Recently, the PTAB excluded Patent Owner expert witness testimony because during the expert’s deposition, on redirect, Patent Owner’s counsel asked leading questions. IPR2014-01146, Paper 36, pg. 6. The PTAB relied on Federal Rule of Evidence 611(c), and cited to McCormick on Evidence, § 6 (7th ed. 2013), which states “[a] leading question is one that suggests to the witness the answer desired by the examiner.” Is the PTAB, in reading a cold record and applying an unforgiving reading of the rule, setting a dangerous precedent on admissible testimony?
One excluded question and answer is reproduced below, noting in italics the specific part of the question that Petitioner argued, and the PTAB agreed, were the “contextual clues” that suggested an answer.
Q: Does setting a VCR timer to record a program involve downloading data to the VCR?
A: Not that I’m aware of. I’ve only ever seen VCRs where you can program the timer via the remote control or manually on the VCR.
The PTAB ruled that this question (and two others) suggested to the witness the answer desired by the examiner. Is the PTAB being too pedantic with the rules? If we take the PTAB’s almost-literal approach to leading, wouldn’t most questions, on some level, suggest a desired answer or a portion of a desired answer?
“If we take the PTAB’s almost-literal approach to leading, wouldn’t most questions, on some level, suggest a desired answer or a portion of a desired answer?”
Q: What is your favorite color?
One might argue that this question suggests to the witness that the examiner would like the witness to have a favorite color (though not necessarily a specific color). Maybe this is reductio ad absurdum, but so many benign questions, though slightly less than open-ended, could be argued to suggest a desired answer, or a portion of a desired answer. If we eliminate all such questions, we are left with: pure, open-ended wilderness.
Q: How does a VCR work?
A: [insert ten minute narrative nowhere near the subject matter of data download or the timer]
Now is probably the time to mention that questions calling for narrative answers are objectionable, too. See, e.g., In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 618 (D. Nev. 1998). I promise I won’t entertain the argument that the question above suggests to the witness that a VCR, in fact, works (though that argument exists under the PTAB’s approach).
As with most things dealing with testimony, the right approach is usually balance. “What happened next?” could be both leading (suggests that something happened next), and calling for a narrative. One would be hard-pressed to find a judge willing to sustain an objection on either ground.
The PTAB might be overlooking the practical realities of human dialogue. Judges that preside over live testimony trials are constantly exposed to flawed verbal discourse, which can include examinations directed by highly skilled litigators. To be efficient and fair, the court must allow leeway in testimony. Otherwise, trials would last forever, littered with thousands of objections, and the relevant facts would be lost on the jury, buried in a heap of garbage elicited by a string of purely open-ended questions.
But what am I saying? The plain wording of Rule 611(c), in fact, codifies leeway, stating “[l]eading questions should not be used on direct examination except as necessary to develop the witness’s testimony” and “[t]he court should exercise reasonable control over the mode … of examining witnesses.” The rule, then, appreciates the imperfections of testimony and gives judges considerable latitude to keep things moving along. Does a strict reading of the rule on leading questions, then, deprive the deposition process of some efficiency?
Yes, that last question is definitely leading.
Because the PTAB almost always rules on objections, including leading objections, in its final written decision, there is no time to cure potential evidentiary gaps. This aspect should, and often does, compel APJs to deny these types of motions, or find them moot in view of the final decision, though not in this case. Perhaps this ruling is meant to limit the patent owner’s arguments on appeal? In any event, the PTAB’s decision is likely to cause an uptick in challenges to leading questions. Practitioners might consider addressing leading objections, at least for important testimony, by rephrasing questions, maybe more than once, even if it adds time and headache to the process.