ESTTA Tracking number:
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`ESTTA1324650
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`Filing date:
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`11/27/2023
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`91284071
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`Party
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`Correspondence
`address
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`Submission
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`Filer's name
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`Filer's email
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`Signature
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`Date
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`Plaintiff
`Bird & Cronin, LLC, Dynatronics Corporation
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`JOSHUA S RUPP
`KIRTON MCCONKIE
`36 S STATE STREET
`#1900
`SALT LAKE CITY, UT 84111
`UNITED STATES
`Primary email: jrupp@kmclaw.com
`Secondary email(s): dtingey@kmclaw.com, keixenberger@kmclaw.com,
`jblood@kmclaw.com
`801-328-3600
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`Motion to Quash
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`Joshua S Rupp
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`jrupp@kmclaw.com, hturner@kmclaw.com, dtingey@kmclaw.com, agar-
`rett@kmclaw.com
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`/s/ Joshua S. Rupp
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`11/27/2023
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`Attachments
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`FINALOpposers Motion for Protective Order w exhibits.pdf(702582 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Mark: PRODY
`Serial No. 90/884,850
`Published for Opposition: November 22, 2022
`
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`BIRD & CRONIN, LLC; DYNATRONICS
`CORPORATION,
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`Opposers,
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`
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`v.
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`MARY R. PRODY,
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`Applicant.
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`
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`Opposition No. 91284071
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`OPPOSERS’ COMBINED MOTION FOR
`PROTECTIVE ORDER AND/OR
`MOTION TO QUASH NOTICES OF
`DEPOSITION
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`Pursuant to Rules 7, 26, and 30 of the Federal Rules of Civil Procedure (the “Rule(s)”),
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`Trademark Rule 2.120, and Sections 410, 521 and/or 526 of the Trademark Trial and Appeal Board
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`Manual of Procedure (“TBMP”), Opposers Bird & Cronin, LLC and Dynatronics Corporation
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`(collectively, “Opposers”) together hereby respectfully move the Trademark Trial and Appeal
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`Board (the “Board”) for a protective order or to otherwise quash Applicant Mary R. Prody’s
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`(“Applicant”) (a) Amended Notice of Rule 30(b)(6) Deposition of Opposer Bird & Cronin, LLC1
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`and (b) Amended Notice of Rule 30(b)(6) Deposition of Opposer Dynatronics Corporation2
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`(collectively, the “Amended Notices”), temporarily preventing Applicant from conducting the
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`Rule 30(b)(6) depositions of Opposers in the manner set forth in the Amended Notices served upon
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`Opposers on November 20, 2023 pending the resolution of Opposers’ objections to the Amended
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`1 Attached as “Exhibit A”.
`2 Attached as “Exhibit B”.
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`Notices,3 including but not limited to objections premised on Opposers’ pending motion to suspend
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`(18 TTABVUE), discussed in greater detail infra.
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`FACTUAL BACKGROUND
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`1.
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`On September 1, 2023, discovery in the above-captioned Opposition proceeding
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`commenced as Applicant and Opposers, respectively, served initial disclosures on each other, in
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`accordance with the schedule established for this proceeding. (See 12 TTABVUE.)
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`2.
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`On October 9, 2023, former counsel for Applicant withdrew as Applicant’s
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`attorney, and Applicant’s new counsel served discovery requests upon Opposers. (See, e.g., 16
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`TTABVUE.) The discovery requests included fifty-eight (58) requests for production of
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`documents, forty-five (45) interrogatories, and eight (8) requests for admission. (See, e.g., id.) A
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`week later, Applicant served a second set of discovery containing two additional requests for
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`production of documents. (See, e.g., id.)
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`3.
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`Despite diligently working to gather the information and documents necessary to
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`respond in good faith to Applicant’s requests, it became apparent that Opposers needed more time
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`to respond to Applicant’s discovery requests due, in part, to Opposers’ intervening attention to
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`settlement efforts (consistent with historical settlement negotiants predating the appearance of
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`Applicant’s new counsel), as well as complications arising from Dynatronics Corporation’s
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`acquisition of Bird & Cronin in the latter stages of the parties’ business relationship as well as
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`recent changes in the management and leadership of Opposers, necessitating bringing previously
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`uninvolved people up to speed on the issues involved in the present dispute. (See, e.g., id.)
