Preview
FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021
Exhibit V
July 22-26, 2019, Meet & Confer Email Exchange Between the Parties’ Litigation Counsel
Re: Discovery Disputes
Index No. 652343/2018 Motion Seq. No. __
FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018
10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021
Arielle Kane
Re: Cresco v. Fiorello
1 message
Arielle Kane Fri, Jul 26, 2019 at 12:53 PM
To: Jason Hipp
Cc: "Fedornak, Melissa" , Rachel Izower
Dear Jason:
As Rachel requested on our call today, I write separately to address the discrete issue of the
production of documents relating to the Valley/GTI transactions and communications with the
DOH regarding such transactions.
Defendant previously agreed to produce (a) the final GTI deal documents as submitted to the
DOH, including amendments, along with (b) communications with the DOH regarding the GTI
transaction and/or (c) communications bearing on the DOH’s approval (or non-approval) of the
GTI transaction. Defendant sought reciprocal information from Plaintiffs with respect to its
transaction with Valley.
We understand Plaintiffs’ production will be more narrow, however, and I write to confirm that
Defendant’s production with respect to these categories will be precisely coextensive with what
Plaintiffs will provide.
Specifically, our understanding is that Plaintiffs will not, at this time, produce all final deal
documents and amendments executed with Valley. Rather, you are proposing to produce redacted
versions of certain of those agreements to the extent they reveal the financial terms of the
transaction “broadly construed.”
We agreed on our call that, in advance of the production of Valley/GTI deal documents, we will
have a further meet and confer dedicated to this issue specifically, where we can proceed section
by section to determine what information Plaintiffs are proposing to redact so that Defendant can
similarly limit its disclosures with respect to its agreements with GTI.
Further, Plaintiffs will not agree to produce communications with the DOH regarding the Valley
transaction or that bear on the DOH’s approval of same. Plaintiffs have agreed only to produce
documents sufficient to show “the status of the DOH’s approval.” Accordingly, Defendant
likewise will limit its production on this score to documents sufficient to show the status of the
DOH’s approval of its transaction with GTI.
To be clear, Defendant’s production with respect to these categories of documents will mirror
Plaintiffs’ more limited agreement regarding production. This email modifies Defendant’s
responses to Plaintiffs’ Requests and any prior agreement by Defendant to produce the
aforementioned categories of documents for all purposes.
ill i l di h h i di d d ’ ll
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FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018
10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021
I will write separately regarding the other issues discussed on today’s call.
Kind regards,
Arielle Kane, Esq.
Izower Feldman, LLP
11 Broadway, Suite 615 ~ New York, NY 10004
Tel: (212) 765-0663 ~ Fax: (646) 304-7071
1325 Franklin Avenue, Suite 255 ~ Garden City, NY 11530
Tel: (212) 765-0663 ~ Fax: (646) 304-7071
akane@izowerfeldman.com
The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or
privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this
information by persons or entities other than the intended recipient is prohibited. If you received this transmission in error, please
contact the sender by reply e-mail or by telephone and delete and destroy all copies of the material, including all copies stored in
the recipient's computer, printed, or saved to disk.
Disclosure Pursuant to Treasury Regulations in Circular 230: To ensure compliance with requirements imposed by the Internal
Revenue Service, we inform you that any tax advice contained in this communication (including any attachments) was not intended
or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or
(ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
On Mon, Jul 22, 2019 at 4:21 PM Arielle Kane wrote:
Dear Jason:
In advance of our next meet and confer, below please find an inexhaustive statement of issues remaining
with Plaintiffs’ responses to Defendant’s discovery requests.
Clawback Request of July 16. Please confirm you have successfully deleted or destroyed all images,
data, metadata, and copies of documents bearing numbers D015951-57 and D020505-10 from your
records, clawed back any copies of such documents or data from any parties to whom it may have been
sent, and removed from your system any information derived from these documents, as requested in my
July 16 email to Melissa Fedornak. Per our correspondence, we agreed to maintain copies of these
documents and will log them on our privilege log.
Document Requests 1-4 and 7. As we have noted previously, these requests seek documents that go to the
heart of the parties’ dispute in this matter. While you have retreated from your initial position that you
would not produce documents already in Fiorello’s possession and confirmed you searched for documents
naming the Fiorello shareholders (except for John Sullivan, whose email address was included in the list of
search terms we provided you on July 2), we are still left wondering what if any documents responsive to
these requests you are withholding.
You told us your collection attempted to capture all documents concerning Fiorello or the LOI by
searching such terms as “Fiorello,” “LOI,” and “Letter of Intent.” You did not, however, agree to produce
all responsive, non-privileged documents identified by your collection.
