Precedential No. 52 (2009): TTAB Rules That Objection to Discovery For Failure to Provide Initial Disclosures Must Be Made Specifically
Here is a precedential decision from November 4, 2009, that, because of its interlocutory nature, does not appear on the TTAB FOIA webpage. [Therefore it slipped under the TTABlog radar.] Opposer Amazon did not respond substantively to any of Applicant Wax's discovery requests because Wax (Amazon believed) had failed to serve initial disclosures. Amazon instead stated only that it was "exempt from responding (at this time), due to Applicant's failure to comply with the applicable rules." Not good enough, said the Board. Objections must be made with specificity. And so the Board granted Wax's motion to compel. Amazon Technologies, Inc. v. Jeffrey S. Wax, 93 USPQ2d 1702 (TTAB 2009).
Amazon made a total of 35 "General Objections" to applicant's interrogatories, document requests, and requests for admission, and it posed 171 "specific" objections to each of applicant’s 171 written discovery requests, but Amazon never mentioned Wax's alleged failure to serve initial disclosures. The Board found that Amazon compounded the problem by continuing to "hide the ball" during the meet and confer prior to Wax's motion to compel.
This dispute could and should have been resolved without the necessity of filing a motion to compel. Opposer's mistaken but apparently honest belief that applicant failed to serve initial disclosures is no excuse.
The Board therefore granted Wax's motion to compel and to test the sufficiency of Amazon's s responses to his admission requests. It overruled Amazon's objections:
To the extent opposer's various boilerplate objections could be construed as specific to individual discovery requests, they are OVERRULED, for two reasons. First, opposer has not even claimed, must less established, that any of applicant’s individual discovery requests are objectionable in any specific manner or that any of opposer’s boilerplate objections are valid. Second, applicant’s discovery requests are in large part identical to requests which opposer served on applicant, and "a party ordinarily will not be heard to contend that a request for discovery is proper when propounded by the party itself but improper when propounded by its adversary."
The Board then denied Wax's motion for sanctions [Wax on, wax off? - ed.] as being premature, since Amazon had not disobeyed any Board order. And it reopened discovery for Wax only, but just for two weeks [since Wax had waited until late in the discovery period to serve his discovery demands, and only two weeks were left when Amazon's responses were due].
TTABlog comment: So even if Wax had not served his initial disclosures, Amazon's vague objection was insufficient and the Board would have granted Wax's motion to compel anyway. Would it also have required Wax to serve his initial disclosures belatedly? I suspect so.
TTABlog postscript: Amazon's request for reconsideration was denied (here). In his original decision, the Interlocutory attorney said that Amazon was trying to "hide the ball" and had not laid "its cards on the table." On reconsideration, he stated that discovery "should not be treated as a shell game." Pretty strong words.
Text Copyright John L. Welch 2010.