On December 6, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 54 and Order No. 55 (both dated November 21, 2012) in Certain Incremental Dental Positioning Adjustment Appliances and Methods of Producing Same (Inv. No. 337-TA-562).
According to Order No. 54, Respondent ClearCorrect Pakistan (Private) Ltd. (“CCPL”) sought to compel Complainant Align Technology, Inc. (“Align”) to produce documents responsive to CCPL’s Document Request No. 9 and provide a complete response to CCPL’s Interrogatory No. 13, both of which request information regarding communications between Align and persons currently or formerly employed by CCPL. CCPL stated in the motion that it received a declaration from a former employee, Amir Javed, who asserted that he had an extended meeting with Align’s counsel and an Align representative during which he was told that persons working for Align, including its counsel, are in frequent contact with one or more of CCPL’s current employees and are obtaining information about CCPL’s daily activities, and that he was offered money in return for confidential CCPL information. CCPL stated that Align’s discovery responses do not disclose this information, and that Align is withholding such information on the basis of privilege and work product objections. In opposition, Align stated that it disclosed any communications between it, its counsel, or individuals acting on its behalf, and any current of former CCPL employees, and that its counsel and the Align representative provided declarations asserting that (1) they did not tell Mr. Javed they were communicating with a current CCPL employee, and (2) they are not aware of any other communications with former CCPL employees. Align also denied that Mr. Javed was offered money in return for confidential CCPL information or was told about various CCPL confidential processes during his meeting with Align’s counsel and representative. With respect to the discovery requests at issue, Align stated that it provided “documents sufficient to show all of the documents in its possession, custody or control” and responsive non-privileged information, and that its continued assertion of privilege and work product objections stem from the broad scope of the requests which encompass communications between Align and its counsel. The Commission Investigative Staff supported the motion in part, arguing that Align should be ordered to confirm that (1) it is not withholding the identity of any CCPL employees with whom it has been in contact; (2) it has produced all responsive non-privileged documents concerning communications with current and former CCPL employees; and (3) it has disclosed the identities of all current and former CCPL employees with whom it has communicated, including the dates of and participants in such communications.
Based on the parties’ submissions, ALJ Rogers ordered Align to produce all documents in its possession, custody or control responsive to Document Request No. 9 and file a declaration that it does not have possession, custody or control of any additional responsive documents. The ALJ declined to order Align to supplement its interrogatory response, however, because he found insufficient evidence to doubt its completeness despite the fact that Mr. Javed’s declaration is contradicted by declarations from Align (including one from an attorney currently appearing before the ALJ). Finally, the ALJ denied CCPL’s request that Align’s privilege-based objections be overruled, finding the propriety of the privilege claim irrelevant given Align’s representation that it is not withholding any information on that basis, and further observing that since the parties agreed to waive the requirement of a privilege log pursuant to Ground Rule 4.10.2, any motions involving privileged documents will not be considered.
According to Order No. 55, Align sought to compel CCPL, ClearCorrect Operating, LLC, Mudassar Rathore, Waqas Wahab, Asim Waheed, and Nadeem Arif (collectively, “Respondents”) to provide complete responses to discovery requests addressing Respondents’ interactions with OrthoClear’s former Director of Research and Development, Frank Liu, and Respondents’ association with a clear aligner company named ClearPath Orthodontics, whose founder and CEO is Respondent Dr. Wahab. Align asserted that it identified the alleged discovery deficiencies in letters to Respondents, who have yet to reply to Align’s letters or correct the deficiencies. ALJ Rogers denied the motion for failing to comply with Ground Rule 3.5 which requires the parties to make “intensive” good faith efforts to resolve discovery disputes without the ALJ’s intervention. Specifically, ALJ Rogers found that Align’s letters — one nine pages long and one ten pages long, addressing nearly 30 separate categories of deficiencies — indicating that a motion to compel will be filed two days later unless the Respondents supplement their discovery responses does not amount to intensive good faith efforts to resolve the disputes.