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29.1
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
ELIZABETH GRADY FACE FIRST INC.
d/b/a THE ELIZABETH GRADY
COMPANY,
CIVIL ACTION NO. 2081-CV-02967
Plaintiff,
Vv.
RECEIVED
CYNOSURE, INC., and
KEVIN THORNAL, 9/8/2021
Defendants.
NON-PARTY HOLOGIC INC.’S AND DEFENDANT KEVIN THORNAL’S
MEMORANDUM IN SUPPORT OF MOTION FOR PROTECTIVE ORDER AND/OR
TO QUASH SUBPOENAS
Although Hologic Inc. (“Hologic”) and its financial advisor, Goldman Sachs & Co., LLC
(“Goldman”) are not parties to this case and are not alleged to have made any of the 2018
statements upon which Elizabeth Grady Face First Inc. (“Elizabeth Grady”) bases its claims,
Elizabeth Grady claims to have served two subpoenas (the “Subpoenas”) upon Goldman seeking
information related to Hologic’s sale of its stake in Cynosure in November 2019.' At best, the
! Whether Goldman, which is based in New York, must comply with a Massachusetts state court
subpoena is a disputed issue. Goldman objected to the Subpoenas on a number of grounds,
including ineffective service upon a New York entity. According to its objection, it is
Goldman’s position that a valid subpoena can only issue from a New York court. This Motion is
served out of an abundance of caution, based upon the assumption that this Court has jurisdiction
over Goldman.
Subpoenas are a fishing expedition; at worst, they are harassing. In any event, they are improper
and should be quashed.
Based on the allegations contained in Elizabeth Grady’s First Amended Complaint, the
critical issue in this case is whether Cynosure told Elizabeth Grady the truth about Cynosure’s own
business in December 2018. Elizabeth Grady can and will get from Cynosure information about
Cynosure’s business and the truthfulness of Cynosure’s representations to Elizabeth Grady. But
the Subpoenas are directed at what strangers to those conversations -- Hologic and Goldman --
believed about Cynosure’s business well after December 2018. Since Elizabeth Grady has not
alleged that Hologic or Goldman made any representations (let alone misrepresentations), their
assessment(s) of Cynosure’s business is wholly irrelevant.
In short, the Subpoenas seek information that is irrelevant, as well as confidential and
proprietary. Hologic and Thornal (who now works at Hologic) therefore seek a protective order
pursuant to Mass. R. Civ. P. 26(c) denying the discovery sought in the Subpoenas and/or an order
quashing the Subpoenas pursuant to Mass. R. Civ. P. 45(f).
RELEVANT BACKGROUND
Elizabeth Grady’s First Amended Complaint (“FAC”) alleges that on December 3, 2018,
a group of Cynosure representatives made a presentation to Elizabeth Grady management (FAC
at §{ 17, 18), which included information about Cynosure products, revenue projections, and an
example of a marketing campaign. (Id. at § 23.) Elizabeth Grady alleges that, thereafter, Cynosure
pledged that it “would be the driving force to bring in new business, 29 6, ‘would create custom
advertisements,” and “would use its national brand recognition and marketing experience to drive
anew customer base through Elizabeth Grady’s doors.” (Id. at 25.) Elizabeth Grady also alleges
that “Cynosure” agreed that “it would promote” Elizabeth Grady beauty products and make
Elizabeth Grady “Cynosure’s vendor of choice” for ancillary beauty products. (Id. at § 32.) On
January 10, 2019, Elizabeth Grady signed a Lease Agreement with Cynosure. (Id. 934.) Neither
Hologic nor Goldman is a party to the Lease Agreement. Goldman was retained by Hologic (not
Cynosure) well after the Lease Agreement was signed.
Critically, Elizabeth Grady does not allege that Cynosure’s majority shareholder, Hologic,
made any commitments or representations. Rather, it alleges is that “upon information and belief,”
while the negotiations were being conducted, “Hologic was in the course of deciding to divest
itself of the Cynosure business and was making an effort to minimize its losses...” (FAC § 33.)
