Thursday, October 05, 2017

Precedential No. 30: Party that Cross-Examines Testimony Declarant Bears The Expenses

In this opposition to registration of the mark CERTIFIED EMAIL for various email services, Opposer USPS submitted the testimony declarations of four witnesses, all located in the Washington, D.C. area. Applicant RPost served a notice to take oral cross-examination of these witnesses at its attorney's offices in Santa Monica, California. USPS moved to quash the notice of election and to require RPost to conduct the oral cross-examinations in Washington, D.C. The Board granted the motion. United States Postal Service v. RPost Communication Limited, 124 USPQ2d 1045 (TTAB 2017) [precedential] (Order by Interlocutory Attorney Katie W. McKnight).

USPS contended that Santa Monica is not a "reasonable time and place" for the depositions, pointing to Rule 2.123(c), due to the expense, inconvenience, and lost time. RPost pointed out that, although Rule 2.120(b) requires that discovery depositions be taken in the Federal judicial district in which the individual resides, Rule 2.123(c) does not contain such a provision.

The Board noted that rule 2.123(a)(1), effective on January 14, 2017, allows testimony in declaration or affidavit form, subject to the right of an adverse party to "elect to take and bear the expense of oral cross-examination of that witness." The witnesses must be made "available" for cross-examination.

In its Notice of Final Rule making prior to implementation of the new rules, the Board stated that the phrase "reasonable time and place" in Rule 2.123(c) must be read in conjunction with Rule 2.123(a)'s edict that the deposing party "bear the expense of oral cross-examination." The intent of that provision was to add "no burden" on the proffering party in terms of additional travel or attorney expense in connection with producing its witness for oral cross-examination. However, the cross-examining party bears the expense of the court reporter and any accommodations for the taking of the deposition.

Here, if RPost's notice of election were approved, not only would opposer face additional travel expenses, but opposer’s witnesses would each miss two or more days of work to travel to Santa Monica. Moreover, under the old Rule, had the direct testimony of these witnesses been taken in Washington, D.C., RPost’s counsel would have had to travel there to conduct cross-examination. Thus conducting its elected cross-examination in Washington, D.C. would not impose any new travel burden on RPost. Consequently, the Board concluded, Santa Monica is not a "reasonable ... place" for the cross-examination.

The Board further noted that RPost could accept opposer's proposal that the cross-examination be conducted by videoconference or telephone, which would satisfy some of RPost's concerns.

The Board therefore granted the motion to quash and allowed RPost ten days to file a new notice of election of cross-examination of the declarants in Washington, D.C. or any place mutually agreed upon.

Read comments and post your comment here.

TTABlog comment: Currently, a party cannot automatically conduct cross-examination by telephone or videoconference, but must either obtain the other party's consent or file a motion with the Board for permission to do so. Perhaps the rules should be changed to allow cross-examination by phone or videoconference as of right if the party so chooses.

Text Copyright John L. Welch 2017.


At 9:38 AM, Anonymous Darlene S. Klinksieck said...

Agree totally re rule change needed.


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