Discovery in U.S. Trademark Litigation
In my previous posts on trademark litigation and procedure, Jurisdiction for U.S. Trademark Violations, The Consequences of Not Answering a U.S. Trademark Violation Suit and U.S. Trademark Litigation Process, I explained in different aspects of litigating trademark disputes in U.S. courts. In my article on the U.S. Trademark Litigation Process, I briefly covered the process of “discovery.”
What is discovery? Discovery is a part of the U.S. Trademark Litigation Process in which both parties exchange information. This information exchange may take place formally by the submission of written questions, requests to admit specific factual allegations or, rarely, the requirement that representatives of either party appear at a certain place and time to answer questions under oath. All questions must be answered honestly and no requested information may be hidden from view. The purpose of discovery and the U.S. Trademark Litigation Process is to determine the facts as they are in order to come to a fair resolution of the dispute.
什么是发现？ 发现是美国商标诉讼程序中的一部分，双方交换信息。 这种信息交换可以通过提交书面问题正式提出，要求接受具体的事实指控，或者，这种情况比较少见，要求任何一方的代表在某个时间出现在某个地点在宣誓之下回答问题。 所有问题都必须诚实地回答，并且不能隐藏任何要求的信息。 发现和美国商标诉讼程序的目的是确定事实的真相，以便公正地解决争端。
The process of discovery in the U.S. litigation process is often misunderstood and can be intimidating to both American and foreign litigants. It is important that litigants understand the purpose of discovery and the role it plays in the U.S. Trademark Litigation Process. Even to U.S. litigants, discovery in U.S. trademark litigation can seem somewhat like their lawyer is searching for compromising information to turn over to the adversary. The reason that attorneys insist on complete and full disclosure is due not to a lack of loyalty to the client or to a lack of desire to win the case but rather the nature of discovery in U.S. trademark litigation.
美国诉讼程序中的发现过程经常被误解，并且可能会让美国和外国诉讼当事人感到威胁。 诉讼当事人理解发现的目的及其在美国商标诉讼程序中扮演的角色非常重要。 即使对美国诉讼当事人来说，美国商标诉讼中的发现看起来有点像他们的律师正在寻求妥协信息以转交给对手。 律师坚持完全和全面披露的原因不是因为缺乏对客户的忠诚，也不是因为缺乏胜诉的愿望，而是美国商标诉讼中发现的性质。
U.S. discovery is often viewed disfavorably in countries with civil law systems. The process is seen as being overly broad, inexpensive and inefficient. For example, in China, discovery, if undertaken at all, is actively managed by the judge. The plaintiff and defendant can be required to exchange evidence. Protective orders forbidding the disposal or destruction of evidence may be available in some circumstances. Chinese judges maintain control of the process and evidence.
在大陆法系国家，美国的发现往往不被赞同。 这个过程被认为过于宽泛，廉价和低效。 例如，在中国，如果进行的话，发现是由法官积极主导的。 原告和被告可以被要求交换证据。 禁止处置或销毁证据的保护令可能在某些情况下可用。 中国法官维持对程序和证据的控制。
American discovery differs in that the process is driven and directed by the parties. The lawyers o each side issue requests to the other. As the evidence is not precisely defined, requests tend to be broad.
美国的发现不同之处在于，这个过程是由各方推动和指导的。 双方的律师向另一方发出请求。 由于证据没有准确定义，请求往往很广泛。
Types of Discovery Requests
Discovery requests take the following forms:
Each party may direct up to twenty-five written questions to the other which must be answered under oath.
Requests to Produce Documents and Things:
Each party may direct requests to produce documents and things to the other. Requests for production of documents are not subject to numerical limitations.
Requests for Admission:
Each party may ask the other to admit certain facts or to stipulate to the genuineness of documents. These requests are also not subject to numerical limitations. Requests for admission are deemed admitted if not timely answered.
各方可以要求另一方承认某些事实或规定文件的真实性。 这些要求也不受数字限制。 如果未及时回答，则视为承认申请被视为承认。
Each party may ask the other to personally appear to answer questions under oath. Depositions for U.S. based litigation are not permitted on the Chinese mainland. Depositions may be conducted in Hong Kong, at the U.S. embassy in Beijing or at a U.S. consulate.
Truthfulness is Key
The purpose of civil litigation is to resolve disputes based on the facts as they are. The process of discovery in U.S. trademark litigation does not permit either party to hide relevant facts. If it is determined that documents or facts have been secreted or an attempt has been made to secrete them, the judge may impose sanctions. Sanctions may include the striking of a certain defense, monetary fines or other punishment. In some cases, such as where a party refuses to appear for a deposition or it is determined that vital documents were intentionally withheld, the judge may enter a default against the offending party. The entry of default ends the case in favor of the non-offending party and requires the defaulting party to suffer The Consequences of Not Answering a U.S. Trademark Violation Suit. If it is determined that the sanctioned party’s attorney advised the secretion of documents or other discoverable information, the attorney may also be fined or punished. Therefore, the attorneys for both sides are required to ascertain that full disclosures are provided. This is to protect the interests of both the litigant and the attorneys.
Do Not Fear Discovery in U.S. Trademark Litigation
The plaintiffs in trademark infringement suits filed in the U.S. are typically large corporations. They and the lawyers who handle suits on their behalf know that discovery in U.S. trademark litigation is confusing and intimidating to foreign litigants. If a defendant is unwilling to provide information of is so fearful that they choose to settle their case for a larger amount than might be rightfully due to the plaintiff, then a defendant has permitted the plaintiff to win. Defendants should not fear discovery in U.S. trademark litigation but should cooperate fully so the plaintiff is unable to make any claim that the defendant was not cooperative. Remember, defendants also have the right to ask plaintiff relevant questions and to obtain case related documents which plaintiffs may not want to turn over. Plaintiffs are subject to the same punishment as defendants when they fail to make full disclosures.
在美国申请商标侵权诉讼的原告通常是大公司。 他们和代表他们处理诉讼的律师都知道，美国商标诉讼中的发现令外国诉讼当事人感到困惑和恐吓。 如果被告不愿意提供可怕的信息以致他们选择以比原告应得的数额更大的数额和解案件，那么被告已允许原告胜诉。 被告不应担心在美国商标诉讼中发现，而应充分合作，这样原告不能提出被告不合作的主张。 请记住，被告也有权向原告提出相关问题，并获取原告不愿意交出的案件相关文件。 原告在未完全披露信息时受到与被告相同的处罚。
If you are now facing a lawsuit in the U.S. for Trademark Violation, Contact The Law Office of L. Ford Banister, II immediately. Attorney Banister is licensed to practice law by the State of New York and the Federal District Court for the Northern District of Illinois. Attorney Banister will guide you through the U.S. Trademark Litigation Process and will handle all aspects of Discovery in U.S. Trademark Litigation on your behalf.
如果您现在在美国因商标侵权而面临诉讼，请立即联系L. Ford Banister II律师事务所。 Banister律师是纽约州和伊利诺伊州北部地区联邦地区法院执业律师。Banister律师将指导您完成美国商标诉讼程序，并将代表您处理美国商标诉讼中Discovery的各个方面。
Discovery in U.S. Trademark Litigation