Thursday, July 23, 2009

Precedential No. 29: TTAB Strikes Testimony of Witness Not Identified in Pre-Trial Disclosure

Under Trademark Rule 2.121(e), a party must identify, no later that 15 days before the opening of its testimony period, each witness "from whom it intends to take testimony, or may take testimony if the need arises." Here, Petitioner failed to comply with that Rule, and so the Board struck the testimony of Petitioner's president. Jules Jurgensen/Rhapsody, Inc. v. Peter Baumberger, 91 USPQ2d 1443 (TTAB 2009) [precedential].

Respondent's counsel attended the deposition (by telephone) and cross-examined the witness under protest, reserving the right to object to the acceptance of his testimony. This comported with Rule 2.121(e)(3), which provides that if pretrial disclosures with regard to a witness are improper or inadequate:

an adverse party may cross-examine that witness under protest while reserving the right to object to the receipt of the testimony in evidence. … A motion to strike the testimony of a witness for lack of proper or adequate pretrial disclosure may seek exclusion of the entire testimony, when there was no pretrial disclosure…. [emphasis by Board]

Petitioner did not provide an explanation as to why did not identify the witness, but merely asserted that the testimony was "critical" to its case. Not good enough, said the Board:

Because Mr. Clayman is the type of surprise witness that pretrial disclosure practice is intended to discourage, respondent's motion to strike is granted.

TTABlog note: Rule 2.121(e) came into effect as of November 1, 2007. Proceedings commenced before that date are not subject to this rule. [See TTAB chart here].

Text Copyright John L. Welch 2009.


At 11:11 AM, Anonymous Anonymous said...

Ouch. And looking at TTABVUE, it appears that no other evidence was put in during Petitioner's testimony period. Respondent has made a Motion for Judgment under 2.132(a).

At 5:49 PM, Anonymous Josh said...

Ouch is right. This is a mistake you would expect from a pro se plaintiff, not one with representation. Also, it's not as if the pretrial disclosure date is a mystery; the TTAB helpfully lists the deadline in EVERY scheduling order.


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