PTAB Guidance on suspected witness coaching

On Feb. 10, 2015, PTAB in a post-conference call order addressed the issue of inappropriate deposition witness coaching during an expert's deposition and provided guidance on the issue.  FLIR Sys., Inc. v. Leak Surveys, Inc., IPR2014-00434, Paper 12 (PTAB Feb. 10, 2015).  During the expert's deposition, the expert gave certain unexpected testimony during cross-exam.  Prior to redirect, the petitioner's counsel took a half-hour recess and allegedly had off-the-record discussions with the expert deponent.  On redirect, the deponent made an attempt to overcome the unexpected testimony.  Suspecting improper witness coaching during the recess, the patent owner's counsel questioned the witness about the nature of the off-the-record conversations but the witness refused to answer and claimed privilege.  Instead of calling the Board for assistance, the patent owner went ahead with the deposition and raised the issue during a conference call with PTAB a few days later and requested additional discovery of the off-the-record conversations and moved for sanctions.  Denying the patent owner's request, the Board found that the patent owner waived its right for further discovery when it failed to contact PTAB at the time of deposition.  In providing guidance on this issue, the PTAB gave the following tips: (1) hold the redirect immediately following cross-exam; (2) call the Board if a recess is requested after a cross and if a party believes the recess is inappropriate; (3) call the Board for assistance if deponent refuses to answer questions about off-the-record conversations during recess and a party suspects witness coaching; (4) file a motion to exclude all or portion of testimony arguing as to the weight to be given to the coached witness' testimony.