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[laiplawyer]

Hypo:

A files app and B's registration is cited.  A files cancellation against B's registration alleging fraud (failure to use mark on all of goods in reg) in declarations filed with 1(a) application and section 8. 

Parties exchanged initial disclosures.  Discovery is set to close in a week and neither A nor B has served any written discovery.  Looking for suggestions as to what B should do.  B does not really need any discovery from A, since all the evidence to refute a fraud allegation is in B's possession.  However, is it a bad idea to not take any discovery of A?  Or will serving discovery on A "remind" A that it has not taken discovery?  Ideally, B hopes nothing happens and that it can file a motion to dismiss for failure to prosecute, but this seems risky, even though B doesn't really need discovery from A.  Any thoughts, comments, questions are appreciated. 

Thank you in advance. 

[JSonnabend]

That's a tough question.  If B needs no discovery to prove its affirmative defenses, then why server discovery?  After discovery closes, B can make a motion for summary judgment based on the unrefuted evidence in its possession.

- Jeff

[Superchicken]

Under the rules, you can serve discovery on the last day even though responses would not be due (received) until 30 days after the close of the discovery period.  In that case, if B served discovery on the last day (knowing that A would not see it early on the last day) A would not have time to propound discovery, even if reminded.  If A really wanted discovery, they could probably file a motion for an extension -- but they'd need a very good reason to request such an extension.   Of course, if you really don't need discovery I would not waste my client's money or your time.