On November 21, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 56 denying Complainant Align Technology, Inc’s (“Align”) motion to compel Respondent ClearCorrect Operating, LLC (“ClearCorrect”) to submit to a third-party forensic examination in Certain Incremental Dental Positioning Adjustment Appliances and Methods of Producing Same (Inv. No. 337-TA-562).

According to the Order, Align moved to compel a “forensic examination of hard drives, backup media devices, shared drives, email servers, electronic media, electronic information stored on the cloud, personal email accounts, and electronic archives of ClearCorrect and its employees.”  Align alleged that the requested discovery was required in order to resolve various deficiencies in ClearCorrect’s document production which, despite the parties best efforts, could not be settled without the requested forensic examination.

ALJ Rogers determined to deny Align’s motion for its failure to comply with Ground Rules 3.5 and 4.1.1.  Ground Rules 3.5 and 4.1.1 require, in part, that the parties make intensive good faith efforts to resolve all discovery disputes without intervention from the ALJ and that no motion to compel discovery should be filed unless the matter was first brought to the Discovery Committee, respectively.  Further, Ground Rule 3.5 requires all motions to compel to describe all efforts made in attempting to resolve the dispute between the parties. 

Specifically, the ALJ found that Align failed to bring its proposal for the requested forensic examination to the Discovery Committee and failed to set forth in its motion the precise efforts undertaken to resolve the dispute.  In reaching this conclusion, ALJ Rogers noted that there is a substantive distinction between a motion to compel documents and a motion to compel forensic examination and, as a result, Align’s general statements regarding previous and unsatisfied document requests brought before the Discovery Committee were insufficient to satisfy Align’s current obligations under Ground Rules 3.5 and 4.1.1 with respect to its request for forensic examination.