.D. Va. 2019), aff’d, 986 F.3d 361, 2021 USPQ2d 81 (4th Cir. 2021); Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031, 1040 n.19 (TTAB 2010) ("It is not necessary for the parties to introduce every document obtained from an Internet search especially when it includes duplicative and irrelevant materials."); Blue Man Productions v. Tarmann, 75 USPQ2d 1811, 1814 (TTAB 2005) (foreign language materials submitted with no translation), rev’d on other grounds, slip op No. 05-2037 (D.D.C. Apr. 3, 2008).

 4.   37 C.F.R. § 2.122(g). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69652, 69964 (October 7, 2016) (" … a notice must indicate generally the relevance of the evidence offered and associate it with one or more issues in the proceeding, but failure to do so with sufficient specificity is a procedural defect that can be cured by the offering party within the time set by Board order. The amendment codifies current case law and Office practice."). See, e.g., Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1164 (TTAB 2017) (failure to delineate the relevant element of a claim or defense for specific pages in the notice of reliance as required under Trademark Rule 2.122(g) is "particularly problematic because of the sheer volume of pages").

 5.   37 C.F.R. § 2.122(g). See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69652, 69964 (October 7, 2016) ("The Office is adding new § 2.122(g) detailing the requirement for admission of evidence by notice of reliance. Section 2.122(g) provides that a notice must indicate generally the relevance of the evidence offered and associate it with one or more issues in the proceeding, but failure to do so with sufficient specificity is a procedural defect that can be cured by the offering party within the time set by Board order. The amendment codifies current case law and Office practice."). See, e.g., Barclays Capital Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1164 (TTAB 2017) (failure to comply with Trademark Rule 2.122(g) is a curable defect that can be remedied without reopening party’s testimony period).

 6.   See AT&T Mobility LLC v. Thomann, 2020 USPQ2d 53785, at *12 (TTAB 2020) (parties required to file an appendix of all testimony and documentary evidence, explaining relevance, location in record where found, and TTABVUE docket entry and page number where evidentiary item appears; parties required to add electronic bookmarks to any testimony or evidence filed as a PDF document in ESTTA); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1592 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential) (after oral hearing, Board required parties to submit a joint index and amended briefs with citations to the joint index); Blackhorse v. Pro-Football Inc., 98 USPQ2d 1633, 1635-36 (TTAB 2011) (tables of evidence required).

 7.   37 C.F.R. § 2.123(g)(3). MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69965 (October 7, 2016) ("The Office is amending § 2.123(g)(3) to add that deposition transcripts must contain a word index, listing the pages where the words appear in the deposition.").

 8.   See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69951 (October 7, 2016) ("The existing rule for convening a pretrial conference because of the complexity of issues is amended so that it is limited to exercise only by the Board, upon the Board’s initiative.").