Monday, July 27, 2015

Precedential No. 22: Unreasonable Party Loses Right to Substantive Objections to Document Requests

The Board granted Respondent Meenaxi's motion to compel Petitioner Cadbury to respond to Meenaxi's Rule 34 request for documents, which Cadbury had refused to do based on an "an obvious and inadvertent" typographical error in the request. The Board found that Cadbury's position was "unreasonable" and "resulted in the filing of an unnecessary motion, wasting the time and resources of both parties and the Board." It ordered Cadbury to respond to the requests without substantive objections. Cadbury UK Limited v. Meenaxi Enterprise, Inc., 115 USPQ2d 1404 (TTAB 2015) [precedential].

Respondent Meenaxi simultaneously served interrogatories and document requests on Cadbury. Cadbury objected to the interrogatories but did not respond or object to the document requests. In the preamble to the document requests Meenaxi referred to Petitioner as "Venture Execution Partners, Inc.," instead of "Cadbury UK Limited." Although the document was correctly captioned, and although Cadbury requested and Meenaxi granted four extensions of time to respond to its "discovery," Cadbury contended that the typographical error was a "crucial mistake, the result of which is that the document requests were never directed to Petitioner."

Cadbury agreed that Meenaxi might serve corrected requests, and so the dispute boiled down to whether Cadbury, by its complete failure to respond, had waived its right to object to the requests.

Cadbury feebly contended the extensions of time for its responding to "discovery" did not contemplate document requests. The Board found Cadbury's claim to be "disingenuous at best." There was no doubt that Cadbury knew that the document requests were served in and related to this cancellation proceeding.

The isolated reference to Venture Execution Partners, Inc., was clearly a typographical error; it did not cause a matter of real confusion or misunderstanding. The motion to compel is the result of Petitioner’s attorney apparently concluding, upon the discovery of a typographical error, that he had found an excuse to become pedantic, unreasonable, and uncooperative. The Board expects each party to every case to use common sense and reason when faced with what the circumstances clearly show to be a typographical error.

The Board noted that if Cadbury had any doubt, it should have contacted Meenaxi for clarification rather than refusing to respond. Or Cadbury could have objected based upon the supposed ambiguity. At a minimum, it should have accepted Meenaxi's explanation, during that latter's good faith effort to resolve the issue, that the single reference to a different company was a typographical error.

The Board will not allow a party to avoid its discovery obligations due to an obvious typographical error such as this one. *** Petitioner’s unreasonable position here has resulted in the filing of an unnecessary motion, wasting the time and resources of both parties and the Board. The Board expects that when there is an obvious and inadvertent typographical error in any discovery request or other filing—particularly where, as here, the intended meaning was clear—the parties will not require the Board’s intervention to correct the mistake.

Granting the motion to compel, the Board gave Cadbury thirty days to respond to the document requests and to produce the requested documents, without objection on the merits. See Amazon, Inc. v. Wax, 93 USPQ2d 1702, 1706 n.5 (TTAB 2009) ("Objections going to the merits of a discovery request include those which challenge the request as overly broad, unduly vague and ambiguous, burdensome and oppressive, as seeking non-discoverable information on expert witnesses, or as not calculated to lead to the discovery of admissible evidence. In contrast, claims that information sought by a discovery request is trade secret, business-sensitive or otherwise confidential, is subject to attorney-client or a like privilege, or comprises attorney work product, goes not to the merits of the request but to a characteristic or attribute of the responsive information."). Cadbury was also ordered to provide a privilege log within thirty days.

It also must be stressed that Petitioner’s conduct has not demonstrated the good faith and cooperation that is expected of litigants during discovery. Such conduct has delayed this proceeding, unnecessarily increased the litigation costs of the parties, wasted valuable Board resources, and interfered with Respondent’s ability and, indeed, its right, to take discovery.

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TTABlog comment: Wow! The TTABlogger's cardinal rule of practice is to at least try to look reasonable before the Board.

Text Copyright John L. Welch 2015.


At 11:47 AM, Anonymous Anonymous said...

Thank you Board. Great decision and only hope that the TTAB continues to light up the "game players" in Board practice. Even a really good firm (like Cadbury's) can have a game player trying to gin the system and play "gotcha". Only wish the Board would do like some courts and require the firm to send a copy of this decision to their client and file a declaration with the Board confirming that they have done so. It wold stop a lot of this nonsense.

At 12:17 PM, Anonymous Anonymous said...

What an absolute mess. In some ways, the pleadings even make this one appear worse as counsel exchanged so many emails over absolutely nothing and then apparently researched cases regarding typographical errors. I truly wonder if Cadbury's counsel actually stepped back and took a deep breath while writing the response to the motion to compel.

Granted that most TTAB cases take forever but from my current in-house position, this would drive me absolutely insane. Were the counsel actually billing this time and informing their clients of the nature of the dispute? Just an absurd fight.

Maybe an oral history of what was going on behind the scenes would be instructive (TTABlog's Behind the Board or 30 for 30 style show could be a nice side project). Surely there was some broader disagreement than the simple typo.

At 5:01 PM, Blogger Ian Mullet said...

Looks like Cadbury got creamed.


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