Eleven months after Cynosure’s alleged misrepresentations, in November 2019, Hologic
announced that it intended to sell its stake in Cynosure. (FAC § 44.) Elizabeth Grady claims that
the relatively low sale price “confirms that Cynosure and [its former president, Kevin Thornal,]
were well aware that the sales data shown to Elizabeth Grady at the December 3, 2018 meeting
was false and that Elizabeth Grady would never realize those projected revenues.” (Id. at { 44.)
The complaint wholly fails to explain what, if anything, Hologic’s 2019 negotiated sale price for
? After the Lease Agreement was signed, according to Elizabeth Grady, Cynosure did not provide
an acceptable “digital marketing campaign,” (FAC 38) or public relations support (id. at § 39)
and did not make Elizabeth Grady a “vendor of choice.” (Id. at ]41.) Asa result, Elizabeth Grady
alleges that it suffered various types of indirect and consequential damages. (Id. at J 46.)
3 As Thornal and Cynosure’s pending motions to dismiss papers make clear, whether or not
Hologic was considering to divest itself of Cynosure is irrelevant to whether Cynosure’s
representations to Elizabeth Grady were true when made and cannot form the basis of any
misrepresentation claim
the entire Cynosure enterprise has to do with December 2018 sales projections related to two
devices.*
THE SUBPOENAS
Copies of the Subpoenas are attached as Exhibits A and B. The first, dated June 22,
2021, seeks, among other things:
“All documents that identify the date on which Goldman was first contacted to
provide advice and/or services in connection with Hologic’s anticipated sale of its
Cynosure business.”
“All agreements with respect to the sale of Cynosure, including any investor
advisory agreement involving Goldman.”
“Copies of any prospectus, offering material, brochures, pamphlets or similar
documents that Goldman prepared in connection with Hologic’s sale or anticipated
sale of its Cynosure business.”
The second, dated August 9, 2021, seeks: “All communications between Goldman and
Kevin Thornal regarding Hologic’s sale, anticipated sale, restructuring, and/or any other
disposition of its Cynosure business.”
Thornal and Hologic objected to the Subpoenas, but in conferences with plaintiff's counsel,
agreed to withdraw the objections if the Subpoenas were narrowed to request: (a) documents that
referenced Elizabeth Grady; and (b) statements by Thornal about Cynosure’s business. Counsel
for Elizabeth Grady declined the offer and insisted that Elizabeth Grady was particularly interested
in any analyses or advice provided by Goldman—a third-party investment banker that had no
4 Elizabeth Grady does not allege that Hologic’s later divestiture affected Cynosure. Elizabeth
Grady also does not allege that Cynosure ever promised that Hologic would always own Cynosure.
Cynosure remains a viable entity, and the Lease Agreement remains in place.
involvement whatsoever in Cynosure’s business at the time that the allegedly actionable
representations were made by Cynosure and Thornal.
ARGUMENT
1. Hologic and Thornal have Standing to Quash the Subpoenas.
Massachusetts Rule of Civil Procedure 45 provides that, “[a] party or attorney responsible
for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or
expense on a person subject to the subpoen: and that the court may upon a timely motion “quash
or modify the subpoena if it is unreasonable and oppressive.” Mass. R. Civ. P. 45(b). Although
Hologic and Goldman are non-parties to the case, Hologic has standing to move to quash the
subpoena directed to Goldman. After all, “[a] non-party may have standing to move to quash a
subpoena directed to another non-party that calls for production of documents to which the moving
non-party has ownership rights or a property interest.” 49 Peter M. Lauriat et al., Massachusetts
Practice Series, Discovery § 6:4 (2021). See also Bos. Restoration Res., Inc. v. Lorenzo Pitts, Inc.,
No. 17-1142-C, 2018 WL 1364764, at *1 (Mass. Super. Mar. 16, 2018) (“A party has standing to
quash a subpoena served on a non-party if he or she has a personal right or privilege with respect
to the requested information.” (alteration omitted) (quoting Energy Power (Shenzhen) Co. Ltd. v.