Instead, you have at various points agreed to produce documents that are “relevant to the claims
and defenses at issue in this lawsuit,” (Responses to Requests 1, 2, & 3) or documents “responsive to one
or more of the other, more specific Requests concerning the LOI” or “the transaction contemplated by the
LOI” (Responses to Requests 4 & 7).
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FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018
10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021
As an initial matter, you are not the arbiter of what is relevant to the claims and defenses in this
lawsuit. These Requests seek documents and information concerning the central transaction in this case.
As we stated during our July 8 meet and confer, Plaintiffs do not get to substitute their judgment for ours
as to what is relevant or material. Your objections as to the relevance of discovery material are preserved.
It is your obligation to produce material responsive to Defendant’s requests.
Moreover, as we have stated, Defendant’s more specific Requests targeting certain provisions of
the LOI or the transaction contemplated thereby were meant to be illustrative, not limiting. We believe all
documents relating to the LOI or the transaction contemplated thereby are relevant in their totality. Indeed,
it eludes us what, if any, documents responsive to Requests 1-4 and 7 would not be relevant or material in
this case.
Accordingly, please confirm you will produce all documents responsive to Requests 1-4 and 7 and,
if not, explain or describe what responsive documents Plaintiffs are withholding from production.
Document Requests 5, 6, & 37. These Requests seek documents or communications with or concerning
Liberty Health Services (LHS) and Green Thumb Industries (GTI). You previously represented that your
collection efforts attempted to capture all documents concerning Fiorello, the LOI, or the transaction
contemplated by the LOI—including communications with or concerning third parties such as LHS and
GTI—and would produce such information that is responsive to one of Defendant’s other Requests. That
is only a partial response to these particular Requests, however.
To address any concerns you may have as to scope, as part of an overall agreement with respect to
discovery, we will agree to limit production responsive to these Requests to the period 11/1/17 through
4/30/18. With that limitation in mind, please confirm you will produce all documents responsive to
Requests 5, 6, and 37 and, if not, explain or describe what responsive documents Plaintiffs are withholding
from production.
Document Requests 18-20. These Requests seek documents and information pertinent to evaluating
Plaintiffs’ damages claims. Plaintiffs have agreed to produce documents “sufficient to show” their
damages, without agreeing to provide the underlying bills or documents that we are entitled to parse and
test. We maintain our right to the disclosure of documents sought in these Requests but, because we have
yet to see what documents Plaintiffs are preparing to produce to evidence their damages, as part of an
overall agreement with respect to discovery, we agree to table our objection to your limitation pending
review of what you actually produce.
Document Request 21. This Request seeks documents concerning the negotiation of the terms of any
Definitive Agreement and/or the transaction contemplated by the LOI—again, a very basic request going
to the heart of the parties’ dispute. This was a central discussion during our last meet and confer. While
your Response to this Request stated you would not produce documents in response to this Request, you
said during our last meet and confer that documents concerning the transaction contemplated by the LOI
would be captured and produced in response to other Requests. That is only a partial response to this
particular Request, however. Please confirm you will produce all documents responsive to Request 21 and,
if not, explain or describe what responsive documents Plaintiffs are withholding from production.
Document Requests 24-30, & 39. These Requests seek information relating to Cresco’s fundraising or
borrowing efforts. We agreed during our last meet and confer to limit these requests to responsive
documents relating to (a) expanding Plaintiffs’ business into New York, (b) concerning a medical
marijuana license in New York, or (c) concerning Fiorello specifically.
Please confirm your intent to produce documents responsive to these Requests, as narrowed during
our last call and, if not, explain or describe what responsive documents Plaintiffs are withholding from
production. (We note, specifically, we have seen nothing in your productions as yet regarding Plaintiffs’
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FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018
10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021
communications with any regulatory body, and the DOH, in particular, regarding expansion, acquisition, or
Fiorello, and we would like your confirmation you will produce such documents.)
Additionally, we noted several documents from Plaintiffs’ productions comprising communications
with unknown parties regarding efforts to secure investment, fundraising, and/or borrowing in apparent
partial response to these Requests. These documents are redacted significantly on what appear to be non-
privileged grounds. Specifically, the redactions appear to be focused principally on the sender and recipient
information from emails—critical information, the absence of which, impedes Defendant’s ability to
understand and properly contextualize the documents. As you are well aware, the parties’ productions are
already protected by the Stipulation for the Production and Exchange of Confidential Information,
awaiting order in this case, which provides for the protection of sensitive information of the highest order,
including “trade secrets, proprietary business information, [and] competitively sensitive information....”
