Antitrust Law Daily Wrap Up, ANTITRUST—D. Mass.: Non-party subpoena partially enforced in orthodontic system case, (May 4, 2026)
Law Firms Mentioned:Epstein Becker & Green, P.C. | Paul Hastings LLP
Organizations Mentioned:Align Technology | Align Technology, Inc. | Eagle Fund Distributors, Inc. | Epstein Becker & Green, PC | Lightforce Orthodontics, Inc. | Paul Hastings, LLP
By Kenneth H. Ryesky, M.B.A., J.D.
Protective order in underlying litigation, limiting disclosure to parties' outside counsel, was potentially insufficient to prevent disclosure of trade secrets to others if introduced at trial.
The federal district court in Boston, Massachusetts has partially granted a motion to quash a subpoena served on a non-party for deposition testimony that was allegedly needed to defend against an antitrust counterclaim in a dispute between manufacturers who produce clear teeth aligners, an alternative form of traditional braces, as well as intraoral scanners, which take digital pictures of a patient’s mouth to create the aligners. The subpoena, which was found to have been timely served, requested testimony regarding six separate topics. The topics were evaluated in light of trade secret confidentiality and undue burden concerns, and the quash motion was partially denied, partially granted outright, and partially granted subject to a ruling on a motion pending in a different district court (LightForce Orthodontics, Inc. v. Align Technology, Inc., No. 1:25-mc-91583-AK (D. Mass. Apr. 27, 2026)).
Background. In 2024, Align Technology, Inc. filed a lawsuit in a Texas federal district court against ClearCorrect Operating, LLC and related entities (collectively, ClearCorrect), alleging infringement by ClearCorrect of nine patents that pertain to Align's Invisalign® system for straightening and adjusting patients' teeth. ClearCorrect asserted various counterclaims in its answer [Align Technology, Inc. v. ClearCorrect Operating, LLC, 6:24-cv-00187, (W.D. Tex.)].
On July 9, 2024, ClearCorrect filed an antitrust counterclaim against Align, alleging Align has monopolized the “doctor-directed clear aligner” and “handheld intraoral scanner” markets. Align now seeks documents and testimony from nonparty LightForce Orthodontic, Inc., an alleged competitor, to defend against the antitrust counterclaims.
On February 14, 2025, Align served a subpoena upon non-party LightForce for information necessary to define the relevant product market in defending itself against ClearCorrect's counterclaims. The designated place of compliance for that subpoena was the District of Columbia. LightForce objected to that subpoena in the federal district court there, and Align's motion to compel LightForce to comply remains pending [In re Motion to Compel Compliance with Subpoena Directed to LightForce Orthodontics, Inc., No. 25-MC-00158 (D.D.C.)].
On November 13, 2025, Align served an additional subpoena upon LightForce, this time seeking deposition testimony and designating Burlington, Massachusetts as the place of compliance. Following unproductive discussions among counsel for the parties, LightForce moved to quash or modify the subpoena in the Massachusetts federal district court.
LightForce objected to the deposition topics on the bases of (1) timeliness of the subpoena; (2) trade secrets protection; and (3) undue burden and vagueness. The court found that the subpoenas were served timely.
Trade secrets. The judge granted LightForce's motion to quash the subpoena regarding LightForce's business strategy and market analyses. These were found to be valid trade secrets, and Align did not show that its need for such information from LightForce was substantial. Here, such information could likely be derived from information in Align's own hands and/or discoverable from ClearCorrect. For similar reasons, the court quashed the subpoena as it pertained to (1) information regarding orthodontists' interchange between Align's and ClearCorrect's products; and (2) LightForce's "competitive positioning" in the "total addressable market for its products."
The court ordered LightForce to disclose information regarding its revenue growth since its entry into the U.S. markets. Here, LightForce had already made some of that information public, and the information was substantially needed by Align to defend against ClearCorrect's counterclaims. The protective order in the underlying Texas litigation, limiting disclosure to individuals such as outside counsel and court staff members gave reasonable mitigation to the risks of trade secret disclosure relating to this information.
Undue burden. Although the court required LightForce to disclose the information regarding its revenue growth following its U.S. market entry, the information sought in connection with the market entry itself was found to be unduly broad and burdensome. The court ordered Align to amend the subpoena to "specify the outer limits of the topics noticed and the particular period from which it seeks this information."
The requested information regarding the use of Align's iTero™ scanners by LightForce's customers to order LightForce products was necessary for Align to mount its defense, and the court found that LightForce would not incur an undue burden in disclosing the information to Align.
The Case is No. 1:25-mc-91583-AK.
Judge: Kelley, A.
Attorneys: Adam R.D. Paine (Epstein Becker & Green, P.C.) for Lightforce Orthodontics, Inc. Sameer P. Sheikh (Paul Hastings LLP) for Align Technology, Inc.
Companies: Lightforce Orthodontics, Inc.; Align Technology, Inc.
Cases: Antitrust MassachusettsNews