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

Filing 255

Discovery Order re ECF No. 247 Joint Discovery Letter Brief regarding Deposition Notices to Three Dentists Affiliated with Plaintiff Simon & Simon. Signed by Judge Thomas S. Hixson on 1/17/2023. (tshlc1, COURT STAFF) (Filed on 1/17/2023)

Case 3:20-cv-03754-VC Document 255 Filed 01/17/23 Page 1 of 3

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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. 247
ALIGN TECHNOLOGY, INC.,
Defendant.

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Align moves to compel the depositions of Drs. Kinnery Patel, Gina Rotkvich and Lauren

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Koch. ECF No. 247. These individuals are dentists who practice at Simon & Simon, one of the

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plaintiffs and proposed class representatives in this action. They are document custodians in this

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case, and their names appear on documents produced in this action concerning Align and Align’s

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products at issue (iTero and Invisalign), as demonstrated by exhibits Align submits in support of

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its motion to compel. Align noticed these depositions under Rule 30 and argues that all three

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individuals are “managing agents” of Simon & Simon, meaning that they do not need to be

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subpoenaed under Rule 45. Plaintiffs do not argue otherwise. Align seeks to depose each witness

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for no more than three hours. The Court grants Align’s motion.

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These witnesses likely have relevant testimony. First, the witness’s testimony is relevant

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to understanding the documents that Simon & Simon has produced. Align cites documents to

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argue that Rotkvich appears to have used physical dental impressions instead of an iTero scanner

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to order Invisalign; that Koch may have used iTero primarily for functions other than ordering

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aligners; and that Patel used iTero to prescribe non-Invisalign aligners from ClearCorrect, a direct

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competitor, and as a certified Invisalign provider and frequent user of Simon & Simon’s iTero

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scanner should have knowledge about the interchangeability of scanners and physical impressions.

United States District Court
Northern District of California

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However, these are just inferences Align is drawing from documents and these witnesses’ job

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responsibilities. Align is entitled to depose these witnesses to learn if they did what the documents

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suggest they did and, if so, how often they did that.

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Second, these subjects are relevant to the case. The degree to which physical dental

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impressions can be a substitute for iTero is relevant to market definition. Align has made a decent

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showing that Rotkvich and Patel have knowledge about that. Align does not need to show that

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Rotkvich and Patel have unique knowledge about that, and the Court understands that there are

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probably thousands of dentists across the country who have thoughts about that subject. But

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Simon & Simon PC filed this lawsuit, so now it must put forward its witnesses who have relevant

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knowledge about issues in the case. Customer testimony can be relevant to market definition, and

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the iTero customer that filed this lawsuit should not be surprised when its witnesses are called

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upon to testify.

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It is no response for Plaintiffs to say that they might try to show monopoly power through

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direct evidence rather than indirect evidence. Testimony does not need to be relevant to every

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theory of liability to be relevant, and Plaintiffs have certainly not disclaimed reliance on indirect

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evidence. It is also no response, or at least not much of a response, to say that using indirect

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evidence to define a relevant market is an economic exercise involving an analysis of cross-

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elasticity of demand. Economic expert opinions are almost never accepted at face value by the

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other side, and a common criticism is that an expert made some assumption that is contrary to the

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facts. If the named plaintiff’s own dentists testify that physical impressions are a good substitute

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for iTero, then an opinion to the contrary by Plaintiffs’ expert would look foolish. By contrast, if

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the testimony of the named plaintiff’s dentists is consistent with plaintiffs’ expert opinion, that

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will tend to bolster the opinion.

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Whether iTero can be used for meaningful functions other than ordering scanners and

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whether it can be used to prescribe non-Invisalign aligners are also relevant subjects. They may

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not be dispositive subjects, but that is not what relevance means. What dentists use iTero for is

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relevant in the general sense of understanding Align’s products and the factual question of how

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iTero and Invisalign relate to each other. Both sides’ experts are likely to make strong
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Case 3:20-cv-03754-VC Document 255 Filed 01/17/23 Page 3 of 3

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assumptions or offer strong opinions about how iTero and Invisalign relate to each other in the

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marketplace, and customer testimony on that issue may be helpful in evaluating those assumptions

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or opinions.

United States District Court
Northern District of California

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Align is not obligated to accept Plaintiffs’ offer that in place of deposing these three

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witnesses, it could depose Dr. Simon as a Rule 30(b)(6) witness. Whether to seek the deposition

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of a specific person under Rule 30(b)(1) or of an entity under Rule 30(b)(6) is ordinarily a choice

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for the deposing party to make. The options represent a trade-off: Under Rule 30(b)(1), the

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deposing party can pick the witness but is stuck with the limits of that witness’s knowledge and

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memory. By contrast, under Rule 30(b)(6), the deposing party can demand a witness who is

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knowledgeable about certain subjects but can’t dictate who that person will be. In general, that

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trade-off is for the deposing party to make. The Court can limit that choice, of course, if it

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becomes disproportional to the needs of the case or unduly burdensome. But three three-hour

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depositions are neither of those things.

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Plaintiffs’ argument that allowing this handful of short depositions would cause Simon &

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Simon to lose significant revenue is difficult to take seriously. Nobody goes to work every single

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day. Presumably these dentists take vacations, use sick days, report for jury duty, and so on.

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Preparing for and attending a three-hour deposition is not an undue burden. And if the witnesses

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prefer, they can be deposed on the weekend.

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The January 17, 2023, hearing on Align’s motion to compel is VACATED, and the motion
is GRANTED.
IT IS SO ORDERED.

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Dated: January 17, 2023

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THOMAS S. HIXSON
United States Magistrate Judge

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