Xiaolong Wang, 2014 WL 2048416, at *2 n.4 (D. Mass. May 6, 2014))). “The personal right or
privilege claimed need not be weighty: parties need only have ‘some personal right or privilege in
the information sought’ to have standing to challenge a subpoena to a third party.” SEC v.
Nav ellier & Assocs., Inc., No. 17-cv-11633, 2019 WL 688164, at *2 (D. Mass. Feb. 19, 2019)
(emphasis in original) (quoting Degrandis v. Children’s Hosp. Bos., 203 F. Supp. 3d 193, 198 (D.
Mass. 2016)).
The Subpoenas seek private and confidential advice Goldman provided to Hologic and
materials Goldman prepared in anticipation of the sale. Accordingly, Cynosure has, at the very
least, “some personal right or privilege in that the information sought.” See, e.g., Enargy Power,
2014 WL 2048416, at *2 n.4 (“Bank customers have a personal right with respect to their bank
account records.”); Reliastar Life Ins. Co. v. Warrior, No. CIV.A. 06-2486CM-DJW, 2007 WL
2669558, at *4 (D. Kan. Sep. 7, 2007) (concluding that individual “does have a personal right, as
the investigative file [sought in a subpoena directed to the district attorney] contains information
pertaining to the alleged murder of [the individual’s] husband”). Accordingly, Hologic and
Thornal have standing to challenge the Subpoenas.
2. The Subpoenas Seek Documents that are Irrelevant.
This case is based on the vague assertion that in December 2018, Cynosure officials,
including Thornal, overstated the benefits that Elizabeth Grady might achieve if Elizabeth Grady
installed two of Cynosure’s medical devices in twenty-four Elizabeth Grady spas. Elizabeth Grady
does not allege that those Cynosure officials made any representations or said anything specific
about Hologic. Nor does Elizabeth Grady allege that Hologic or Goldman ever provided any
information to Elizabeth Grady.
Nearly a year after Cynosure made the allegedly false statements, in November 2019,
Hologic (with Goldman’s help) sold its controlling interest in Cynosure for $205 million, a price
that was lower than what Hologic paid for Cynosure in 2017. Elizabeth Grady posits that the
November 2019 sale price negotiated by Hologic and Goldman somehow demonstrates that
Cynosure’s December 2018 statements were untrue.
There is no logic whatsoever to that contention. And in any event, it does not justify the
far-reaching Subpoenas. For one thing, of course, the alleged misrepresentations were made by
6
Cynosure, not Hologic or Goldman. See, e.g., Lewis PR v. Murphy, No. SUCV20182489BLS1,
2019 WL 1320369, at *1 (Mass. Super. Feb. 27, 2019) (cautioning that “[fJiling a complaint does
not provide a party with license to inspect all of a person’s private communications with others for
a 20-month period in hopes that it will produce some information that might be of use in a civil
law suit” and explaining that demand can be made only where there is “good cause to believe that
such communications would be evidence of a violation” alleged); Finnerty v. Stiefel Lab'ys, Inc.
No. 09-21871-CV, 2011 WL 5842799, at *3 (S.D. Fla. Nov. 21, 2011) (explaining that “Plaintiff's
proposed evidence relating to non-parties’ individual investment decisions, non-parties' personal
beliefs and opinions, nonparties' conversations to which Finnerty was not a party and in which
Finnerty was not discussed . . . is simply not relevant to Finnerty's claims” focusing on whether
material misrepresentations or omissions were made to Finnerty).
For another, the allegedly actionable statements related to a very small transaction
(Elizbeth Grady was leasing two machines for twenty-four spas), while the November 2019 sale
related to an enterprise that offered more than twenty products, installed in thousands of locations
throughout the world. Hologic’s sale of Cynosure for $205 million hardly demonstrates that
Cynosure officials somehow knew that there was no demand for the two devices it was leasing to
Elizabeth Grady.