Moreover, Plaintiffs’ apparently deliberate manipulation of the metadata accompanying these documents,
to remove the sender, recipient, and other data, violates paragraph F.4. of the Stipulation and Order
regarding Electronic Discovery in this case.
There is simply no basis to withhold this information in violation of multiple orders in force in this
case. Accordingly, we demand the immediate production of unredacted versions of all documents
produced by Plaintiffs to date.
Document Request 31. This Request seeks information concerning Plaintiffs’ communications with the
media, which is directly relevant to Defendant’s counterclaims. Plaintiffs refused to produce documents in
response to this Request.
To address any concerns you may have as to scope, as part of an overall agreement with respect to
discovery, we will agree to limit this request to documents relating to (a) expanding Plaintiffs’ business
into New York, (b) concerning a medical marijuana license in New York, or (c) concerning Fiorello
specifically.
With that limitation in mind, please confirm you will produce all documents responsive to Request
31 and, if not, explain or describe what responsive documents Plaintiffs are withholding from production.
Document Requests 33 & 34. These Requests seek documents and communications concerning Valley
Agricueticals (Valley). To parallel Defendant’s agreement to produce documents relating to GTI, we are
prepared, as part of an overall agreement with respect to discovery, to limit these Requests to (i) all
responsive documents for the period 11/1/17 through 4/30/18 and (ii) for the period 5/1/18 through
5/31/19, limit production to (a) the final deal documents, including any amendments, with Valley, (b)
communications with the DOH or concerning the DOH with respect to the Valley transaction, and (c) all
documents bearing on the DOH’s approval (or non-approval) of the Valley transaction.
With that limitation in mind, please confirm you will produce all documents responsive to Requests
33 and 34 and, if not, explain or describe what responsive documents Plaintiffs are withholding from
production.
Document Request 35. This Request seeks communications with anyone regarding expanding to the New
York market. Plaintiffs refused to produce documents in response to this Request.
To address any concerns you may have as to scope, as part of an overall agreement with respect to
discovery, we will agree to limit this request to the period 11/1/17 through 4/30/18. With that limitation in
mind, please confirm you will produce all documents responsive to Request 35 and, if not, explain or
describe what responsive documents Plaintiffs are withholding from production.
Document Request 38. This Request seeks information concerning Plaintiffs’ shareholders and/or
members—parties that would have had to approve any deal contemplated by the LOI. Plaintiffs refused to
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FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018
10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021
produce documents in response to this Request, while at the same time, demanding similar information for
Defendant’s shareholders. We ask that you confirm you will produce all documents responsive to Request
38 and, if not, please articulate your basis for withholding such information.
Document Request 40. This Request seeks all communications concerning Fiorello or Plaintiffs’ having
operations in New York. We ask that you confirm documents responsive to this Request are being
produced in response to one or more other Requests and, if not, explain or describe what responsive
documents Plaintiffs are withholding from production.
Document Requests 41 & 42. These Requests seek information and communications with Plaintiffs’
governing boards, shareholders, and/or members, including minutes or other documentation on matters on
which they were asked to vote.
To address any concerns you may have as to scope, as part of an overall agreement with respect to
discovery, we will agree to limit production responsive to these Requests to the LOI, the transaction
contemplated by the LOI, and/or Fiorello. As narrowed, Plaintiffs’ response to these Requests should fall
within your responses to Requests 1-4 and 7. With the foregoing limitation in mind, please confirm your
agreement to produce all documents responsive to Requests 41 and 42, and, if not, explain or describe
what responsive documents Plaintiffs are withholding from production.
Document Request 44. This Request seeks information concerning Plaintiffs’ alleged investigation into
the John Does as alleged in paragraph 10 of the Amended Complaint. Plaintiffs refused to produce
documents in response to this Request. It is difficult to imagine the basis on which Plaintiffs would refuse
this Request. Defendant is entitled to know what information Plaintiffs base their allegations and,
specifically, what information Plaintiffs believe evidences Defendant’s alleged breach of the LOI.
Accordingly, please confirm your agreement to produce all documents responsive to Request 44, and, if
not, please articulate your basis for withholding such information.
Document Request 47. This Request seeks information concerning the allegations in paragraph 41 of the
Amended Complaint, which is in two parts: one, that, Plaintiffs’ acquisition of another company in
October 2018 was at a price greater than what Plaintiffs were prepared to pay in a deal with Defendant,
and two, that “[t]he increased cost was a direct result of the significant increase in the value of medical
cannabis companies with a New York license during the period when Cresco complied with its obligations
under the No-Shop Provision.” Plaintiffs agreed to provide only documents sufficient to show the
allegations set forth in paragraph 41.
