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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
representatives, or others acting on the partys behalf.
2 Electronically stored information.
Documents responsive to the standard requests, or any additional requests permitted by the Board, may include electronically stored information ESI, including emails and computer files. A reasonable search under the circumstances shall include the ESI of the party and the partys agents, employees, representatives, or others acting on the partys behalf, except that i ESI searches shall not exceed manual searches that are easily accomplished by a layperson; and ii Parties need not conduct searches that would reasonably require the assistance of third parties, such as a document vendor that the party would have to hire to assist with or accomplish document collection or storage.
3 Voluminous productions.
Responses to document requests that include large amounts of irrelevant or duplicative material shall constitute bad-faith conduct.
4 Responsive documents no longer in possession of party. A party shall disclose any materially responsive documents that the party is aware exist or once existed, but are no longer in the possession of that party, and shall explain why the documents are no longer in the possession of the party, including the circumstances surrounding any destruction of documents.
5 Duty to update. A party has an obligation to preserve all material documents and to update its production of documents by providing to the other parties any documents it later finds responsive to the Boards standard requests or any other document requests allowed by the Board as soon as practicable after the discovery of such documents.

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225.5

Disputes and sanctions.

a Obligation to attempt resolution.
Parties shall attempt in good faith to resolve any discovery disputes without the involvement of the Board. A party must confer with an opposing party, at least through a phone call, in an attempt to reach a resolution prior to raising any discovery dispute with the Board.
b Request for conference to resolve dispute. If an attempt to resolve a discovery dispute fails, the party seeking discovery may file a request by letter, no more than three pages not including the attachments referred to in this paragraph b, for a conference with the Board. The letter request shall:
1 Describe the dispute;

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2 State that partys position with respect to the dispute;
3 Include a statement that the request is made following an attempted resolution call between the parties along with the date of such call, or explain why a call was not possible; and 4 Attach the relevant discovery responses already provided by the opposing party, except for disputes pertaining to production of document requests, which shall attach a list of documents produced in response to the requests.
c Response to request for conference.
Within seven days of the date of service of the letter request, an opposing party may submit a response to a request for a conference by letter, no more than three pages, not including any attachments, which states the opposing partys position with respect to the dispute. No reply letters shall be permitted, unless the Board grants leave for a reply.
d Determination by Board.
Following receipt of the request and any response, the Board may schedule a conference to address the discovery dispute in its discretion. One or more Officers may participate in the conference. During or following the conference, the Board shall issue an order resolving the discovery dispute and, in the event of a decision in favor of the aggrieved party, setting a deadline for compliance.
e Failure to comply with order. If a party fails to timely comply with the Boards discovery order, the party seeking discovery may send a notice to the noncompliant party giving the noncompliant party 10 days to comply.
If the noncompliant party fails to comply within 10 days of receipt of the notice, the aggrieved party may file a request for sanctions with the Board.
f Sanctions1 Form of request for sanctions. A request for sanctions shall be no more than 10 double-spaced pages, not including the attachments referred to in this paragraph f1, in 12point 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 and shall attach the relevant discovery responses already provided by the opposing party, except for disputes pertaining to production of document requests, which shall attach a list of documents produced in response to the requests.
2 Form of response to request for sanctions. Within 14 days of the date of service of the request for sanctions, the opposing party may file a response to the request. The response shall be no more than 10 double-spaced pages in 12-point font or larger, for both body
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text and footnotes, with at least oneinch margins on the top, bottom, left, and right of each page. No reply papers will be accepted absent leave of the Board.
3 Standard for granting request.
Following receipt of a request for sanctions and any response from the opposing party, the Board may hold a conference to address the request for sanctions. In the Boards sole discretion and upon good cause shown, sanctions may be imposed if the opposing party is found to be noncompliant with the Boards discovery order.
4 Relief. Sanctions imposed for noncompliance with a discovery order of the Board may include an adverse inference with respect to the disputed facts directly related to the discovery in question against the noncompliant party.
5 Implications for award of attorneys fees and costs. The Board may consider the assessment of discovery sanctions when considering the awarding of attorneys fees and costs during a final determination.
8. Part 226 is added to read as follows:
PART 226SMALLER CLAIMS
Sec.
226.1 General.
226.2 Requesting a smaller claims proceeding.
226.3 Nature of a smaller claims proceeding.
Authority: 17 U.S.C. 702, 1510.
226.1

General.

When total monetary relief sought in a claim does not exceed $5,000
exclusive of attorneys fees and costs, the claim may be adjudicated under the procedures set forth in this part.
226.2 Requesting a smaller claims proceeding.

A claimant may request consideration of a claim under the smaller claim procedures in this part at the time of filing a claim. The claimant may also amend its filing at any time prior to service of the claim to modify its selection concerning smaller claim procedures. If the initial notice has already been issued, the claimant shall request reissuance of the initial notice with the smaller claim proceeding notice. Once the claimant chooses whether to proceed via a smaller claims proceeding or via the standard proceeding in 37 CFR parts 222 and 225, it may not amend its choice without consent of the other parties and leave of the Board.

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