And of course, there is the issue of timing. Whatever Goldman and Hologic said or did
leading to the November 2019 sale hardy bears on the truthfulness of Cynosure’s 2018 statements.
In sum, the Subpoenas seeks plainly irrelevant documents and must therefore be quashed.
See Cipolleta v. Sharp, No. CIV. A. 98-5947-A, 2001 WL 914526, at *2 (Mass. Super. Aug. 13,
2001) (“The subpoena is not limited in scope to matters that are relevant to the subject matter
involved in the pending action or information that is reasonably calculated to lead to the discovery
7
of admissible evidence. Mass. R. Civ. P. 26(b)(1). On this basis alone, [the defendant’s] motion
to compel production of documents by the [non-party] must be denied.”).
3. To The Extent that the Subpoenas Seek Relevant Information, Elizabeth
Grady Can Get the Information from the Parties, Without Invading the
Hologic-Goldman Relationship.
Elizabeth Grady may argue that it served the Subpoenas in order to ascertain information
about Cynosure’s business that will help demonstrate whether the 2018 statements about
Cynosure’s business were true. If that is so, there are far less intrusive (and costly) ways for
Elizabeth Grady to obtain that information. Elizabeth Grady can and should request historical
sales figures and 2018 projections from Cynosure, at least in the first instance.
4. The Subpoenas Seek Documents that Are Proprietary.
Finally, the Subpoenas should be quashed because they seek competitive business advice.
Goldman advised Hologic (not Cynosure) about the sale of a women’s esthetic business, potential
buyers, and perhaps, industry information. These are all issues that have nothing to do with this
case, but they are matters that Elizabeth Grady is very interested in for competitive reasons. To
address this, Hologic offered to withdraw its objections if counsel for Elizabeth Grady would agree
to focus the Subpoena on actual references to the Cynosure-Elizabeth Grady Lease Agreement,
and not general market issues. But counsel for Elizabeth Grady has made it clear that Elizabeth
Grady is not interested in targeted discovery. Elizabeth Grady wants to know what Goldman
thought about the value of Cynosure’s business and the industry in general. That is advice that
Hologic paid for, and Elizabeth Grady should not have the benefit of it.
CONCLUSION
The Subpoenas seek information from non-parties that is plainly irrelevant to the case.
Moreover, that information is confidential and proprietary. For the reasons laid out above,
Hologic and Thornal request that the Court grant this motion for a protective order and/or to
quash Elizabeth Grady’s Subpoenas to Goldman.
HOLOGIC, INC. and KEVIN THORNAL
By their attorneys,
UA PT,
Peter E. Gelhaar,‘BBO # 188310
Daniel P. Tighe, BBO # 556583
DONNELLY, CONROY & GELHAAR, LLP
260 Franklin Street, Suite 1600
Boston, MA 02110
617-720-2880
AUGUST 19, 2021
CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the foregoing pleading to be served on the following
counsel by first class mail and email on August 19, 2021:
William A. Zucker, Esq. Daniel S. Pariser, Esq. Michael Pineault, Esq.
Nicholas W. Allen, Esq. Jocelyn A. Wiesner, Esq. Anderson & Kreiger LLP
McCarter & English, LLP Arnold & Porter 50 Milk Street, 21st Floor
265 Franklin Street 601 Massachusetts Ave. N.W. Boston, MA 02109
Boston, MA 02110-3113 Washington, DC 20001-3743
kere
Daniel P. Tighe ¥
10
EXHIBIT A
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. Superior Court Department
Of The Trial Court
ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,
Plaintiff,
Vv, C. A. No, 2018-CV-02967
CYNOSURE, INC. and
KEVIN THORNAL,
Defendants.
