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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules attached to the partys document statement.
2 Separation of irrelevant portions.
In any large documents, relevant and material matter in an exhibit must be plainly marked to distinguish it from immaterial or irrelevant material.
3 Summary exhibits. The contents of voluminous documentary evidence which cannot be conveniently examined at the hearing may be presented in the form of a chart, summary, or calculation. Absent leave of the Board, evidence supporting the summary exhibit must have been produced to the other parties in discovery and admitted as exhibits.
d Objections. Parties are entitled to raise objections to evidence during the course of the hearing and to raise an objection that an opposing party has not furnished non-privileged underlying documents.
e New exhibits for use in crossexamination or redirect examination.
Exhibits not submitted as part of written testimony may be shown to a witness on cross-examination or redirect examination only for the purposes of impeachment or rehabilitation. Copies of such exhibits must be distributed to the Board and other parties before being shown, unless the Board directs otherwise.
7. Part 225 is added to read as follows:
PART 225DISCOVERY
Sec.
225.1 General practices.
225.2 Standard interrogatories.
225.3 Requests for admission.
225.4 Standard production of document requests.
225.5 Disputes and sanctions.
Authority: 17 U.S.C. 702, 1510.

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225.1

General practices.

This part prescribes rules pertaining to procedures for discovery conducted in proceedings before the Copyright Claims Board Board.
a Standard discovery practice.
Except as otherwise provided in this section, discovery in proceedings before the Board shall be limited to the methods set forth in this part and shall use the standard forms provided on the Boards website. Discovery responses and documents shall be served on the other parties, but shall not be filed with the Board unless as part of written testimony or as needed in support of other filings.
1 Certifications. All discovery material exchanged among the parties or submitted to the Board must include a certification by the party submitting such material that it is accurate and truthful.

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2 Form of requests to Board.
Requests to the Board related to discovery may be raised to the Board during a conference or by letter, as set forth in this section.
b Timing of discovery. The exchange of discovery material shall take place at the times and within the deadlines specified by the scheduling order. The Board may modify the discovery deadlines set forth in the scheduling order at the request of any party upon a showing of good cause or through its own initiative. Such requests may be made orally during a conference with the Board or by letter. Any letter requests shall be limited to two pages and shall set forth the original date of the deadline and the requested extension, provide the basis for the scheduling modification, indicate whether the other parties consent or object to the modification, and whether any other dates in the scheduling order will be affected by the modification.
Any party that objects to the requested scheduling modification may file a response letter within three days of the date of service of the letter request, which shall be limited to two pages and set forth the basis for the objection.
c Conferences. The Board shall hold a pre-discovery conference and a postdiscovery conference, as set forth in 37
CFR 222.10. The Board may hold additional conferences to manage discovery and resolve any disputes, at its own election or at the request of any party. Conferences may be held by one or more Copyright Claims Officers Officers, with the exception of postdiscovery conferences and any conferences to decide a dispute, both of which shall be held by one or more Officers. Conferences shall be held virtually.
d Request for additional discovery.
Any party may request additional discovery within the deadlines set forth in the scheduling order.
1 Allowable discovery. Except for the standard discovery provided in this part, any additional discovery requested must be narrowly tailored to the issues at hand, not covered by the standard discovery set forth in this part, highly likely to lead to the production of information relevant to the core issues of the matter, and not result in an undue burden on the party responding to the request.
2 Standard for additional discovery.
The Board will grant a request for additional discovery upon a showing of good cause. In considering a request for additional discovery, the Board shall balance the needs and circumstances of the case against the burden of additional discovery on any party, along with the
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amount in dispute and overall goal of efficient resolution of the proceeding.
3 Consent from parties. Prior to filing a request for additional discovery, the requesting party should make reasonable efforts to secure the consent of, or a compromise with, the other party regarding the proposed additional discovery request.
4 Form of request. A request for additional discovery must be made by letter, no more than three pages, not including the additional requests themselves i Specifically indicating the means of additional discovery requested and the information sought;
ii Setting forth the basis and justifications for the request;
iii Indicating whether the other parties consent or object to the request;
and iv Attaching a copy of the additional discovery requests.
5 Response to request. Within seven days of the date of service of a letter requesting additional discovery, any party that opposes the request may file a response letter of no more than three pages. No reply letters shall be permitted, unless the Board grants leave for a reply.
e Request for expert witnesses. An expert witness may be used in a proceeding only with leave of the Board.
The use of expert witnesses in proceedings before the Board is highly disfavored and requests shall be rarely granted.
1 Standard for permitting expert witnesses. The Board shall grant a request by a party to introduce an expert witness only in exceptional circumstances and upon a showing that the case cannot fairly proceed without the use of the expert. In considering a request for an expert witness, the Board shall balance the needs and circumstances of the case, and whether the request is made by one party or jointly among the parties, against the burden that permitting the expert testimony would impose on any other party, the costs to the opposing party of retaining a rebuttal witness, the amount in dispute, and the overall goal of efficient resolution of the proceeding. If the Board grants a request by a party to introduce an expert witness, an opposing party shall have the opportunity to introduce a rebuttal expert witness as a matter of course within an appropriate amount of time set by the Board. The Board will set a schedule for the service of the expert report and any rebuttal report and will adjust the dates in the existing scheduling order as needed.

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