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

Filing 212

Discovery Order re 184 Joint Discovery Letter Brief Regarding Privilege. Signed by Judge Thomas S. Hixson on 11/29/2022. (tshlc1, COURT STAFF) (Filed on 11/29/2022)

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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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United States District Court
Northern District of California

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

v.

Re: Dkt. No. 184
ALIGN TECHNOLOGY, INC.,
Defendant.

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This order is a follow-up to the Court’s November 28, 2022 order at ECF No. 209. For

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ALIGNPURCHPRIV00004559, the Court understands that the parties will address Plaintiffs’

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challenge to Align’s privilege claim in the next round of challenges. The Court sustains Align’s

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claim of privilege as to ALIGNPURCHPRIV00005583 and ALIGNPURCHPRIV00007956.

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The Court overrules Align’s claim of privilege as to ALIGNPURCHPRIV00009620 and

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its attachment ALIGNPURCHPRIV00009621. Notwithstanding the inclusion of an in house

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attorney in the group, these documents contain purely business discussion, with no legal advice

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provided or requested. Align’s “new description” of the basis for its claim of privilege (ECF No.

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184-1) says that -9620 “reflects” legal advice. That could be true, but lots of non-privileged

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materials reflect legal advice. Fully executed contracts, signed by both sides, typically reflect the

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legal advice that each side’s lawyers provided to the business folks before they finalized the deal.

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The emails and phone calls in which the lawyers provided that advice are privileged, but the

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document that resulted from that advice is not. For that matter, the Golden Gate Bridge probably

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reflects legal advice from attorneys about how to ensure that the design and construction of the

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bridge complied with applicable legal requirements. Again, the conversations in which that advice

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was given were privileged, but the end result of that advice – i.e., the bridge – is not. Here, it may

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be that the business strategies discussed in -9620 and -9621 reflect legal advice, and if so, then the

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communications in which that advice was given are privileged. But these resulting business

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discussion documents are not

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IT IS SO ORDERED.

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Dated: November 29, 2022

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THOMAS S. HIXSON
United States Magistrate Judge

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United States District Court
Northern District of California

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