Lu v. Align Technology, Inc. et al

Filing 182

ORDER by Magistrate Judge Virginia K. DeMarchi re 174 May 18, 2021 Discovery Dispute re Defendants' Interrogatories Nos. 9 and 11.(vkdlc2S, COURT STAFF) (Filed on 6/3/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SEB INVESTMENT MANAGEMENT AB,
et al.,

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United States District Court
Northern District of California

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Plaintiffs,
v.
ALIGN TECHNOLOGY, INC., et al.,

Case No. 18-cv-06720-LHK (VKD)
ORDER RE MAY 18, 2021 DISCOVERY
DISPUTE RE DEFENDANTS'
INTERROGATORIES NOS. 9 AND 11
Re: Dkt. No. 174

Defendants.

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Plaintiff SEB Investment Management AB (“SEB”) and defendant Align Technology, Inc.

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(“Align”) dispute whether SEB has provided complete responses to Align’s Interrogatories Nos. 9

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and 11. Dkt. No. 174. The Court held a hearing on the matter on June 1, 2021. Dkt. No. 178.

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The parties dispute whether SEB should be required to supplement its answers to the
following interrogatories:
Interrogatory No. 9: For each transaction identified in YOUR
response to Interrogatory No. 7, identify each PERSON with whom
YOU consulted OR conferred before engaging in the transaction.
Interrogatory No. 11: Identify AND describe the role, job, title,
AND dates of employment of ALL PERSONS involved in OR
responsible for (including, but not limited to, officers, directors,
trustees, managers, brokers, investment consultants, FINANCIAL
ADVISORS, analysts, OR PORTFOLIO MANAGERS) YOUR
decision(s) to purchase, sell, hold, OR otherwise acquire OR dispose
of ALIGN SECURITIES from January 1, 2018 to present.

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Dkt. No. 174-1 at 5. As presented in the parties’ joint submission, the issue in dispute was
whether these interrogatories encompass the identification of persons who may have provided
advice to SEB concerning “investment strategy,” even if that advice was not about a particular

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transaction. During the hearing, it appeared that the parties’ disagreement might not be material to

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SEB’s interrogatory answers. However, as the matter has been briefed and argued, the Court will

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decide it.

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Interrogatory No. 9 plainly requires SEB to identify each person with whom it consulted or

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conferred before engaging in the relevant transactions. The interrogatory is not limited to

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conference or consultation about a specific transaction, but encompasses advice bearing on each

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transaction that SEB ultimately made. If SEB obtained strategic investment advice that it

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considered in any way before engaging in the relevant transactions (whether it relied on the advice

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in whole or in part, or rejected the advice), it must disclose the person or persons with whom it

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United States District Court
Northern District of California

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consulted or conferred to obtain that advice.
Interrogatory No. 11 is limited to persons involved in or responsible for SEB’s decisions to

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transact in Align securities during the specified time period. SEB’s obligation to identify such

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persons does not depend on whether the person was a provider of strategic investment advice, but

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on whether the person was “involved in” or “responsible for” SEB’s decisions. SEB must identify

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all such persons. A person is not involved in or responsible for decision-making if he or she

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merely provides advice to someone else who has a decision-making role.

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SEB must either amend its responses to Interrogatories Nos. 9 and 11 to comply with the

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foregoing discussion, or it must advise Align in writing that it has no amendments to make

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because its existing answers fully respond to these interrogatories. Any amended responses must

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be served by June 15, 2021 and must be verified, unless the parties agree to a different deadline.

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IT IS SO ORDERED.
Dated: June 3, 2021

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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