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`Moreover, where the parties’ business relationship originated some seventeen (17) years ago, the
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`3 See Opposer’s Combined Objections to Applicant’s Amended Notice of Rule 30(b)(6)
`Deposition of Opposer Bird & Cronin, LLC and Applicant’s Amended Notice of Rule 30(b)(6)
`Deposition of Opposer Dynatronics Corporation, attached as “Exhibit C”.
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`2
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`long span of time encompassed in Applicant’s written discovery requests, and the scope of
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`potentially responsive information and documents thereto, further complicated Opposers’ efforts
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`to fully respond to the discovery requests absent additional time. (See, e.g., id.)
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`4.
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`Accordingly, Opposers’ counsel reached out to counsel for Applicant to request an
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`extension of time to respond to the discovery requests on November 6, 2023, before the deadline
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`for Opposers’ responses had lapsed. (See, e.g., id.) Unfortunately, Applicant’s counsel would not
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`agree, making it necessary for Opposers to submit a motion to the Board seeking an extension of
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`time, which was filed on November 7, 2023. (See, e.g., id.)
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`5.
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`Concurrently with Opposers’ informal request for an extension of time, and despite
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`neither party having yet served any written discovery responses at that time,4 without consulting
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`with Opposers in advance as to the date, time, or location, Applicant served Opposers with a single
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`purported notice of Rule 30(b)(6) deposition on both Bird & Cronin, LLC and Dynatronics
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`Corporation (the “Initial Notice”), without distinguishing between the two entities, attempting to
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`simultaneously set the depositions for November 29, 2023 at 9:00 am in Minnesota.5 Applicant
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`did not communicate with Opposers prior to serving the Initial Notice, for example to coordinate
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`times or even to ensure the availability of Opposers’ counsel or the individuals who may be
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`designated to testify on behalf of Opposers, let alone the location of any such individuals.
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`4 On November 8, 2023, the day after the filing of Opposers’ motion for extension of time, out of
`an abundance of caution and as a show of good faith and diligence in responding as far as Opposers
`were able, Opposers did serve responses and objections to Applicant’s first set of requests for
`admission in conformance with the original November 8, 2023 deadline. In addition, on November
`10, 2023, Opposers served a first set of written discovery requests on Applicant, comprising
`seventy (70) requests for production of documents, seventy (70) interrogatories, and sixty-four
`(64) requests for admission. Applicant’s responses thereto are not presently due until Monday,
`December 11, 2023.
`5 One or more of Opposers’ potential Rule 30(b)(6) designees, pending the resolution of additional
`objections, may reside and/or are regularly employed in Utah, where Opposer’s are organized.
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`6.
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`With service of the Initial Notice on November 6, 2023, Opposers were given
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`substantially less than thirty (30) days’ notice, with the added complication of the intervening
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`Thanksgiving holiday, to (a) object to Applicant’s Initial Notice on numerous grounds, (b) resolve
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`any such objections, and (c) prepare, if appropriate, one or more designees for both Bird & Cronin,
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`LLC and Dynatronics Corporation on the seventeen (17) topics set forth in Applicant’s Initial
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`Notice, as well as to arrange any necessary travel for Opposers’ designee(s) and counsel, if
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`appropriate.
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`7.
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`Counsel for Opposers and counsel for Applicant met and conferred via a telephone
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`call on November 16, 2023 regarding Opposers’ responses to Applicant’s first set of requests for
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`admission. While not formally part of the meet and confer, Applicant’s Initial Notice was briefly
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`discussed during the course of the parties’ telephone conference. Counsel for Opposers expressed
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`various concerns (including concerns regarding the fact that Applicant had noticed two separate
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`and distinct legal entities for the same deposition, on the same day, and at the same time, which is
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`improper and, even if feasible, could cause confusion regarding designees and confusion in the
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`record with respect to which information should be attributed to which entity) and foreshadowing
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`other forthcoming objections.
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`8.
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`By way of preliminary response to some of Opposer’s objections to the Initial
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`Notice, Applicant served the Amended Notices on November 20, 2023. (Exs. A & B.)
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`Nevertheless, without consulting with Opposers in advance as to the date, time, or location,
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`Applicant kept the original deposition date of November 29, 2023 and added the deposition date
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`of November 30, 2023 so that the depositions were to take place nine (9) days after the Amended
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`Notices were served, which period of time included the intervening Thanksgiving holiday.
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`9.
