There are several ways in which evidence can be gathered in intellectual property (IP) suits, including through discoveries and cross examinations.
Discovery takes place pre-trial, where parties can exchange information regarding the evidence and witnesses to be presented to the court. Various types of discovery can be used in a suit, such as interrogatories, depositions, subpoenas, requests for production of documents, and inspection. Cross examination is the process of questioning witnesses by the opposite party.
This note discusses two specific types of evidence-gathering methods employed in IP suits, i.e., interrogatories and cross-examinations, differences between which the Delhi High Court highlighted in an IP decision recently.
Interrogatories are a type of discovery, and are discussed in Section 30, Order XI Rule 1 to 11, 21 and 22 of the Code of Civil Procedure, 1908 (CPC). Interrogatories are a set of questions in writing that a party in a suit initiates on the other party with the leave of the court. Interrogatories are answered by an affidavit within ten days, or within the time the court prescribes. Applications seeking interrogatories are usually filed if a party believes that there exist gaps in the facts after the plaint and the written statement are submitted and the court sends summons for the first hearing.
With the enactment of the Commercial Courts Act, 2015 (CCA), the scope of interrogatories has widened to include disclosure and inspection of documents. The new law has also allowed for the disclosure or inspection of electronic records, paving the way for filing electronic evidence, and acknowledging procedural efficiency in such cases. Now, parties must file lists of all documents along with photocopies while filing plaints or written statements. Parties must also declare on oath that they do not possess any further documents besides what is placed on record, and cannot refer to further documents without the leave of the court.
Evidence in IP suits is also gathered through cross examinations, which are discussed under Section 138 of the Indian Evidence Act, 1972 as well as Order XVIII Rule 4(1) of the CPC. IP infringement suits usually take several years to reach a final conclusion, owing to which the party that is awarded intermediary relief by way of, say, an interim injunction, is reluctant to pursue litigation further, especially if it does not have adequate resources. Therefore, such suits seldom reach the cross-examination stage. But when they do, cross-examinations can determine the fate of the rest of the suit. Expert witnesses in cross examinations play an important role since they give technical explanations, as opposed to layperson witnesses in matters involving other branches of law.
Interrogatories vs. Cross Examinations
Sometimes, the scope of questions that can be asked through interrogatories and cross examinations can be misunderstood by parties. In truth, these are two distinct forms of gathering evidence, and are in fact, quite different. The most obvious difference between interrogatories and cross examinations is that the former takes place in the initial stages of a suit, whereas the latter commences only after trial begins. The kinds of questions that may be raised at both of these stages there is also different.
In Ram Pravesh Rai v. Sri Rajesh Kumar Singh1, the Patna High Court restated the principle that interrogatories are to be allowed where it expedites a trial, but not where a party is “fishing” or has a predetermined mindset.
The Delhi High Court made a useful clarification in a recent IP case of Centrient Pharmaceuticals v. Dalas Biotech Ltd.2 This case reiterated the general rule that interrogatories should be allowed when answers to the questions serve to maintain the case of the party that initiated them, or destroy the case of the opposite party. In this case, the Plaintiff used interrogatories to ask the Defendant for copies of its master file, common technical documents, master formula records, etc. The Defendant declined stating that these copies were not relevant to the suit, and that the information sought was confidential and should not be disclosed, especially since the Plaintiff was a business rival. The court said that the Plaintiff used interrogatories as a “roving and fishing inquiry” and therefore disallowed the same. It was held that the Plaintiff was trying to extract, through interrogatories, information that it could have obtained during its cross examination.
Here, the Delhi High Court also relied on the Supreme Court decision in Raj Narain v. Smt. Indira Nehru Gandhi and Anr.3 The Supreme Court has established that interrogatories that do not relate to matters in question in the suit are irrelevant, but may be admissible in cross examinations. Questions served during interrogatories must have a reasonably close connection with the matter in question. The Supreme Court also said that it is a settled position in law that interrogatories cannot be a substitute for cross examination, since the scope for interrogatories are much narrower.
Courts appear to consider interrogatories with some care. In Quintessential Designs India v. Puma Sports India,4 the Madras High Court held that a barrage of interrogatory applications filed at an advanced stage in the proceedings are tactics to merely delay trial. Therefore, the court dismissed the interrogatory application, noting that granting such applications at an advanced stage would defeat the purpose of interrogatories, which is to expedite a trial.
There is a clear difference between interrogatories and cross examinations, since the former is granted by the leave of the court and the latter is basic (and default) procedure. Both have important but distinct roles to play in a trial, especially in highly technical matters like IP suits. They can facilitate the advancement of the trial in different ways, like the disclosure of important documents in the case of interrogatories, or expert witness statements in cross examinations. An essential element of a fair trial is that both parties are given equal opportunity to access evidence related to the case.
However, these opportunities can also be misused by parties to delay a trial or to use interrogatories as a substitute for cross examinations in order to extract confidential information. Courts are clearly vigilant about such misuse and have consistently reiterated that interrogatories cannot replace cross examinations. Interrogatories are to be raised at a pre-trial stage and must have a close connection with the matter in question, whereas cross examinations have a wider scope of questions that can be asked.
1 Ram Pravesh Rai Estate (P) Ltd. v. Sri Rajesh Kumar Singh, 2016 SCC OnLine Pat 17.
2 Centrient Pharmaceuticals v. Dalas Biotech Ltd, CS(COMM) 218/2019.
3 Raj Narain v. Smt. Indira Nehru Gandhi and Anr., 1972 SCC (3) 580.
4 Quintessential Designs India Pvt. Ltd. and Ors. Vs. Puma Sports India (Pvt.) Ltd. and Ors., 2019 (5) CTC320.