Respondent's Motion to Compel Based on Declaration from a Former Employee That Complainant's Counsel Were in Contact with Current Employees of Respondent Was Denied Where Complainant's Counsel Represented to ALJ That No Such Contact Had Occurred

December 17, 2012

Respondent ClearCorrect Pakistan (Private) Ltd. ("CCPL") moved to compel complainant Align Technology, Inc. ("Align") to produce documents and supplement responses to interrogatories. As explained by the Administrative Law Judge, "CCPL asserts that Align has provided incomplete responses to Document Request No. 9 and Interrogatory No. 13. CCPL says that Document Request No. 9 requires:

All documents reflecting communications occurring from January 1, 2010 and the present between Align (including its attorneys or anyone else acting on Align's behalf) and any of the following: . . . (3) any person currently or formerly employed by ClearCorrect Pakistan (Private) Ltd.

CCPL says that Interrogatory No. 13 requires:

For every communication from January 1, 2010 between Align (including its attorneys or anyone else acting on Align's behalf) and any person employed by ClearCorrect Pakistan (Private), Ltd. state: (1) every person participating in the communication, (2) the subject matter of the communication, (3) the date the communication occurred, and (4) whether any document or other recording medium captured the communication."

CCPL based its motion on a declaration that it received from a declaration from a former employee. "According to CCPL, Mr. Javed's declaration states that he had an extended meeting with Align's counsel, Mr. Thomas Counts, and Align's representative, Mr. Rizwan Baig. CCPL continues that Mr. Javed says he was told by Mr. Counts and Mr. Baig 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. CCPL also says that Mr. Javed says he was offered money in return for confidential CCPL information and was told about various confidential processes of CCPL by Mr. Counts and Mr. Baig. CCPL asserts that Align's responses to Document Request No. 9 and Interrogatory No. 13 do not disclose this information, or identify the CCPL employees with whom Align has been in contact. CCPL continues that Align's responses have asserted privilege and work product objections to the discovery requests and it believes that Align is withholding relevant information on this basis."

The Administrative Law Judge ordered Align to produce additional responsive documents. "Align does not explicitly state that it has, in fact, produced all responsive documents in its possession, custody, or control. Rather, it only addresses "documents sufficient to show all of the documents in its possession, custody, or control." (Align Resp. at 6 (emphasis added).) As a result, by November 28, 2012, Align shall produce all documents in its possession, custody, or control responsive to Document Request No. 9. Align also must file a declaration under penalty of perjury that it does not have possession, custody, or control of any additional responsive documents."

On the other hand, the Administrative Law Judge denied the request to supplement the interrogatory response. "At this time, there is no evidence to cause me to doubt the truthfulness of Align's response and representations. Although Mr. Javed provided a declaration regarding the discussions he had with Mr. Counts and Mr. Baig that alleged he was told by Mr. Counts and Mr. Baig that they were in contact with a current employee of CCPL (Javed Decl. at 2-3), Mr. Javed's declaration is countered by declarations from Mr. Counts, Mr. Baig, and Mr. Baty. The declarations of Mr. Counts, Mr. Baig, and Mr. Baty deny any such representation was made to Mr. Javed, and the declarations of Mr. Counts and Mr. Baig additionally deny that any communications took place with a current employee of CCPL. (Counts Decl. at lif 2, 12; Baig Decl. at TT 2, 12; Baty Decl. at ΒΆ 6.) In view of these declarations, including one from an attorney currently appearing before me, there is insufficient evidence to cause me to doubt that Align's response to Interrogatory No. 13 is complete."

Accordingly, the Administrative Law Judge granted the motion to compel additional documents but denied the motion to compel supplemental responses to interrogatories.


In the Matter of Certain Incremental Dental Positioning Adjustment Appliances and Methods of Producing Same, Inv. No. 337-TA-562 (Administrative Law Judge Robert K. Rogers, Jr. Dec. 6, 2012)

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