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`Prior to Applicant serving the Amended Notices on November 20, 2023, on
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`November 17, 2023, Opposers had previously filed their Notice of Co-Pending Civil Action,
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`Lodging of Complaint, and Motion to Suspend (18 TTABVUE, the “Motion to Suspend”) seeking
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`suspension of the above-captioned Opposition proceeding premised on a co-pending civil litigation
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`filed by Opposers in the United States District Court for the District of Utah, Central Division, that
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`same day, giving notice to the Board that Opposers had initiated the co-pending federal civil action
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`against Applicant (and others) and requesting that this Opposition proceeding be suspended
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`pending the resolution of the co-pending federal civil action. (See 18 TTABVUE.)
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`10. Where Applicant’s Amended Notices fail to account for the pending Motion to
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`Suspend and are otherwise objectionable on numerous grounds, on November 21, 2023, Opposers
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`(a) served Applicant with Opposers’ combined written objections to Applicant’s Amended Notices
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`(attached as Exhibit C) and (b) requested that Applicant voluntarily withdraw the Amended
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`Notices pending resolution of, inter alia, the Motion to Suspend as well as a subsequent meet and
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`confer, if necessary, to resolve Opposers’ other objections to the Amended Notices. As of the time
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`of this filing, Applicant has ignored Opposers’ request that the Amended Notices be voluntarily
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`withdrawn, thus necessitating the instant motion out of an abundance of caution. For the reasons
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`set forth in the Motion to Suspend, proceeding with depositions, other fact discovery, and expert
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`discovery in the limited context of the above-captioned Opposition proceeding while a broader co-
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`pending civil action is pending in federal court, which will either be dispositive of, or at least have
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`a bearing on, this Opposition proceeding, would be inefficient, wasteful and duplicative.
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`ARGUMENT
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`In pertinent part, Rule 26(c) provides that, when good cause exists, an order may be issued
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`“to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
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`expense.” FED. R. CIV. P. 26(c); see also TBMP §§ 410, 521 & 526. At this juncture, Opposers
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`should be protected from the annoyance, oppression, and undue burden or expense of the Rule
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`30(b)(6) depositions as noticed by Applicant, and/or the Amended Notices should be quashed, at
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`least temporarily, for the following reasons: (A) in view of Opposers’ pending Motion to Suspend,
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`and for the reasons set forth therein, this Opposition proceeding should be suspended pending
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`resolution of the broader co-pending civil action filed in federal court, which co-pending civil
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`action is likely to be dispositive of and/or have a bearing on this Opposition proceeding such that
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`moving forward with fact and expert discovery here during the interim could be wasteful and
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`inefficient (see, e.g., TBMP § 521); (B) Applicant’s Amended Notices are objectionable and such
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`objections should be addressed via a meet and confer ahead of proceeding with the depositions;
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`(C) among other objections, the Amended Notices seek information that is irrelevant,
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`compounding the undue burden upon Opposers in preparing therefore, particularly on short notice;
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`and (D) the Amended Notices have imposed an unreasonable timeframe in which to properly
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`prepare designees for the Opposer entities, particularly for designees, if any, located in Utah rather
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`than Minnesota (see, e.g., TBMP § 521).
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`A. Applicant’s Amended Notices Seek Unnecessary Expenditures of Time and Resources
`Where the Present Opposition Should Be Suspended Pending the Outcome of a Co-
`pending Civil Action
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`As noted above, On November 17, 2023, Opposers filed their Motion to Suspend the
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`present Opposition proceeding pending resolution of the federal action that Opposers have initiated
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`against Applicant (and others) in the District of Utah. (See 18 TTABVUE.) As set forth in more
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`detail in the Motion to Suspend, where the co-pending federal civil action includes claims
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`involving the same PRODY mark at issue in this Opposition proceeding and the determination of
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`the co-pending federal civil action will have bearing on, or be dispositive of, the issues before the
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`Board here, the policy of the Board is to suspend the Opposition pending the outcome of the civil
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`action. See Arcadia Grp. Brands Ltd. v. Studio Moderna Sa, 99 U.S.P.Q.2d 1134 (TTAB 2011).
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`Indeed, the Board follows this policy “[u]nless there are unusual circumstances.” TBMP §
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`510.02(a). Hence, rather than proceeding with discovery here, the instant Opposition proceeding
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`should be suspended.
