Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 ALLSTATE INSURANCE COMPANY AND ALLSTATE LIFE INSURANCE COMPANY
HEALTHY AMERICA, INC.
Opposition No. 76,315
November 21, 1988
L.E. Rooney, G.D. Krugman and R.F. Cissel
Opposers, pursuant to Fed.R.Civ.P. 37(b)(2)(C) and Trademark Rule 2.120(g), filed a motion for sanctions on September 12, 1988 which requests that a default judgment be entered against applicant in view of its failure to comply with the order to permit and provide discovery issued by the Board on August 11, 1988. As the basis therefor, opposers state that although the Board allowed applicant until August 31, 1988 to answer opposers' first set of interrogatories and to produce for inspection and copying the documents requested in opposers' first request for production, applicant has failed to comply with the Board's order.
Subsequently, on September 16, 1988, opposers submitted a motion to suspend action on their motion for sanctions, noting that while applicant's responses to their discovery requests had been received after the filing of their initial motion, the answers to the interrogatories are considered to be deficient. Specifically, opposers assert in support thereof that:
Applicant did not answer Opposers' Interrogatories under oath as required by Rule 33(a) of the Federal Rules of Civil Procedure. Rather, Applicant's counsel submitted answers on information and belief from information supplied to him by Applicant. Because of the critical issues in this Opposition relating to the length and continuity of Applicant's use of the mark its [sic] proposes for registration, Opposers must insist that the answers be verified by an officer of Applicant.
While Applicant has not complied completely in manner and form with the Board's Order of August 11 compelling discovery by August 31, Opposers are willing to accept the answers Applicant is offering provided they are certified by an officer of Applicant. On September 14, 1988, counsel for Opposers and Applicant discussed this issue by telephone. Applicant's counsel said he was willing to attempt to have an officer of Applicant verify the answers, but he wanted Opposers to withdraw their Motion.... Opposers are willing to withdraw their Motion ... once the Applicant complies completely with the Board's Order compelling discovery and serves answers on Opposers in accordance with Rule 33(a) of the Federal Rules of Civil Procedure. Opposers believe that suspension of action on their Motion for twenty days will allow Applicant time sufficient to verify its answers and serve them on Opposers.
Applicant, in response to the motion for sanctions, states in a brief received on September 19, 1988 that the motion should be denied since its responses to opposers' discovery requests were served on opposers' counsel on August 31, 1988 as required by the Board's order. With respect to the motion to suspend action on the motion for sanctions, applicant argues in a response received on September 23, 1988 that the motion should be denied since "Opposers' interrogatories have been answered as required by the Federal Rules of Civil Procedure, Rule 33(a)". In particular, applicant contends that:
*2 Opposers' base their Motion to Suspend on Applicant's alleged failure to answer the interrogatories as required by 33(a) FRCP. Opposers' allege that the verification is defective in that it has been provided by counsel on information and belief from information supplied by Applicant.
Opposer's [sic] objection is a novel one in view of current procedure under Rule 33(a) FRCP permitting corporations to answer through their counsel. A corporation can act through its officers and agents and can only provide information which has been supplied by employees or agents of the corporation. To require verification by an officer is an anachronism under modern Federal procedure.
Fed.R.Civ.P. 33(a) provides in relevant part that: [FN1]
Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. ....
Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. ....
In applying these provisions, the Board has stated that:
The distinction between the person signing the answers and the one signing the objections derives from the fact that answers reflect personal knowledge of the facts sought to be elicited by way of the interrogatories while objections concern legal arguments as to the relevance, materiality or admissibility of the matters in question. While an attorney may conceivably be personally knowledgeable about the affairs of a corporation and therefore be a proper person to answer interrogatories, there is nothing in the record of the instant proceeding to indicate same. That is to say, an attorney may not swear to answers in the absence of a showing that he is either an officer of the answering party or that he has been formally appointed to perform as an agent for the purpose of enabling him to answer on the basis of his own personal knowledge. It should be noted in respect to the foregoing that answers to interrogatories are often followed by the taking of the oral deposition of the person who signed the answers. Thus, an attorney who signed answers despite his lack of personal knowledge might soon subject himself to the embarrassment of being deposed as a witness, a result certainly not contemplated by Rule 33 FRCP.