SUBPOENA DUCES TECUM
To: Goldman Sachs & Co., LLC
c/o Keeper of Records
CT Corporation System, its Registered Agent
155 Federal St., Suite 700
Boston, MA 02110
YOU ARE HEREBY COMMANDED, by the authority of the Commonwealth of
Massachusetts, in accordance with the provisions of Rule 45(d) of the Massachusetts Rules of
Civil Procedure, to produce documents set forth in the attached Exhibit A, to Nicholas Allen,
counsel for plaintiff Elizabeth Grady Face First, Inc., d/b/a The Elizabeth Grady Company, at the
offices of McCarter & English LLP, 265 Franklin Street, Boston, MA 02110 on or before July 9,
2021. HEREOF FAIL NOT as you will answer your default under the pains and penalties in the
law in that behalf made and provided.
>)
“2-9 te
Nicholas W. Allen (BBO #663409) Dated: June 16, 2021
McCarter & English, LLP o
265 Franklin St. G
£bi ‘
Boston, MA 02110 Notary Public
(617) 449-6500 My Commission expires +20
» DIANE M. MONTEIRO
Notary Public
COMMONWEALTH OF MASSACHUSETTS:
My Commission Expires
June 8, 2023
RETURN OF SERVICE
I this day summoned the within named
to appear as within directed by delivering to
in hand, - leaving at last and usual
place of
abode, to wit: No.
Street,
in the _ District of said an
attested
copy of the subpoena together with __ ns __ fees for attendance and travel
Service and
Travel
Server
Cop.
Pd. Witness It being necessary I actually used a motor
Motor vehicle vehicle the distance of. miles in the
service of this process
Server
Subscribed and SWOrn to before me
This day of 20
Notary Public
EXHIBIT A
To Subpoena Directed to Keeper of Records of Goldman Sachs & Co., LEC
INSTRUCTIONS
1 Please produce the requested documents identified below to counsel for plaintiff,
identified herein, on or before July 9, 2021. Documents produced pursuant to this Subpoena may
be delivered in hard copy to plaintiff's counsel at McCarter & English, 265 Franklin St., Boston
MA, 02110, or via electronic mail, to nallen@mccarter.com.
2 Please include with your production a Keeper of Records declaration or affidavit,
taken before a clerk of a court of record or notary public, under the seal of such court or notary,
stating that the affiant is the officer having charge of the original records, books and accounts, and
that the copy is correct and is full so far as it relates to the subject matter therein mentioned.
3 Discovery in this case is governed by a certain Stipulated Protective Order, dated
June 7, 2021, and endorsed by the Court on June 8, 2021. A copy of the Protective Order is
attached hereto at Exhibit B.
4 These document requests relate to Goldman Sachs & Co., LLC’s (“Goldman”)
involvement in a December 30, 2019 sale by Hologic, Inc. (“Hologic”), of Cynosure, LLC and/or
its Cynosure division/business (“Cynosure”), to Clayton, Dubilier & Rice and/or Lotus Buyer, Inc.
DOCUMENT REQUESTS
1 All documents that identify the date on which Goldman was first contacted to
provide advice and/or services in connection with Hologic’s sale or anticipated sale of its Cynosure
business.
2. All agreements with respect to the sale of Cynosure, including any investor
advisory agreement involving Goldman.
3 Copies of any prospectus, offering material, brochures, pamphlets or similar
documents that Goldman prepared in connection with Hologic’s sale or anticipated sale of its
Cynosure business.
4 All documents identifying or containing a list of potential buyers that received from
Goldman any prospectus, brochure, pamphlet or similar document related to the anticipated sale
of Cynosure.
5 All due diligence documents or communications containing information related to
Cynosure and which were provided to any potential buyer.
6 Copies of all bids or purchase offers for the Cynosure business received by
Goldman.
7. All documents concerning, evidencing, referencing or relating to Goldman’s
analysis of the potential and/or actual sales price for the Cynosure business, and/or Goldman’s
valuation of the Cynosure business, including but not limited to any fairness opinion or equivalent
provided by Goldman.