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`Indeed, Applicant’s Amended Notices – served after Opposers had moved to suspend –
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`seek an unnecessary expenditure of time and resources where the present Opposition proceeding
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`is subject to the previously filed Motion to Suspend and should be suspended in due course. At
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`minimum, fact discovery, including the depositions at issue in the Amended Notices, should be
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`postponed or deferred until the Board makes a final determination as to whether this Opposition
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`proceeding will be suspended pending resolution of the co-pending federal civil action initiated by
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`Opposers. Otherwise, the time and resources of the parties, their counsel, and the Board may be
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`wasted, or result in a substantial duplication of effort, where the co-pending federal civil action
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`encompasses a broader scope of issues and disputes than those at issue in this Opposition
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`proceeding, but which will necessarily need to be resolved alongside the issues in dispute before
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`the Board. Proceeding with the depositions as noticed would be inefficient and unduly
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`burdensome given the co-pendency of a federal civil action and the potential for duplication of
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`effort.
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`B. The Amended Notices are Overly Broad, Vague, Ambiguous, and Unduly
`Burdensome
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`Rule 30(b)(6) specifies that the noticing party “must describe with reasonable particularity
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`the matters for examination.” Courts have noted that, “for Rule 30(b)(6) to function effectively,
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`the requesting party must take care to designate, with painstaking specificity, the particular subject
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`areas that are intended to be questioned, and that are relevant to the issues in dispute.” Lipari v.
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`U.S. Bancorp, N.A, No. CIVA 07-2146-CM-DJW, 2008 WL 4642618, at *5 (D. Kan. Oct. 16,
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`2008) (unpublished) (citations omitted, emphasis added). Indeed,
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`Only when the requesting party has “reasonably particularized” the subjects about
`which it wishes to inquire can the responding party produce a deponent who has
`been suitably prepared to respond to questioning within the scope of inquiry. An
`overbroad Rule 30(b)(6) notice subjects the noticed party to an impossible task.
`When the notice is overbroad, the responding party is unable to identify the outer
`limits of the areas of inquiry noticed, and designating a representative in
`compliance with the deposition notice becomes impossible.
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`Id. (internal citations omitted).
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`Here, Applicant has presented Opposers with just such an impossible task. For example,
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`and not by way of limitation, Applicant’s first noticed topic is all-encompassing, demanding
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`without specificity “[k]nowledge of the allegations set forth in Opposers’ Amended Notice of
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`Opposition, as referenced in Opposers’ Initial Disclosures,” and going on to include subsections
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`demanding that designees be particularly prepared regarding “the factual basis” of certain
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`paragraphs and sections of Opposers’ Amended Notice of Opposition. Thus, Topic No. 1, on its
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`face, requires a designated witness or witnesses to be prepared to testify regarding every single
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`allegation in the Amended Notice of Opposition, which does not constitute “reasonable
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`particularity,” and is overly broad and imposes an undue burden on Opposers with respect to their
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`efforts to prepare designated witnesses.6 (See also Ex. C at p.8 (setting forth additional objections
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`to Applicant’s Topic No. 1)).
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`Furthermore, Topic No. 1 potentially seeks information spanning some seventeen (17)
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`years, which time period included changes in ownership, leadership, employees, and company
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`structure for Opposers. Requiring a designee, or multiple designees, to be prepared to a high level
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`6 See Sheehy v. Ridge Tool Co., No. 3:05 CV 1614(CFD)(TPS), 2007 WL 1548976 (D. Conn. May
`24, 2007) (unpublished) (finding that a Rule 30(b)(6) deposition notice demanding a designated
`representative “most knowledgeable as to the subject Complaint” did not describe the matters to
`be addressed in the deposition with “reasonable particularity” as required).
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`of detail regarding all information falling within this expansive timeframe is unreasonable and
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`burdensome, particularly considering the truncated amount of time in which Applicant has
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`unilaterally attempted to notice Opposers’ depositions. (See also id.)
