ALJ Rogers Denies Motion To Compel In Certain Digital Models, Digital Data, And Treatment Plans For Use In Making Incremental Dental Positioning Adjustment Appliances (337-TA-833)
On June 28, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 7 in Certain Digital Models, Digital Data, and Treatment Plans for use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made Therefrom, and Methods of Making the Same (Inv. No. 337-TA-833). In the Order, ALJ Rogers denied Complainant Align Technology Inc.’s (“Align”) motion to compel Respondent ClearCorrect Operating, LLC (“ClearCorrect”) to produce a document clawed back under a claim of attorney-client privilege.
According to the Order, ClearCorrect produced several documents to Align on February 20, 2012, including a two-page document containing “a clear, although generic, reference to attorneys.” While Align claimed that the document was not marked as privileged, “out of an abundance of caution,” Align notified ClearCorrect that that the two-page document was included within the February 20 production. In response, ClearCorrect stated the document was privileged, inadvertently produced, and demanded its return per Federal Rule of Evidence 502. Align argued that the document was not privileged, because (i) ClearCorrect had not shown that it was prepared by ClearCorrect’s attorneys for use in this investigation, (ii) ClearCorrect waived privilege by voluntarily producing the document, (iii) even if Federal Rule of Evidence 502 applied, ClearCorrect still waived privilege because it had not shown that it took reasonable steps to prevent disclosure, and (iv) it did not promptly take reasonable steps to rectify the error. ClearCorrect opposed the motion on the grounds that Align’s motion violated several ground rules, since (i) the parties had expressly agreed not to log privilege documents created or dated after February 2011, and the document at issue was created in February 2012, (ii) an impasse was not declared at the Discovery Committee meeting, and (iii) Align failed to make a good faith effort to resolve the dispute before filing the motion. As to the substance of the attorney-client privilege, ClearCorrect argued that the document was clearly privileged, since the document was a communication from a client to an attorney to secure legal advice in a legal proceeding, and that the inadvertent production of the document did not constitute a waiver because all elements of Federal Rule of Evidence 502 were met.
ALJ Rogers agreed with ClearCorrect and determined that Align’s motion is precluded by Ground Rule 4.10.2, which states (emphasis added):
Any party seeking production of allegedly privileged documents shall file an appropriate motion only after examining the privileged document list. The Administrative Law Judge is aware that, oftentimes, parties agree that production of a privilege log is not necessary. The Administrative Law Judge finds such an agreement to be acceptable; however, if such an agreement is in force, the Administrative Law Judge will not consider any motions involving privileged documents.
ALJ Rogers determined that the parties clearly agreed that documents “created or dated after February 28, 2011” would not need to be identified on a privilege log, and that the document at issue was created in February 2012. He therefore determined that Ground Rule 4.10.2 holds that because of this agreement, he will not consider any motions involving documents such as the one at issue.