8 All documents concerning, evidencing, referencing or relating to Goldman’s
analysis of any bids or purchase offers received for the Cynosure business.
9. All documents concerning, evidencing, referencing or relating to any advice
provided by Goldman to Hologic regarding the sales price and/or purchase offers received for the
Cynosure business.
EXHIBIT B
ey
dd 5
eo
COMMON WEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
on
ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,
Plaintiff, CIVIL ACTION NO. 2081-CV-02967
v
CYNOSURE, INC., and
KEVIN THORNAL,
Defendants,
~
STIPULATED [PROPOSED] PROTECTIVE ORDER
Pursuant to Mass. R. Civ. P. 26(c) and 26(f), the parties to the above-styled action (“the
Action”), through their respective counsel, agree to the terms and conditions of this Stipulated
Protective Order. This Order shall govern the production and handling of documents, items, or
other information exchanged by the parties or non-parties in the Action (including, without
limitation, responses to interrogatories, requests for admissions, pleadings, exhibits, and
depositions or other testimony), regardless of the medium or manner in which any such materials
are generated, stored, or maintained. This includes any material produced, filed, or served by
any party or non-party during discovery in this Action (defined as the above entitled proceeding).
The Court, finding that good cause exists for entry of a protective order in the Action to
prevent unauthorized disclosure of confidential information during and after the course of the
litigation, hereby ORDERS as follows:
1 Materials Covered. Any party or other person, including non-party recipients of
discovery requests/subpoenas, may designate all or any part of a document, discovery response,
deposition, or other material which that party or person produces, serves, or provides in
connection with this Action as “Confidential Material” (also referred to as “Protected Material”)
as described below.
a. “Confidential Material” shall mean material that the party or non-party
producing the materia! or designating material as “Confidential” (the “Designating
Party”) believes in good faith deserves protection under Mass. R. Civ. P, 26(c)(7), This
includes, without limitation, confidential non-public research or analysis, development,
internal communications, personal or commercial information used or obtained by a party
in their business that is not publicly known and would not normally be disclosed to third
parties and, if disclosed, would require third parties to maintain it in confidence, and any
other information for which a good faith claim of need of protection can be made under
the Massachusetts Rules of Civil Procedure and/or applicable Massachusetts law.
b. Any document produced by a party or non-party in this litigation may be
designated as Confidential Material by marking it "CONFIDENTIAL: SUBJECT TO.
PROTECTIVE ORDER” on the face of the document at or prior to the time of
production. A party or non-party may designate natively produced electronic documents
and other non-imaged media as “Confidential Material” as appropriate, by noting such
designation in an accompanying cover letter and including the appropriate confidentiality
designation in the load file provided with the electronic production.
c. Testimony provided in this litigation may be designated as Confidential
Material by any party or non-party if the testimony concerns or retates to that party's or
non-party’s Confidential Material, subject to the Paragraphs below. The person desiring
to designate any portion of testimony as Confidential Material shall do so by so stating
orally on the record on the day that the testimony is being given, either personally or
through counsel. {f any party makes such an oral designation, the confidential portions of
the deposition shall be taken only in the presence of persons entitled to access to such
information under this Order. Additionally, any party or non-party may designate any or
all portions of the transcript and/or video of any deposition (or of any other testimony) as
containing Confidential Material in accordance with this Order by notifying all other
parties in writing, within 20 days of receipt of the final, official (non-draft) transcript
and/or video, that it contains Confidential Material and designating the specific pages
and/or lines as containing Confidential Material. All transcripts and/or videos shall be
treated as Confidential Material and subject to this Protective Order until a time 20 days
after a final, official (non-draft) transcript or video of the deposition (or other testimony)
are received, if no designation is made prior to that time. Any inadvertent failure to
designate transcripts and/or videos within the 20 day time period may be addressed under
Section 8 of this Protective Order. If practicable, the reporter shall bind the confidential
testimony in separate volumes and mark the face of the transcript to indicate its
confidential nature and production pursuant to this Protective Order. Any video cassettes
(or other storage media) containing Confidential testimony shall be so designated in
accordance with the provisions of this Protective Order.