As to part one of the allegations — Plaintiffs’ statement its subsequent acquisition was at a greater
price—we are, as part of an overall agreement as to the scope of discovery, prepared to accept the final,
executed versions, of all deal documents pertaining to such acquisition—which mirrors Defendant’s
agreement to produce its final deal documents with GTI. With that limitation in mind, please confirm your
agreement to produce such deal documents and, if not, please articulate your basis for withholding such
information.
As to part two of the allegations, it is insufficient for Plaintiffs to produce only documents
“sufficient to show” the cause(s) of the increase in price paid by Plaintiffs in its subsequent deal. We are
entitled to a fulsome understanding of the basis for Plaintiffs’ allegation that the increased amount was
owing to changes in circumstances based on the parties’ conduct. Please confirm your agreement to
produce all documents responsive to Request 47, and, if not, please articulate your basis for withholding
such information.
Document Request 50. This Request seeks information concerning Plaintiffs’ efforts to enter the New
York market during the period 3/30/18 through the present. Plaintiffs refused to produce documents in
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FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018
10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021
response to this Request. As part of an overall agreement as to the scope of discovery, we are prepared to
limit this Request to the period 3/30/18 to 4/30/18. With that limitation in mind, please confirm your
agreement to produce all documents responsive to Request 50 and, if not, explain or describe what
responsive documents Plaintiffs are withholding from production.
Document Request 51. This Request seeks drafts and other materials relating to Plaintiffs’ IPO. Plaintiffs
refused to produce documents in response to this Request. As part of an overall agreement as to the scope
of discovery, we are prepared to limit this Request to the final IPO materials. Please confirm your
agreement to produce Plaintiffs’ final IP documents, and, if not, please articulate your basis for
withholding such information.
Document Request 52. This Request seeks Plaintiffs’ annual, quarterly, and periodic financial
information, which is directly relevant to Plaintiffs’ ability to consummate the transaction contemplated by
the LOI and to representations Plaintiffs made in the LOI. Plaintiffs refused to produce documents in
response to this Request. As part of an overall agreement as to the scope of discovery, we are prepared to
limit this Request to the period 9/1/17 through 6/30/18. With that limitation in mind, please confirm your
agreement to produce all documents responsive to Request 52 and, if not, please articulate your basis for
withholding such information.
Document Request 54. This Request seeks copies of all final, binding, contracts, agreements, and/or
commitments with Valley. Plaintiffs agreed only to produce information sufficient to show they entered
into a more expensive replacement transaction. As set out above, we asked for these documents as a
compromise on certain other Requests and as part of an overall agreement with respect to the scope of
discovery. Defendant’s request also parallels its commitment to produce final deal documents with GTI.
Defendant is entitled to know the totality of the terms of the supposed replacement transaction, not merely
documents sufficient to show the expense alleged. Financial terms are not the only relevant terms in
evaluating a deal or its overall impact. Please confirm your agreement to produce the documents requested
in this Request 54 and, if not, please articulate your basis for withholding such information.
Interrogatories. For the reasons explained above and as further discussed during our prior meet and
confer calls, Plaintiffs’ responses to interrogatories are deficient, including for example by their refusal to
identify people:
with knowledge of their efforts to expand into the New York market (Interrogatory 2);
with knowledge of their contacts with the media (Interrogatory 3);
with knowledge of their contacts with GTI (Interrogatory 7) and LHS (Interrogatory 8);
third parties with whom Plaintiffs’ communicated concerning Fiorello (Interrogatory 9), including
accountants, investors, bankers and government entities; and
people outside of Cresco with knowledge of the accuracy of the representations and warranties in the
LOI’s “financial” provision, such as Cresco’s accountants, auditors and bankers.
Furthermore, as Plaintiffs’ have refused to provide names in response to these interrogatories, it is
impossible for us to “sign off” on the proposed search terms. Any set of appropriate search terms must be
include searches geared at capturing this information.
Schedule. Finally, we received your proposed changes to the scheduling order and will be prepared to
discuss on our call. We are concerned the proposed schedule will not permit us sufficient time to get
through all the necessary depositions given the timing of the Jewish holidays beginning the end of
September and stretching throughout October.
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FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018
10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello
NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021
Kind regards,
Arielle Kane, Esq.
Izower Feldman, LLP
11 Broadway, Suite 615 ~ New York, NY 10004
Tel: (212) 765-0663 ~ Fax: (646) 304-7071
1325 Franklin Avenue, Suite 255 ~ Garden City, NY 11530
Tel: (212) 765-0663 ~ Fax: (646) 304-7071
akane@izowerfeldman.com
The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential
and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon,
this information by persons or entities other than the intended recipient is prohibited. If you received this transmission in error,
please contact the sender by reply e-mail or by telephone and delete and destroy all copies of the material, including all copies
stored in the recipient's computer, printed, or saved to disk.