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`Applicant’s additional topics, numbering seventeen (17) in total, compound the unduly
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`burdensome and overbroad nature of Applicant’s Amended Notices. Indeed, Applicant’s topics
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`habitually seek expansive and broad categories of information, rather than addressing
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`particularized inquiries. For example, and not by way of limitation, Applicant’s Topic Nos. 8 –
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`10 purport to require designees to know details regarding each and every product or service that
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`Opposers have offered for sale, sold, or provided under or in connection with Opposers’ PRODY
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`mark, specific dates of first use for each product or service, and the precise pricing of the same
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`over a period of seventeen (17) years, which time period included changes in ownership,
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`leadership, employees, and company structure for Opposers. (See id. at pp. 15-17.) Without
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`question, requiring Opposers to prepare a witness to discuss each product or service on a product-
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`by-product or a service-by-service basis at that level of detail over a period of seventeen (17) years
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`is not reasonable, or even feasible. (See also id., passim (setting forth additional objections to
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`Applicant’s various topics)).
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`Moreover, where a substantial proportion of the information encompassed in Applicant’s
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`purported topics for examination is/are also encompassed in Applicant’s comprehensive written
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`discovery to Opposers, Applicant’s approach of seeking to depose Opposers in advance of
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`receiving responses to the written discovery (and during the pendency of a Motion to Suspend) are
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`inefficient, overly burdensome, oppressive, and disproportionate.7 Accordingly, Opposers request
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`7 See In re Independent Service Organizations Antitrust Litigation, 168 F.R.D. 651, 654 (D. Kan.
`1996) (finding a Rule 30(b)(6) deposition notice demanding a designated representative “to testify
`about facts supporting numerous paragraphs of Xerox’s denials and affirmative defenses in its
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`that the Amended Notices either be quashed (at least temporarily) or that the Board issue a
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`protective order preventing the depositions of Opposers as presently noticed pending resolution
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`of, inter alia, Opposers’ Motion to Suspend as well as a subsequent meet and confer, if necessary,
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`to resolve Opposers’ other objections to the Amended Notices.
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`C. The Amended Notices Seek Information that is Irrelevant and Disproportionate
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`Under Rule 26(b)(1), a party may discover information that is “relevant to any party’s claim
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`or defense and proportional to the needs of the case.” FED. R. CIV. P. 26(b)(1). Indeed, “[t]he
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`discoverability of information is governed by whether it would be relevant, not by whether the
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`information discovered would be admissible at trial.” Ward v. Nesibo, No. 4:22-CV-00054-DN-
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`PK, 2023 WL 3391145, at *1 (D. Utah May 11, 2023) (unpublished).
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`Applicant’s Amended Notices each include at least six (6) topics that Opposers have
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`objected to as irrelevant to the allegations, claims, and/or defenses at issue in this proceeding,
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`namely Topic Nos. 3, 4, 5, 15, 16, and 17 (See Ex. C, passim.) A few particularly egregious
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`examples are worth noting. Topic. No. 17, for example, demands that the designee be prepared to
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`speak as to “[t]he facts and circumstances that show that the Asserted Mark is famous.” (See id.
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`at p.22.) But Opposers have made no claim that their PRODY mark is famous. (See 10
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`TTABVUE.) Similarly, Topic. No. 5 purports to require the designee to be prepared to testify as
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`to dilution when Opposers’ Amended Notice of Opposition never sets forth a claim for dilution.
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`(Compare Ex. C at pp. 12-13, with 10 TTABVUE, passim.)
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`Therefore, because Applicant has not taken care even to cabin her topics to those that are
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`relevant to the proceeding at hand, Opposers should be protected from the depositions as
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`contemplated by the Amended Notices. Opposers should not be required to present designees to
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`Answer” to be “overbroad, burdensome, and a highly inefficient method through which to obtain
`otherwise discoverable information”).
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`face questions that have not been duly considered and honed to the required degree of particularity
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`suitable to the instant Opposition proceeding and, in some cases, are entirely irrelevant. A Rule
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`30(b)(6) deposition is not an opportunity to discuss, or worse, to quiz designees regarding, any and
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`all academic issues of trademark law, whether or not relevant to the proceeding presently before
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`the Board. Accordingly, the present motion should be granted and the Amended Notices should
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`be quashed, at least pending resolution of Opposers’ Motion to Suspend as well as a subsequent
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`meet and confer, if necessary, to resolve Opposers’ other objections to the Amended Notices.
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`D. The Amended Notices Impose an Unreasonable Timeframe to Adequately Prepare
`Opposers’ Designee(s)
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`Pursuant to 37 C.F.R. § 2.123(c) and TBMP § 703.01(e), a party must give reasonable
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`notice of any deposition it intends to take. Nevertheless, what is “reasonable” is not defined.