2. Use of Materials and Declaration.
a. All materials produced in discovery, including, but not limited to, those
which are designated Confidential, shall be used solely in furtherance of the prosecution,
defense, or attempted settlement of this Action, shall not be used at any time for any other
purpose whatsoever, and shall not be disclosed to or made accessible to any person
except as specifically permitted by this Order. All materials designated as Confidential
must be stored and maintained by the party receiving the material (the “Receiving Party”)
in a manner no less secure than a Receiving Party would store and maintain its own
confidential material or that of its clients. Upon conclusion of this Action, a Receiving
Party must comply with the provisions of Paragraph 6 below regarding return or
destruction of Confidential Material,
b. Each person to whom Confidential Material is disclosed shall execute a
Declaration in the form annexed hereto as Exhibit A, and shall agree to be bound by this
Order, before receiving Confidential Material, except to the extent such execution is not
required in Paragraph 3 below.
¢. Notwithstanding any contrary provision in this Order, a party is permitted to
disclose Confidential Material to the extent required by a valid subpoena or other valid
legal process, provided that the procedures in this paragraph are followed. The party that
has received a valid subpoena or other valid legal process (the “Subpoenaed Party”) must
provide the Designating Party with written notice of such subpoena or other legal process,
via electronic mail/PDF, or hand delivery, within three (3) business days of receiving the
subpoena or a lesser period if ordered by the Court (“the Response Period”), in order to
afford the Designating Party an opportunity to object. The Subpoenaed Party shall also
inform the persons seeking discovery in writing (with copy to the Designating Party) that
providing the information may be a violation of this Protective Order. A fter receipt of the
notices specified by this paragraph, the Designating Party seeking to maintain the
confidentiality of any information shall have the sole responsibility for obtaining any order
it believes necessary to prevent disclosure of the information that has been subpoenaed or
requested. If the Designating Party does not move for a protective order within fourteen
(14) days (or within such times as a court may direct or as may be agreed upon with the
subpoenaing/requesting party) and give written notice of such motion to the Subpoenaed
Party, the Subpoenaed Party may commence production in response to the subpoena or
request. The Subpoenaed Party will not produce any of the Confidential Material while a
motion for a protective order brought by the Designating Party pursuant to this paragraph
is pending, or while an appeal from or request for appellate review of such motion is
pending unless a court orders production of material that is subject to this Order. In such
case, production of such materials pursuant to that Court Order shall not be deemed a
violation of this Order. Atno time shall the Subpoenaed Party take a position concerning
the propriety of a subpoena or other legal process as it relates to a Designating Party's
Confidential Material. Finally, nothing herein shall be construed as requiring the
Subpoenaed Party to subject itselfto any penalties for non-compliance with any
subpoena, access request, or legal process or to seek any relief from the Court.
3 Disclosure of “ nfidential” Mater Unless otherwise ordered by the Court
or permitted in writing by the Designating Party, disclosure of “Confidential” materials may be
made only to:
a. the Court, its secretaries, clerks, law clerks and other support staff in the
manner set forth herein;
b. altorneys for a party who are working on the Action and employed or
retained support staff, secretaries, paralegals, legal assistants, and support services
(including, without limitation, copy services, litigation consultants, document
management services and graphics services) (this category hereinafter referred to as
“Attorneys”). Attorneys shall include in-house counsel actively involved in the
prosecution or defense of the Action (“In-House Counsel”);
€. court reporters, court videographers, and similar transcription services and
their support staff (this category hereinafter referred to as “Court Reporters”);
d any expert or consultant (including all non-party personnel and support
staff assisting such expert or consultant, but not the entity itself by which such expert or
consultant and assisting personnel are employed) who is retained by or for the benefit of
any of the parties in the Action to assist counsel in the Action (this category hereinafter
referred to as “Experts”), provided that the expert or consultant has executed a
Declaration in the form annexed hereto as Exhibit A;
&. any mediators engaged by the parties, and their support staff,
f. any person who Attorneys have a good-faith basis to believe authored or
previously received the material or the information contained therein;
8 any person who is an employee of a party to this Action, or a former
employee of the Designating Party (if they were employed by the Designating Party
when the material was created or if they had an authorized right of access to the
document in the ordinary course of that employment),
h any person who has been designated as a Rule 30(b)(6) witness by the
Designating Party; and
i during the conduct of their depositions, witnesses in the Action for whom
Attorneys have a good-faith basis to believe disclosure is reasonably necessary and who
have signed a Declaration in the form annexed hereto as Exhibit A and agreed to be
bound by this Order unless disclosure is permissible pursuant to 3(f) above.