Disclosure Pursuant to Treasury Regulations in Circular 230: To ensure compliance with requirements imposed by the Internal
Revenue Service, we inform you that any tax advice contained in this communication (including any attachments) was not
intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal
Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
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FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021 Exhibit V July 22-26, 2019, Meet & Confer Email Exchange Between the Parties’ Litigation Counsel Re: Discovery Disputes Index No. 652343/2018 Motion Seq. No. __ FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018 10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021 Arielle Kane Re: Cresco v. Fiorello 1 message Arielle Kane Fri, Jul 26, 2019 at 12:53 PM To: Jason Hipp Cc: "Fedornak, Melissa" , Rachel Izower Dear Jason: As Rachel requested on our call today, I write separately to address the discrete issue of the production of documents relating to the Valley/GTI transactions and communications with the DOH regarding such transactions. Defendant previously agreed to produce (a) the final GTI deal documents as submitted to the DOH, including amendments, along with (b) communications with the DOH regarding the GTI transaction and/or (c) communications bearing on the DOH’s approval (or non-approval) of the GTI transaction. Defendant sought reciprocal information from Plaintiffs with respect to its transaction with Valley. We understand Plaintiffs’ production will be more narrow, however, and I write to confirm that Defendant’s production with respect to these categories will be precisely coextensive with what Plaintiffs will provide. Specifically, our understanding is that Plaintiffs will not, at this time, produce all final deal documents and amendments executed with Valley. Rather, you are proposing to produce redacted versions of certain of those agreements to the extent they reveal the financial terms of the transaction “broadly construed.” We agreed on our call that, in advance of the production of Valley/GTI deal documents, we will have a further meet and confer dedicated to this issue specifically, where we can proceed section by section to determine what information Plaintiffs are proposing to redact so that Defendant can similarly limit its disclosures with respect to its agreements with GTI. Further, Plaintiffs will not agree to produce communications with the DOH regarding the Valley transaction or that bear on the DOH’s approval of same. Plaintiffs have agreed only to produce documents sufficient to show “the status of the DOH’s approval.” Accordingly, Defendant likewise will limit its production on this score to documents sufficient to show the status of the DOH’s approval of its transaction with GTI. To be clear, Defendant’s production with respect to these categories of documents will mirror Plaintiffs’ more limited agreement regarding production. This email modifies Defendant’s responses to Plaintiffs’ Requests and any prior agreement by Defendant to produce the aforementioned categories of documents for all purposes. ill i l di h h i di d d ’ ll https://mail.google.com/mail/u/1/?ik=dce3beaace&view=pt&search=all&permthid=thread-a%3Ar7194891390134088594%7Cmsg-a%3Ar-6301038317… 1/7 FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018 10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021 I will write separately regarding the other issues discussed on today’s call. Kind regards, Arielle Kane, Esq. Izower Feldman, LLP 11 Broadway, Suite 615 ~ New York, NY 10004 Tel: (212) 765-0663 ~ Fax: (646) 304-7071 1325 Franklin Avenue, Suite 255 ~ Garden City, NY 11530 Tel: (212) 765-0663 ~ Fax: (646) 304-7071 akane@izowerfeldman.com The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you received this transmission in error, please contact the sender by reply e-mail or by telephone and delete and destroy all copies of the material, including all copies stored in the recipient's computer, printed, or saved to disk. Disclosure Pursuant to Treasury Regulations in Circular 230: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. On Mon, Jul 22, 2019 at 4:21 PM Arielle Kane wrote: Dear Jason: In advance of our next meet and confer, below please find an inexhaustive statement of issues remaining with Plaintiffs’ responses to Defendant’s discovery requests. Clawback Request of July 16. Please confirm you have successfully deleted or destroyed all images, data, metadata, and copies of documents bearing numbers D015951-57 and D020505-10 from your records, clawed back any copies of such documents or data from any parties to whom it may have been sent, and removed from your system any information derived from these documents, as requested in my July 16 email to Melissa Fedornak. Per our correspondence, we agreed to maintain copies of these documents and will log them on our privilege log. Document Requests 1-4 and 7. As we have noted previously, these requests seek documents that go to the heart of the parties’ dispute in this matter. While you have retreated from your initial position that you would not produce documents already in Fiorello’s possession and confirmed you searched for documents naming the Fiorello shareholders (except for John Sullivan, whose email address was included in the list of search terms we provided you on July 2), we are still left wondering what if any documents responsive to these requests you are withholding. You told us your collection attempted to capture all documents concerning Fiorello or the LOI by searching such terms as “Fiorello,” “LOI,” and “Letter of Intent.” You did not, however, agree to produce all responsive, non-privileged documents identified by your collection. Instead, you