Discovery Obligations - Requests for Production of Publicly Available Materials

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10.12.15

By Theresa Wang

The TTAB has held that materials that are publicly available on the internet and acquired by a party in anticipation of trial are generally not required to be produced in discovery. Capital City, LLC v. Select Brands, LLC, 2013 WL 5402086 at *3 (TTAB Aug. 26, 2013) (denying motion to strike internet material from notice of reliance because "many of the documents introduced under [the notice of reliance] are not of the type whereby we can conclude they were solely within the possession of petitioner prior to trial") (citing Rocket Trademarks Pty. Ltd. v. Phard. S.p.A., 98 USPQ2d 1066, 1071-72 (TTAB 2011)). However, to the extent that internet materials or publicly-available documents are within the possession, custody or control of the party responding to a document request (e.g. a company annual report), it would be prudent to produce such materials even if they are also available in the public domain, particularly if the applicant/registrant intents to rely on the document as evidence.

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