Friday, September 04, 2009

Precedential No. 37: Board Grants Motion to Introduce at Trial, Discovery Deposition of Nonparty Taiwanese Witness

In a somewhat interesting decision, the Board granted Opposer's motion under Rule 2.120(j)(3)(i) to allow introduction of a nonparty discovery deposition by way of notice of reliance. The witness, Momo Chen, a Taiwanese citizen who resides outside the U.S.A., voluntarily appeared in the United States for her discovery deposition, but stated that she had no plans to return to the United States and agreed to appear only for the discovery deposition. Galaxy Metal Gear, Inc. v. Direct Access Technology, Inc., 91 USPQ2d 1859 (TTAB 2009) [precedential].

Rule 2.120(j)(2) states in pertinent part that discovery depositions (of a party or a nonparty) shall not be offered into evidence unless the witness is out of the country during the trial period (except if the party offering the deposition procured the absence of the witness) or cannot be served with a subpoena to compel attendance at a deposition. Rule 2.120(j)(3)(i) provides that the offering party must make a motion for leave to file the deposition at the time it is offered into evidence.

Here, the Board found that Ms. Chen is not willing to appear voluntarily for trial and her attendance cannot be compelled. Therefore it granted Opposer's motion. It found no evidence to suggest that that Opposer had procured an agreement with Ms. Chen that would stay out of the country, and it noted that Applicant attended the discovery deposition and cross-examined the witness, and learned at that time that Ms. Chen did not plan to be in the United States during the trial phase of this proceeding.

Applicant also complained that Opposer had not identified Ms. Chen as a potential witness in its initial disclosures under Rule 2.120(a)(3). The Board, however, pointed out that there is no need to supplement a party's disclosures "to include information revealed by a witness in a deposition or otherwise through formal discovery, including the identity of the witness." Applicant not only attended her deposition but also had more than two months to take additional discovery.

Text Copyright John L. Welch 2009.


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