have at various points agreed to produce documents that are “relevant to the claims and defenses at issue in this lawsuit,” (Responses to Requests 1, 2, & 3) or documents “responsive to one or more of the other, more specific Requests concerning the LOI” or “the transaction contemplated by the LOI” (Responses to Requests 4 & 7). https://mail.google.com/mail/u/1/?ik=dce3beaace&view=pt&search=all&permthid=thread-a%3Ar7194891390134088594%7Cmsg-a%3Ar-6301038317… 2/7 FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018 10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021 As an initial matter, you are not the arbiter of what is relevant to the claims and defenses in this lawsuit. These Requests seek documents and information concerning the central transaction in this case. As we stated during our July 8 meet and confer, Plaintiffs do not get to substitute their judgment for ours as to what is relevant or material. Your objections as to the relevance of discovery material are preserved. It is your obligation to produce material responsive to Defendant’s requests. Moreover, as we have stated, Defendant’s more specific Requests targeting certain provisions of the LOI or the transaction contemplated thereby were meant to be illustrative, not limiting. We believe all documents relating to the LOI or the transaction contemplated thereby are relevant in their totality. Indeed, it eludes us what, if any, documents responsive to Requests 1-4 and 7 would not be relevant or material in this case. Accordingly, please confirm you will produce all documents responsive to Requests 1-4 and 7 and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Requests 5, 6, & 37. These Requests seek documents or communications with or concerning Liberty Health Services (LHS) and Green Thumb Industries (GTI). You previously represented that your collection efforts attempted to capture all documents concerning Fiorello, the LOI, or the transaction contemplated by the LOI—including communications with or concerning third parties such as LHS and GTI—and would produce such information that is responsive to one of Defendant’s other Requests. That is only a partial response to these particular Requests, however. To address any concerns you may have as to scope, as part of an overall agreement with respect to discovery, we will agree to limit production responsive to these Requests to the period 11/1/17 through 4/30/18. With that limitation in mind, please confirm you will produce all documents responsive to Requests 5, 6, and 37 and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Requests 18-20. These Requests seek documents and information pertinent to evaluating Plaintiffs’ damages claims. Plaintiffs have agreed to produce documents “sufficient to show” their damages, without agreeing to provide the underlying bills or documents that we are entitled to parse and test. We maintain our right to the disclosure of documents sought in these Requests but, because we have yet to see what documents Plaintiffs are preparing to produce to evidence their damages, as part of an overall agreement with respect to discovery, we agree to table our objection to your limitation pending review of what you actually produce. Document Request 21. This Request seeks documents concerning the negotiation of the terms of any Definitive Agreement and/or the transaction contemplated by the LOI—again, a very basic request going to the heart of the parties’ dispute. This was a central discussion during our last meet and confer. While your Response to this Request stated you would not produce documents in response to this Request, you said during our last meet and confer that documents concerning the transaction contemplated by the LOI would be captured and produced in response to other Requests. That is only a partial response to this particular Request, however. Please confirm you will produce all documents responsive to Request 21 and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Requests 24-30, & 39. These Requests seek information relating to Cresco’s fundraising or borrowing efforts. We agreed during our last meet and confer to limit these requests to responsive documents relating to (a) expanding Plaintiffs’ business into New York, (b) concerning a medical marijuana license in New York, or (c) concerning Fiorello specifically. Please confirm your intent to produce documents responsive to these Requests, as narrowed during our last call and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. (We note, specifically, we have seen nothing in your productions as yet regarding Plaintiffs’ https://mail.google.com/mail/u/1/?ik=dce3beaace&view=pt&search=all&permthid=thread-a%3Ar7194891390134088594%7Cmsg-a%3Ar-6301038317… 3/7 FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018 10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021 communications with any regulatory body, and the DOH, in particular, regarding expansion, acquisition, or Fiorello, and we would like your confirmation you will produce such documents.) Additionally, we noted several documents from Plaintiffs’ productions comprising communications with unknown parties regarding efforts to secure investment, fundraising, and/or borrowing in apparent partial response to these Requests. These documents are redacted significantly on what appear to be non- privileged grounds. Specifically, the redactions appear to be focused principally on the sender and recipient information from emails—critical information, the absence of which, impedes Defendant’s ability to understand and properly contextualize the documents. As you are well aware, the parties’ productions are already protected by the Stipulation for the Production and Exchange of Confidential Information, awaiting order