EVIDENCE IN IP SUITS: HOW INTERROGATORIES ARE DIFFERENT FROM CROSS-EXAMINATIONS

Business Jun 19, 2021 0 Add to Reading List

INTRODUCTION –

In intellectual property (IP) lawsuits, evidence can be gathered through a variety of ways, including discoveries and cross-examinations.

Pre-trial discovery permits parties to share information regarding the evidence and witnesses who will be presented to the court before the trial begins. Interrogatories, depositions, subpoenas, demands for production of documents, and inspection are all sorts of discoveries that can be utilized in a lawsuit. The practice of interrogating witnesses by the opposing party is known as cross-examination.

This note analyses and contrasts two types of evidence-gathering procedures utilized in IP matters, namely interrogatories and cross-examinations, as noted in a recent IP judgment by the Delhi High Court.

INTERROGATORIES – WHAT ARE THEY, AND HOW DO THEY WORK?

Before the trial of an action, one party to an action may submit written interrogatories to the other party, which the answering party must answer under oath and in writing. While the word "interrogatory" appears to come from the term "interrogate," interrogatories are not as broad in scope as a discovery examination and are not the same as cross-examination. Interrogatories were first used as a tactic in the discovery process in the 15th century. Interrogatories have shown to be ineffective alternatives for oral examinations for discovery saves in limited circumstances, at least in Alberta. In the case of a corporate party whose employees and former employees have testified about the problems at hand in the action, interrogatories are routinely used. Rather than asking the same questions of the corporate office as the employees and former employees, the questioning party is often better served by using interrogatories to have the corporate officer acknowledge that the evidence of the employees and former employees is "some of the corporation's information," among other things.

CROSS-EXAMINATION – WHAT ARE THEY, AND HOW DO THEY WORK?

Cross-examination is defined in Section 138 of the Indian Evidence Act of 1872. The opposing party re-examines the witness in cross-examination. The opposing counsel posed certain questions in an attempt to get the witness to expose some of the case's concealed facts.

A different form of opportunity for an attorney to question a witness in cross-examination. The witness is then exposed to cross-examination following his or her direct examination. Cross-examination, in particular, permits the opposing party's counsel to interrogate the witness in an attempt to unearth material that was not revealed during a direct examination or to impeach the witness. When an attorney tries to impeach a witness, he or she is attempting to cast doubt on the witness's credibility in front of the court and jury. The goal of impeaching a witness is to demonstrate to the jury that the witness's testimony under direct examination or throughout the trial is untrustworthy. Importantly, an attorney may lead the witness during cross-examination. When cross-examining a witness, trial counsel uses a strategy known as leading a witness. The answer to the inquiry is effectively implied by a leading question.

INTERROGATORIES VS CROSS-EXAMINATION –

In IP litigation, there are two methods for gathering evidence: interrogatories and cross-examination. Before the trial, interrogatories are conducted; after the trial, cross-examination is conducted. Each has its own set of benefits and drawbacks. Some people abuse interrogatories by requesting that secret material be revealed in a suit. Few persons avoid interrogations as a result of these approaches. Such approaches violate the interrogatories’ very purpose. However, courts have taken notice of these activities and have ruled that they are illegal. The court denies the party's plea for sensitive information via interrogatories in Centrient Pharmaceuticals vs. Dalas Biotech Ltd. ((High Court of Delhi) CS (COMM) 218/2019). During cross-examination, however, the party can get confidential information. Cross-examination takes a lot of time and money, whereas interrogatories save a lot of time and money. When the trial begins, cross-examination enters the scene, and the trial takes time, energy, and other resources. If a party is certain that they will win in court, they should go for it. Otherwise, interrogatories are a good way to fix the problem.

Inquiries should be related to the case and answered in interrogatories, but even if they are irrelevant to the case, such questions will be permitted in cross-examination. Interrogatories aid in the resolution of a problem in a short amount of time, but cross-examination takes at least three years. In any event, interrogatories and cross-examinations have their value and relevance. We can't say that one way of gathering evidence is superior to another. It varies according to the situation. Some instances were resolved by interrogatories, while others were resolved through cross-examination at the same time. There are advantages and disadvantages to interrogatories. Cross-examination, too, has benefits and drawbacks. It is up to the parties to decide whether they want cross-examination or interrogatories. If they decide to go to court, the parties should have enough money and time to do so.

The Patna High Court reaffirmed in Ram Pravesh Rai v. Sri Rajesh Kumar Singh that interrogatories could be used to speed up a trial, but only where one side is "fishing" or has a fixed mind.

CONCLUSION –

Interrogatories and cross-examinations are distinct in that the former requires the court's permission, whilst the latter is a standard (and default) procedure. Both play important but separate roles in a trial, especially in highly technical areas like IP disputes. They can help the trial move forward in a variety of ways, including disclosing critical documents in interrogatories or expert witness remarks in cross-examinations. A key component of a fair trial is that both sides have equal access to relevant evidence.

However, parties might take advantage of these possibilities to postpone a trial or employ interrogatories instead of cross-examinations to collect secret information. Courts are highly leery about such exploitation and have said repeatedly that interrogatories cannot substitute for cross-questioning. Interrogatories must be addressed at a pre-trial stage and must have a close relationship to the matter in question, whereas cross-examinations allow for a larger range of questions to be asked.

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