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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
2 Form of request. A request for an expert witness must be made by letter, no more than five pages, at the time set forth for requests for additional discovery in the scheduling order. The letter must specifically indicate the topics of the experts proposed testimony, the name of the proposed expert, and the anticipated cost of retaining the expert, and must set forth the basis and justifications for the request, and indicate whether the other parties consent or object to the request.
3 Form of response. Within seven days of the date of service of a request for leave to offer an expert witness, any party that opposes the request may file a response letter of no more than five pages. No reply letters shall be permitted, unless the Board grants leave for a reply.
4 Form of expert testimony. Any expert testimony permitted by the Board shall be submitted along with the offering partys written direct or response testimony in the form of an expert statement. An expert statement must i Be sworn under penalty of perjury by the expert witness;
ii Be organized into numbered paragraphs;
iii Be detailed as to the substance of the experts opinion and the basis and reasons therefor;
iv Disclose the facts or data considered by the expert witness in forming the expert witnesss opinions;
v Describe the expert witnesss qualifications, including a list of all publications authored and speaking engagements in the previous 10 years;
vi Include a list of all other cases in which the expert witness testified as an expert at trial or by deposition during the previous four years; and vii Include a statement of the compensation to be paid for the study and testimony in the case.
5 Unauthorized expert testimony.
Any expert testimony that is introduced in any way without the Boards express permission shall be stricken by the Board and shall not be considered in the Boards determination.
f Definitions. As used in this part, the term document shall refer to any tangible piece of information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilationsstored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form, whether in written or electronic form, an object, or otherwise. The Board shall read this definition broadly so that there is a
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comprehensive production of materials by each side needed to fairly decide matters before the Board, so long as that production is easily accomplished by a layperson.
225.2

Standard interrogatories.

a General. Parties in an active proceeding shall use the set of standard interrogatories provided on the Boards website. Standard interrogatories shall consist of information pertaining to:
1 The identity and nature of witnesses whom the parties plan to use in the proceeding, including contact information for the witnesses, if known;
2 The identity of any other individuals who may have material information related to the claims or defenses, including contact information for the individuals, if known;
3 Any agreement or other relationship between the parties relevant to the claim;
4 Any damages sought; and 5 A description of documents relevant to the claims and defenses.
b For a party asserting infringement.
In addition to the witness, damages, and document description information in paragraph a of this section, the standard interrogatories for a party asserting an infringement claim or responding to a claim for noninfringement shall consist of information pertaining to:
1 The allegedly infringed works copyright registration, to the extent such information differs from or adds to information provided in the claim;
2 The allegedly infringed works compliance with any relevant copyright formalities;
3 The partys ownership of the copyright in the allegedly infringed work;
4 Publication history for the allegedly infringed work;
5 The creation date and creation process for the allegedly infringed work, including whether the work is a joint or derivative work or was created through employment or subject to an agreement;
6 Where the allegedly infringed work is a derivative work, the preexisting elements in the work, including ownership of those preexisting elements, and rights to use those preexisting elements;
7 A description of the alleged infringers access to the allegedly infringed work, if known;
8 The basis for the partys belief that the opposing partys activities constitute infringement of the allegedly infringed work;
9 The discovery of the opposing partys alleged infringement by the party;

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10 A description and calculation of the damages suffered by the party as a result of the alleged infringement; and 11 Any attempts by the party to cause the infringement to be ceased or mitigated prior to bringing the claim.
c For a party asserting noninfringement. In addition to the information in paragraph a of this section, the standard interrogatories for a party responding to an infringement claim or asserting a claim for noninfringement shall consist of information pertaining to:
1 The partys ownership of the copyright in the allegedly infringing material;
2 The publication history of the allegedly infringing material;
3 The creation date and creation process for the allegedly infringing material, including whether any allegedly infringing work is a joint or derivative work or was created through employment or subject to an agreement;
4 Where the allegedly infringing material is a derivative work, the preexisting elements in the work, including ownership of those preexisting elements, and rights to use those preexisting elements;
5 Any information indicating that the party alleging infringement does not own a copyright in the allegedly infringed work;
6 All defenses to infringement asserted by the party and a detailed basis for those defenses;
7 The basis for any other reasons the party believes that its actions do not constitute infringement;
8 Any continued use of the allegedly infringing material; and 9 For a party responding to infringement claims or counterclaims, the revenues and profits the party has received directly related to the sale or use of the allegedly infringing material, as well as the deductible expenses directly related to that sale or use, and the elements of profit for that sale or use attributable to factors other than the copyrighted work.
d For a party asserting misrepresentation. In addition to the information in paragraph a of this section, the standard interrogatories for a party asserting a claim of misrepresentation under 17 U.S.C.
512f shall consist of information pertaining to:
1 The notification or counter notification that allegedly contained a misrepresentation;
2 The identity of the internet service provider to which the notification or counter notification was sent;
3 Any communications with the internet service provider, the parties, or
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