in this case, which provides for the protection of sensitive information of the highest order, including “trade secrets, proprietary business information, [and] competitively sensitive information....” Moreover, Plaintiffs’ apparently deliberate manipulation of the metadata accompanying these documents, to remove the sender, recipient, and other data, violates paragraph F.4. of the Stipulation and Order regarding Electronic Discovery in this case. There is simply no basis to withhold this information in violation of multiple orders in force in this case. Accordingly, we demand the immediate production of unredacted versions of all documents produced by Plaintiffs to date. Document Request 31. This Request seeks information concerning Plaintiffs’ communications with the media, which is directly relevant to Defendant’s counterclaims. Plaintiffs refused to produce documents in response to this Request. To address any concerns you may have as to scope, as part of an overall agreement with respect to discovery, we will agree to limit this request to documents relating to (a) expanding Plaintiffs’ business into New York, (b) concerning a medical marijuana license in New York, or (c) concerning Fiorello specifically. With that limitation in mind, please confirm you will produce all documents responsive to Request 31 and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Requests 33 & 34. These Requests seek documents and communications concerning Valley Agricueticals (Valley). To parallel Defendant’s agreement to produce documents relating to GTI, we are prepared, as part of an overall agreement with respect to discovery, to limit these Requests to (i) all responsive documents for the period 11/1/17 through 4/30/18 and (ii) for the period 5/1/18 through 5/31/19, limit production to (a) the final deal documents, including any amendments, with Valley, (b) communications with the DOH or concerning the DOH with respect to the Valley transaction, and (c) all documents bearing on the DOH’s approval (or non-approval) of the Valley transaction. With that limitation in mind, please confirm you will produce all documents responsive to Requests 33 and 34 and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Request 35. This Request seeks communications with anyone regarding expanding to the New York market. Plaintiffs refused to produce documents in response to this Request. To address any concerns you may have as to scope, as part of an overall agreement with respect to discovery, we will agree to limit this request to the period 11/1/17 through 4/30/18. With that limitation in mind, please confirm you will produce all documents responsive to Request 35 and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Request 38. This Request seeks information concerning Plaintiffs’ shareholders and/or members—parties that would have had to approve any deal contemplated by the LOI. Plaintiffs refused to https://mail.google.com/mail/u/1/?ik=dce3beaace&view=pt&search=all&permthid=thread-a%3Ar7194891390134088594%7Cmsg-a%3Ar-6301038317… 4/7 FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018 10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021 produce documents in response to this Request, while at the same time, demanding similar information for Defendant’s shareholders. We ask that you confirm you will produce all documents responsive to Request 38 and, if not, please articulate your basis for withholding such information. Document Request 40. This Request seeks all communications concerning Fiorello or Plaintiffs’ having operations in New York. We ask that you confirm documents responsive to this Request are being produced in response to one or more other Requests and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Requests 41 & 42. These Requests seek information and communications with Plaintiffs’ governing boards, shareholders, and/or members, including minutes or other documentation on matters on which they were asked to vote. To address any concerns you may have as to scope, as part of an overall agreement with respect to discovery, we will agree to limit production responsive to these Requests to the LOI, the transaction contemplated by the LOI, and/or Fiorello. As narrowed, Plaintiffs’ response to these Requests should fall within your responses to Requests 1-4 and 7. With the foregoing limitation in mind, please confirm your agreement to produce all documents responsive to Requests 41 and 42, and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Request 44. This Request seeks information concerning Plaintiffs’ alleged investigation into the John Does as alleged in paragraph 10 of the Amended Complaint. Plaintiffs refused to produce documents in response to this Request. It is difficult to imagine the basis on which Plaintiffs would refuse this Request. Defendant is entitled to know what information Plaintiffs base their allegations and, specifically, what information Plaintiffs believe evidences Defendant’s alleged breach of the LOI. Accordingly, please confirm your agreement to produce all documents responsive to Request 44, and, if not, please articulate your basis for withholding such information. Document Request 47. This Request seeks information concerning the allegations in paragraph 41 of the Amended Complaint, which is in two parts: one, that, Plaintiffs’ acquisition of another company in October 2018 was at a price greater than what Plaintiffs were prepared to pay in a deal with Defendant, and two, that “[t]he increased cost was a direct result of the significant increase in the value of medical cannabis companies with a New York license during the period when Cresco complied with its obligations under the No-Shop Provision.” Plaintiffs agreed to provide only documents sufficient