Guidance on Conferring with a Witness Between Cross-Examination and Re-Cross IPR2014-00116


Takeaway: The Board’s Testimony Guidelines on cross-examination do not prohibit counsel from conferring with the witness once cross-examination concludes, and before re-cross begins.

In its Order, the Board denied a request for a conference call regarding the Board’s Testimony Guidelines on when cross-examination of a witness “has concluded” to determine if counsel can suggest to the witness the manner in which any questions should be answered. The Board denied the request, because the question was moot since the deposition had concluded.

However, the Board explained that “‘cross-examination’ here refers to either cross-examination or re-cross, but does not refer to the entire time frame between when cross-examination commences, and until re-cross examination concludes.” The Board further explained that “[t]he prohibition of conferring with the witness ends once cross-examination concludes, and, if relevant, begins again when re-cross commences, and continues until re-cross concludes. The prohibition does not exist, however, during the time frame between conclusion of cross-examination and start of re-cross.” Parties can, however, agree among themselves in advance of a deposition that counsel may not confer with a witness until the deposition is over, i.e., after re-cross, if any occurs.

Focal Therapeutics, Inc. v. Senorx, Inc., IPR2014-00116
Paper 19: Order on Conduct of the Proceeding
Dated: July 21, 2014
Patent: 8,288,745
Before: Lora M. Green, Francisco C. Prats, and Jacqueline Wright Bonilla
Written by: Bonilla