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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
the proceedings with respect to some or all parties, claims, and issues. Severed proceedings shall be treated as one proceeding for purposes of statutory damages. The Board may in its discretion dismiss one of the severed proceedings as unsuitable for resolution under these regulations without dismissing other severed proceedings.
c Timing. The Board may consolidate or sever proceedings at any time upon its own authority or following consideration of a request by any party, with reasonable notice and opportunity to be heard provided to all affected parties.
d Procedure. The party seeking consolidation or severance must submit a short letter to the Board, no longer than five pages in length, setting forth the reasons for the request, requesting a conference with the Board and the parties from each affected case, and, in the case of a request for consolidation, providing the Board with the docket numbers for each affected proceeding.
Parties opposing consolidation or severance may file a response letter, no longer than five pages in length, within 14 days of the date of service of the request for consolidation or severance, objecting to the request. No reply letters shall be permitted, unless the Board grants leave for a reply.
e Standard for granting request. In determining whether to grant a request to consolidate or sever, the Board shall consider whether consolidation or severance is necessary and balance that need with the timeliness of the request and whether any undue prejudice has resulted from the delay in making the request.

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222.13

Additional parties.

a When applicable. A necessary party is a person or entity whose absence would prevent the Board from according complete relief among existing parties, or who claims an interest related to the subject of the proceeding such that reaching a determination in the proceeding may impair or impede that persons or entitys ability to protect that interest as a practical matter, or in whose absence an existing party would be subject to a substantial risk of incurring double, multiple, or inconsistent obligations because of that interest.
b Failure to join a necessary party.
At any time, any party who believes in good faith that a necessary party has not been joined may file a letter, no longer than three pages in length, notifying the Board of the failure to join the necessary party and providing the basis for such belief. An opposing party may file a response, no longer than three pages in
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length, within 14 days of the date of service of the letter, in opposition. If the Board determines that a necessary party has not been joined, it shall dismiss the proceeding without prejudice.
c Intervention of a necessary party.
At any time, a necessary third party seeking to intervene may file a letter, no longer than three pages in length, setting forth the reasons for the request and requesting a conference with the Board.
Within 14 days of the date of service request, each party to the proceeding shall file a letter, no longer than three pages in length, indicating whether it agrees that the intervening party is a necessary party, and the basis thereof, or whether it opposes the intervention.
After evaluating the parties letters, the Board may hold a conference between the parties to the proceeding and the intervening party to address the request.
d Board determination. 1 If the Board determines that the intervening party is not a necessary party, it shall deny the request and resume the proceeding, unless all parties agree that the party should be joined.
2 If the Board determines that the intervening party is a necessary party, it shall i Permit the intervening party to join the proceeding, if no party indicated that it opposed the request to intervene;
or ii Dismiss the proceeding without prejudice, if any party indicated that it opposed the request to intervene.
222.14

Written testimony on the merits.

a Timing. At the times specified within the scheduling order, any party asserting a claim or counterclaim shall file written direct testimony in support of that claim or counterclaim. Any party responding to a claim or counterclaim shall file written response testimony within 30 days following the date of service of written direct testimony. Any party who asserted a claim or counterclaim may file written reply testimony within 14 days following the date of service of written response testimony.
b Direct and response testimony.
Written direct and response testimony shall consist of documentary evidence, witness statements, and a party statement.
1 Documentary evidence. i Documentary evidence must be accompanied by a statement that lists each attached document and provides a brief description of each document and how it bears on a claim or counterclaim;
ii Each document must be sponsored by a witness with knowledge of its contents and authenticity, unless the document statement states that the
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document was produced by an opposing party during discovery; and iii Direct or response documentary evidence shall only include documents that were served on opposing parties pursuant to the scheduling order, absent leave from the Board, which shall be granted only for good cause.
2 Witness statements. A witness statement must i Be sworn under penalty of perjury by the witness;
ii Be detailed as to the substance of the witnesss knowledge and must be organized into numbered paragraphs;
iii Contain only factual information based on the witnesss personal knowledge and may not contain legal argument; and iv Reference any documents included in the document statement that are sponsored by the witness, with a brief statement as to the basis for the witnesss knowledge of the documents authenticity.
3 Party statement. A party statement i Shall set forth the partys position as to the key facts, laws, and damages;
ii Need not have a table of contents or authorities;
iii Shall have a title page with the cases caption and the title of the document e.g., Party Statement of Respondent John Doe;
iv Shall be limited to 12 doublespaced pages, not including the title page or any signatures or certificates of service, in 12-point font or larger for both body text and footnotes, with at least one-inch margins on the top, bottom, left, and right of each page;
v For a claimant or counterclaimant seeking damages, shall include a statement as to whether the party is seeking statutory damages or actual damages and any profits. This election may be changed at any time up until final determination by the Board; and vi For a respondent or counterclaim respondent, may include a statement as to whether, if found liable on a claim or counterclaim, the party would voluntarily agree to an order stopping it from engaging in the activities found unlawful in the future as specified in 17
U.S.C. 1504e2. Such an election may be considered in appropriate cases by the Board in determining an amount of damages, if any, pursuant to 17 U.S.C.
1504, and such election may be changed at any time up until final determination by the Board. The statement shall take the following form: Claim/
Counterclaim respondent agrees that if it is found liable, it agrees to an order that it will stop the activity found to be unlawful. Such a statement will not be considered by the Board in any way in
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