to show the allegations set forth in paragraph 41. As to part one of the allegations — Plaintiffs’ statement its subsequent acquisition was at a greater price—we are, as part of an overall agreement as to the scope of discovery, prepared to accept the final, executed versions, of all deal documents pertaining to such acquisition—which mirrors Defendant’s agreement to produce its final deal documents with GTI. With that limitation in mind, please confirm your agreement to produce such deal documents and, if not, please articulate your basis for withholding such information. As to part two of the allegations, it is insufficient for Plaintiffs to produce only documents “sufficient to show” the cause(s) of the increase in price paid by Plaintiffs in its subsequent deal. We are entitled to a fulsome understanding of the basis for Plaintiffs’ allegation that the increased amount was owing to changes in circumstances based on the parties’ conduct. Please confirm your agreement to produce all documents responsive to Request 47, and, if not, please articulate your basis for withholding such information. Document Request 50. This Request seeks information concerning Plaintiffs’ efforts to enter the New York market during the period 3/30/18 through the present. Plaintiffs refused to produce documents in https://mail.google.com/mail/u/1/?ik=dce3beaace&view=pt&search=all&permthid=thread-a%3Ar7194891390134088594%7Cmsg-a%3Ar-6301038317… 5/7 FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018 10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021 response to this Request. As part of an overall agreement as to the scope of discovery, we are prepared to limit this Request to the period 3/30/18 to 4/30/18. With that limitation in mind, please confirm your agreement to produce all documents responsive to Request 50 and, if not, explain or describe what responsive documents Plaintiffs are withholding from production. Document Request 51. This Request seeks drafts and other materials relating to Plaintiffs’ IPO. Plaintiffs refused to produce documents in response to this Request. As part of an overall agreement as to the scope of discovery, we are prepared to limit this Request to the final IPO materials. Please confirm your agreement to produce Plaintiffs’ final IP documents, and, if not, please articulate your basis for withholding such information. Document Request 52. This Request seeks Plaintiffs’ annual, quarterly, and periodic financial information, which is directly relevant to Plaintiffs’ ability to consummate the transaction contemplated by the LOI and to representations Plaintiffs made in the LOI. Plaintiffs refused to produce documents in response to this Request. As part of an overall agreement as to the scope of discovery, we are prepared to limit this Request to the period 9/1/17 through 6/30/18. With that limitation in mind, please confirm your agreement to produce all documents responsive to Request 52 and, if not, please articulate your basis for withholding such information. Document Request 54. This Request seeks copies of all final, binding, contracts, agreements, and/or commitments with Valley. Plaintiffs agreed only to produce information sufficient to show they entered into a more expensive replacement transaction. As set out above, we asked for these documents as a compromise on certain other Requests and as part of an overall agreement with respect to the scope of discovery. Defendant’s request also parallels its commitment to produce final deal documents with GTI. Defendant is entitled to know the totality of the terms of the supposed replacement transaction, not merely documents sufficient to show the expense alleged. Financial terms are not the only relevant terms in evaluating a deal or its overall impact. Please confirm your agreement to produce the documents requested in this Request 54 and, if not, please articulate your basis for withholding such information. Interrogatories. For the reasons explained above and as further discussed during our prior meet and confer calls, Plaintiffs’ responses to interrogatories are deficient, including for example by their refusal to identify people: with knowledge of their efforts to expand into the New York market (Interrogatory 2); with knowledge of their contacts with the media (Interrogatory 3); with knowledge of their contacts with GTI (Interrogatory 7) and LHS (Interrogatory 8); third parties with whom Plaintiffs’ communicated concerning Fiorello (Interrogatory 9), including accountants, investors, bankers and government entities; and people outside of Cresco with knowledge of the accuracy of the representations and warranties in the LOI’s “financial” provision, such as Cresco’s accountants, auditors and bankers. Furthermore, as Plaintiffs’ have refused to provide names in response to these interrogatories, it is impossible for us to “sign off” on the proposed search terms. Any set of appropriate search terms must be include searches geared at capturing this information. Schedule. Finally, we received your proposed changes to the scheduling order and will be prepared to discuss on our call. We are concerned the proposed schedule will not permit us sufficient time to get through all the necessary depositions given the timing of the Jewish holidays beginning the end of September and stretching throughout October. https://mail.google.com/mail/u/1/?ik=dce3beaace&view=pt&search=all&permthid=thread-a%3Ar7194891390134088594%7Cmsg-a%3Ar-6301038317… 6/7 FILED: NEW YORK COUNTY CLERK 12/14/2021 11:15 PM INDEX NO. 652343/2018 10/25/21, 1:09 PM Izower Feldman, LLP Mail - Re: Cresco v. Fiorello NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 12/14/2021 Kind regards, Arielle Kane, Esq. 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