Simon and Simon, PC v. Align Technology, Inc.
- Vince Chhabria
- 3:20-cv-03754
- U.S. District Court · Northern District of California
- 3
In Simon and Simon v. Align Technology, Judge Hixson resolved privilege challenges to 16 documents and ordered limited corrections or explanations.
Simon and Simon, PC and the other plaintiffs, and Align Technology, Inc.; the order primarily required Align to provide corrected documents, explanations, or an attachment while upholding several of Align’s privilege claims.
What happened
In Simon and Simon, PC v. Align Technology, Inc., the plaintiffs challenged Align’s claims that 16 documents or portions of documents were protected from disclosure. The dispute also raised broader questions about Align’s privilege log.
The court upheld Align’s privilege claims for several documents and redacted portions, including emails involving outside consultant Shannon Henderson. It found that Henderson was effectively part of Align’s staff for this work. Align withdrew its privilege claim for one document, while the court required additional information or corrected submissions for several others.
The court ordered Align to submit explanations, corrected documents, or an attachment by November 29, 2022, and said the parties could discuss whether one document was responsive at a hearing. Judge Thomas S. Hixson signed the discovery order.
The detailed version
- Simon and Simon, PC v. Align Technology, Inc. · No. 3:20-cv-03754
- Vince Chhabria
- Nov. 28, 2022
Background
The parties filed a joint discovery letter brief concerning Plaintiffs’ challenge to Align’s privilege claims for 16 documents and broader concerns about Align’s privilege log. The order addressed each document listed in the opinion.
Document-by-document rulings
- ALIGNPURCHPRIV00001865: Align withdrew its privilege claim. The court stated that the parties could discuss at the hearing Align’s separate claim that the document was not responsive. - ALIGNPURCHPRIV00002619: The court sustained Align’s privilege claim over the redacted material. - ALIGNPURCHPRIV00003172: The court sustained Align’s privilege claim. - ALIGNPURCHPRIV00004559: Align was ordered to file a brief statement explaining why the document was privileged by November 29, 2022, at 3:00 p.m. The court noted that Align discussed a different document number, and that the document at issue appeared to be a 26-page email thread rather than a draft contract. - ALIGNPURCHPRIV00005265: The court sustained Align’s privilege claim. - ALIGNPURCHPRIV00005332: The court sustained Align’s privilege claim. - ALIGNPURCHPRIV00005478: The court sustained Align’s privilege claim. The court held that Shannon Henderson, an outside consultant from Ethos Communications, did not destroy the privilege because she was the functional equivalent of a corporate employee. The court found that the privileged emails showed Henderson had been essentially incorporated into Align’s staff. - ALIGNPURCHPRIV00005581: The court sustained Align’s privilege claim. - ALIGNPURCHPRIV00005583: The court ordered Align to submit the correct document by November 29, 2022, at 3:00 p.m. The document submitted for confidential review consisted only of Shirley Stacy’s email signature. - ALIGNPURCHPRIV00005629: The court sustained Align’s privilege claim. - ALIGNPURCHPRIV00006133: The court sustained Align’s privilege claim. - ALIGNPURCHPRIV00006504: The court sustained Align’s privilege claim over the redacted material. - ALIGNPURCHPRIV00007616: The court sustained Align’s privilege claim over the redacted material. - ALIGNPURCHPRIV00007956: Align was ordered either to submit a corrected document or file a corrected “reason for privilege” by November 29, 2022, at 3:00 p.m. - ALIGNPURCHPRIV00009620: The court stated that it could not evaluate Align’s privilege claim without reviewing the attachment and ordered Align to submit the attachment by November 29, 2022, at 3:00 p.m.
Disposition
The order sustained Align’s privilege claims for the specified documents and redacted materials, while requiring additional submissions or explanations for other documents. It did not decide the underlying merits of the parties’ dispute. The discovery order was signed by United States Magistrate Judge Thomas S. Hixson.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.