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`However, while “[t]he rules do not require any particular number of days, … reasonableness may
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`depend on the particular circumstances.” Hart v. United States, 772 F.2d 285, 286 (6th Cir. 1985);
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`see also TBMP § 521.
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`Under the circumstances here, Applicant did not give reasonable notice to Opposers with
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`respect to the Rule 30(b)(6) depositions at issue in the Amended Notices. To begin with, a
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`deposition notice under Rule 30(b)(6) imposes a greater burden with respect to the effort required
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`for compliance than other deposition notices directed toward individual witnesses. Indeed, under
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`Rule 30(b)(6), substantial work is imposed on the organization receiving the notice before any
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`testimony is even given where the Rule requires the deponent entity to produce designees having
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`sufficient “information known or reasonably available to the organization” to allow the designee
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`to testify concerning the same. FED. R. CIV. P. 30(b)(6). This requirement is even more
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`demanding where, as here, numerous and broad topics have been presented by the Amended
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`Notices spanning events and circumstances occurring over a seventeen (17) year period of time in
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`which significant changes have occurred within Opposers’ organization.
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`Moreover, Rule 30(b)(6) is interpreted to require the deponent entity to “make a
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`conscientious good-faith endeavor to designate the persons having knowledge … and prepare
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`those persons in order that they can answer fully.” See Bank of New York v. Meridien BIAO Bank
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`Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997). These efforts are unavoidably burdensome,
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`as well as expensive in terms of both time and money. And preparation cannot be shortchanged
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`or rushed without substantial risk to the deponent entity, because the testimony of a corporation’s
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`designee at a 30(b)(6) deposition is “a sworn corporate admission that is binding on the
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`corporation.” In re Vitamins Antitrust Litig., 216 F.R.D. 168, 174 (D.D.C. 2003).
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`In view of the foregoing, reasonable notice must provide enough time for the designated
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`persons to be prepared to the level required on each of the topics noticed. Here, Applicant has not
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`worked with Opposers to schedule the Rule 30(b)(6) depositions, has not taken into consideration
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`the time required to prepare designees for all the topics Applicant has included in the Amended
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`Notices, particularly in view of other matters requiring Opposers’ time and attention during the
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`interim, and ignores Opposers’ pending Motion to Suspend as well as other practical realities,
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`including the pendency of written discovery and related scheduling disputes. To let the depositions
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`go forward as set forth in the Amended Notices would thus allow Applicant, as the noticing party,
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`to potentially gain an improper tactical advantage, or otherwise be wasteful and inefficient, in
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`deposing Opposers without allowing Opposers sufficient time to prepare for the same. This result
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`would not be fair or just, particularly in view of the pending Motion to Suspend, such that the
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`present motion should be granted.
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`CONCLUSION
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`For all of the forgoing reasons, Opposers respectfully request that the Board grant the
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`present motion for a protective order and/or to quash the Amended Notices, precluding (or at least
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`temporarily deferring) the depositions contemplated by Applicant’s Amended Notices from taking
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`place as presently set forth therein pending resolution of, inter alia, Opposers’ Motion to Suspend
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`as well as a subsequent meet and confer, if necessary, to resolve Opposers’ other objections to the
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`Amended Notices.
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`DATED: Salt Lake City, Utah
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` November 27, 2023
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`Respectfully submitted,
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`KIRTON MCCONKIE
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`By: /s Joshua S. Rupp/
`David B. Tingey
`Joshua S. Rupp
`Annemarie Garrett
`Key Bank Tower
`36 S. State Street, Suite 1900
`Salt Lake City, Utah 84111
`801-328-3600
`dtingey@kmclaw.com
`jrupp@kmclaw.com
`agarrett@kmclaw.com
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`Attorneys for Opposers
`Bird & Cronin, LLC and
`Dynatronics Corporation
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this the 27th day of November, 2023, I caused a true and complete
`copy of the foregoing OPPOSERS’ COMBINED MOTION FOR PROTECTIVE ORDER
`AND/OR MOTION TO QUASH NOTICES OF DEPOSITION to be (1) filed utilizing the
`ESTTA filing system and (2) served on the attorneys of record for Applicant, as designated below,
`by forwarding said copy via email addressed as follows:
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`Jeffer Ali
`John C. Wittmer
`PATTERSON THUENTE
`80 S 8th Street, 4800 IDS Center
`Minneapolis, Minnesota 55402
`ali@ptslaw.com
`wittmer@ptslaw.com
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`/s Joshua S. Rupp/
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`Opposition No.: 91284071
`BIRD & CRONIN, LLC et al., v. MARY R. PRODY
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`Exhibit A
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`Exhibit A to Opposers’ Combined Motion for Protective Order
`And/or Motion to Quash Notices of Deposition
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`4814-0114-9221
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Bird & Cronin, LLC; Dynatronics
`Corporation,
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`Opposition No. 91284071
`Serial No. 90884850
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`Opposer,
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`v.