Miles Laboratories, Inc. v. Instrumentation Laboratory, Inc., 185 USPQ 432, 433 (TTAB 1975), reconsideration denied, 187 USPQ 127 (TTAB 1975). [FN2] Current treatises, however, make it clear that in the case of a corporate client, an attorney may verify answers to interrogatories irrespective of whether the attorney has personal knowledge of the facts stated. [FN3] The rationale for such practice is that (footnotes omitted):
*3 [Regardless of] whoever answers the interrogatories and verifies the answers on behalf of the corporation, the corporate party is the only one "to meet the responsibility arising from such answers," and will be estopped to deny the authority of the person chosen by it to speak for it, or to deny the truthfulness of the answers. It is equally clear that whoever it is who answers the interrogatories, the answers must include whatever information is available to the party. This being true, it seems to make little or no difference to the interrogating party who verifies the answers and since there seems to be no reason why the interrogated party might not chose any agent it likes, the interpretation of who may be termed an "agent" under the Rule becomes completely unimportant.
4A J. Moore, J. Lucas & D. Epstein, Moore's Federal Practice ¶ 33.07 (1984) at 33-46 and 33-47.
Accordingly, and while not the better practice, [FN4] the Board agrees with applicant that interrogatory answers which have been verified by its attorney are permissible under Fed.R.Civ.P. 33(a). [FN5] Opposers' motions are therefore denied.
In view of the above, proceedings are resumed and trial dates, including the period for discovery, are rescheduled as set forth in the accompanying trial order.
FN1. Although neither party has provided a copy of applicant's answers to opposers' interrogatories, the Board will assume for purposes of opposers' motions that the deficiency claimed by opposers is not a lack of verification of the answers but, rather, that the verification has been made by the attorney for applicant instead of an officer of applicant.
FN2. See also, Daimler-Benz A.G. v. Hibner Products Mfg., Inc., 189 USPQ 479, 480 (TTAB 1976), holding that an attorney may answer interrogatories for a corporate client provided that counsel is personally knowledgeable of the matters to which the interrogatories are directed and is authorized by the client to answer the interrogatories in its behalf.
FN3. As stated in 8 C. Wright & A. Miller, Federal Practice and Procedure § 2172 (1970) at 538, the present language of Fed.R.Civ.P. 33(a), by "allowing either an officer or agent to answer, clearly authorizes answers by an attorney," citing in footnote 42 the following cases in support thereof: U.S. v. 42 Jars of "Bee Royal Capsules," 264 F.2d 666, 670 (3d Cir.1959) ("Under the amended rule the agent who answers on behalf of the corporation does not need to have personal knowledge. The corporation's attorney will do."); Fernandez v. United Fruit Co., 50 F.R.D. 82, 85-86 (D.Md.1970) ("An attorney for a corporation may sign and swear to answers to interrogatories addressed to it if he makes oath that to the best of his knowledge, information and belief the answers are true and contain all information which is available to the corporation on the interrogatories which are being answered."); Segarra v. Waterman S.S. Corp., 41 F.R.D. 245 (D.P.R. 1966) (attorney is proper person to answer interrogatories addressed to a corporate client and answers are not defective on the theory that they had to be signed under oath by an officer of the corporation); and Jones v. Goldstein, 41 F.R.D. 271 (D.Md.1966) (it is proper for defendant's attorneys who had personal knowledge of facts to sign answers when interrogatories in civil action involving arrest that were addressed to corporate defendant did not designate any particular person to answer). Thus, "[i]f the corporation designates someone to answer interrogatories for it, he is its agent for that purpose, and the answers he gives are clearly usable against the corporation as representative admissions". Id.
To the same effect is 4A J. Moore, J. Lucas & D. Epstein, Moore's Federal Practice ¶ 33.07 (1984) at 33-43 and 33-44, which provides that (footnotes omitted):
Under the Rule as amended, answers to interrogatories addressed to a corporation or other juridical person must speak of the composite knowledge of the party, whether or not any officer thereof has personal knowledge of the facts.
Under the original wording of Rule 33 it was held that an attorney could not verify answers to interrogatories addressed to a corporation. It seems, however, that an attorney comes within the term "agent" as it is now used in Rule 33. Since the answers are the answers of the party, regardless of who signs them, the interrogating party should not be heard to complain if the answers are signed by the attorney.
Besides citing Harbor Shrimp Co. v. Puritan Marine Underwriters, Inc., 21 F.R.Serv.2d 618 (D.Mass.1975), which is the case relied upon by applicant for the proposition that counsel for a corporation may sign and swear to interrogatories that are addressed to the corporation itself, the treatise also refers to Jones v. Goldstein, supra, which is the authority relied upon by the Board in its decisions in Miles Laboratories. In criticizing the qualification expressed in Jones that the attorney signing an answer to an interrogatory must have "personal knowledge of the facts set forth in the answer," the treatise points out that "[i]n view of the duty to supply information in possession of the corporation, it seems that this factor should not be a determining factor". Id. at n. 8.
FN5. We again emphasize, however, that when an attorney verifies interrogatory answers on behalf of a corporate client, the answers must include whatever information is available to the client.