Simon and Simon, PC v. Align Technology, Inc.

Filing 189

Discovery Order re: 174 Joint Discovery Letter Brief REGARDING PRIVILEGE LOG PRODUCTION DATE filed by Simon and Simon, PC. Signed by Judge Thomas S. Hixson on 11/7/2022. (tshlc1, COURT STAFF) (Filed on 11/7/2022)

Case 3:20-cv-03754-VC Document 189 Filed 11/07/22 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SIMON AND SIMON, PC, et al.,
Plaintiffs,

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DISCOVERY ORDER

v.

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Re: Dkt. No. 174

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ALIGN TECHNOLOGY, INC.,
Defendant.

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United States District Court
Northern District of California

Case No. 20-cv-03754-VC (TSH)

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The parties have a dispute about when Align should be required to produce its amended

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privilege log. ECF No. 174.1 Through meet and confer, they have narrowed the dispute so that it

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now focuses on two items: (1) entries for all documents withheld from the productions Align has

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made over the last several months, and (2) various other documents that Align did not include in

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prior logs. Plaintiffs state that the first category includes approximately half of Align’s total

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document production to date. Align states that the first category includes about 160,000

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documents it recently produced in response to the Court’s July 1, 2022 discovery order at ECF No.

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140. Align states that this document production involves reviewing thousands of documents for

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the log and that its proposed November 18, 2022 deadline to serve an amended privilege log is 60

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days after the date of the related document production.
Sixty days to prepare a privilege log for an associated document production of this size is

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reasonable, and the Court accepts Align’s proposed November 18, 2022 deadline. The Court is

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sympathetic to Plaintiffs’ desire to have the updated log sooner, but we have to be realistic about

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The filing is captioned as if it were also filed in 21-3269, and the first page states it is filed on
behalf of the parties in 21-3269 as well as this case. However, the Court did not see that it
actually was filed in 21-3269. Accordingly, the Court enters this order only in 20-3754.

United States District Court
Northern District of California

Case 3:20-cv-03754-VC Document 189 Filed 11/07/22 Page 2 of 2

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what happened here: Plaintiffs raised a major dispute about Align’s search terms approximately

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two years after this lawsuit was filed. The parties trade accusations about whose fault that was,

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but there is no denying that search terms are one of the foundational issues that are supposed to get

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hashed out at the beginning of fact discovery. Waiting until late in fact discovery to raise the basic

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issue of what search terms your opponent should run unavoidably poses problems. If you win, as

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Plaintiffs did here, your opponent will need time to redo its document production and perform

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related tasks like updating its privilege log. Plaintiffs’ desire not only for Align to produce its

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updated log by October 31, 2022 but also to resolve all privilege challenges to the updated log

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before depositions begin in earnest is simply infeasible in light of the January 31, 2023 fact

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discovery cutoff. Accordingly, the Court accepts Align’s proposed November 18, 2022 deadline

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for the updated log.

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IT IS SO ORDERED.

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Dated: November 7, 2022

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THOMAS S. HIXSON
United States Magistrate Judge

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