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`Mary R. Prody,
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`Applicant.
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`APPLICANT’S AMEDNED NOTICE
`OF RULE 30(B)(6) DEPOSITION OF
`OPPOSER BIRD & CRONIN, LLC
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`Pursuant to Rules 26 and 30(b)(6) the Federal Rules of Civil Procedure and 37 C.F.R. §
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`2.120, Applicant Mary R. Prody (“Applicant”), by and though her attorneys, will take the
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`deposition of Opposer Bird & Cronin, LLC (“Opposer”) through one or more of their officers,
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`directors, managing agents, or other persons designated and consenting to testify on the topics
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`listed in Attachment A.
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`The deposition will commence on November 29, 2023, at the offices of Patterson
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`Thuente, at 80 South Eighth Street, 4800 IDS Center, Minneapolis, MN 55402, at 9:00 a.m. CDT
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`before a court reporter or other officer duly authorized to administer oaths. The deposition will
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`continue day to day until completed, will be conducted in accordance with the Federal Rules of
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`Civil Procedure, and will be recorded by stenographic and videographic means, including real-
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`time transcription.
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`At least seven days before the deposition, Opposer shall produce a list of proposed
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`witnesses designated to testify for each topic listed in Attachment A. Opposer shall also
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`affirmatively describe the scope of testimony that each such witness shall be prepared to provide
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`for each of the witness’s designated topics.
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`1
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`Applicant hereby reserves the right to notice and depose Opposer pursuant to Rule
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`30(b)(6) of the Federal Rules of Civil Procedure at a later date on the subject matters, as agreed
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`upon by the parties.
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`Dated, November 20, 2023
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`By: /s/ Jeffer Ali
`Jeffer Ali (#0247947)
`John C. Wittmer (#0398587)
`PATTERSON THUEUNTE
`80 S 8th Street, 4800 IDS Center
`Minneapolis, MN 55402
`(612) 803-0068
`ali@ptslaw.com
`wittmer@ptslaw.com
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`Attorneys for Applicant Mary R. Prody
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`2
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`ATTACHMENT A
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`DEFINITIONS
`1. “Applicant” means Mary R. Prody, the Applicant in the above-captioned proceeding.
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`2. “Opposer”, “Opposers”, “you”, “your” means Opposers Bird & Cronin, LLC and
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`Dynatronics Corporation, its subsidiaries, divisions, predecessor, and successor
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`companies, affiliates, parents, any partnership or joint venture to which it may be a party,
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`and/or each of its employees, agents, officers, directors, representatives, consultants,
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`accountants, and attorneys, including any person who served in any such capacity at any
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`time during the relevant time period specified herein.
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`3. “Applicant’s Mark” means the mark that is subject of U.S. Trademark Application Serial
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`NO. 90884850 and this proceeding.
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`4. “The Asserted Mark” means the mark identified in the Amended Notice of Opposition in
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`this proceeding.
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`5. "Concerning" means consisting of, referring to, relating to, reflecting, or being in any
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`way logically or factually connected with the matter discussed.
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`6. "Communication" means the transmittal of information (in the form of facts, ideas,
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`inquiries, or otherwise).
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`7. "Date" means the exact day, month, and year if ascertainable, or, if not, the best available
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`approximation (including relationship to other events).
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`8. "Describe" means set forth fully and unambiguously every fact relevant to the subject of
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`the Topic, of which you (including your agents and representatives) have knowledge or
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`information.
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`9. “Document” is synonymous in meaning and equal in scope to its usage in FRCP
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`34(a)(1)(A). The term “document” refers to any document now or at any time in
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`3
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`Opposer’s possession, custody, or control. A person is deemed in control of a document
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`if the person has any ownership, possession, or custody of the document, or the right to
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`secure the document or a copy thereof from any person or public or private entity having
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`physical possession thereof.
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`10. “Identify” with respect to a person who is an individual means to state that person’s fu