Friday, May 28, 2010

Precedential No. 19: TTAB Snoringly Rules on Motions to Compel Production and to Exclude Trial Witness

In this not-very-exciting, yet precedential, procedural ruling the Board denied Applicant's motion to compel production of documents because Opposer Byer claimed it had produced all responsive documents, and it granted in part Applicant's motion to exclude one Edward Manburg as a trial witness, limiting the scope of his potential trial testimony. Byer California v. Clothing for Modern Times Ltd., 95 USPQ2d 1175 (TTAB 2010) [precedential].

Motion to compel: Although the motion was denied, the Board pointed out that Applicant may seek to exclude from evidence any information or documents that Opposer should have produced in response to discovery requests.

Motion to exclude: In its initial disclosures, Byer did not name Manburg as a person with knowledge of relevant facts. He was named in discovery responses and in Byer's pre-trial witness list. However, because Applicant waited until the last day of the discovery period to serve its discovery, it did not have a chance to depose Manburg. So it moved to exclude him as a trial witness.

The Board recited the "fairly unique" circumstances at hand and concluded that "fairness dictates a compromise approach which protects both parties interests." It decided to re-open discovery to allow Manburg's deposition to be taken and to permit Manburg to testify at the trial stage, but only as to subject matter as to which only he and not the other trial witness (properly identified by Byer), could accurately testify.

Text Copyright John L. Welch 2010.


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