4 Requests to Disclose Confidential Materials. [fa party seeking to disclose
Confidential Material to a person not authorized access to such documents pursuant to Paragraph
3 above provides counsel for the Designating Party with advance written notice, via electronic
mail/PDF, or hand delivery, at least three business days before disclosure, that states the identity
of the material for which disclosure is sought and the identity of the witness to whom disclosure
would be made, counsel for the Designating Party may challenge the proposed disclosure of
material pursuant to this provision, by providing counsel for the party seeking disclosure with a
written objection, via electronic mail/PDF or hand delivery, within two business days thereafter.
if a written objection is made, the party seeking disclosure shall not proceed with disclosure
unless authorized to do so pursuant to the procedures described in Paragraph 5 below.
5 Challenges to Designations.
Any party wishing to challenge the “Confidential” designation assigned by another party
or other person (“Objecting Party”) with respect to any material shall give notice by email or
other written communication of such objection to counsel for the Designating Party. Within ten
(10) days of receipt of written notice of the designation challenge, the Designating Party shall
meet and confer with the Objecting Party to attempt to resolve the designation dispute. If no
resolution is reached, the Objecting Party may move the Court for an order removing such
Protected Material from the restrictions of this Protective Order, and any papers filed in support
ofor in opposition to said motion shall, to the extent necessary, be filed with a request that they
be impounded for good cause shown as ordered by the Court in order to preserve the claimed
confidentiality of the material. Upon the filing of such a motion, the burden rests upon the
Designating Party to demonstrate the propriety of such designation. Until the parties or the
Court resolves a challenge to the designation of “Confidential” material, the original designation
shall remain in full force and effect.
6 Handling of Confidential Materials, All material designated “Confidential”
shall remain in the possession of the Attomeys of record to whom such material is produced
subject to the disclosure {imitations set forth in paragraph 3 above. Persons who have been
shown material designated “Confidential” pursuant to this Protective Order and have not
otherwise obtained or maintained the material in the normal course of business shall not retain
copies of such Protected Material: Within sixty (60) days after such time as the Action is
concluded, whether by final adjudication on the merits from which there remains no right of
appeal, or by other means, any party or person producing “Confidential” material may require
the return or destruction of all materials and copies thereof containing “Confidential”
information (including but not limited to copies in the possession or control of any Expert or
employee), and all reasonable costs of such return shall be borne by the party requesting such
return. Unless the Designating Party provides notice of a return requirement within the sixty-day
period specified above, or unless otherwise ordered, each Receiving Party shall undertake
commercially reasonable efforts to destroy all such materiat and certify in writing to the
Designating Party that all such material has been destroyed to the extent practicable. As to those
materials that contain, reflect, incorporate, attach, or reference attorney work product, counsel of
record for the parties shall be entitled, without violating this Protective Order, to retain such
work product in their files, so long the terms of this Protective Order will continue to govern any
such retained materials. In addition, counsel shall be entitled, without violating this Protective
Order, to retain pleadings, affidavits, motions, briefs, expert reports (and exhibits thereto),
correspondence (including internal correspondence and e-mail), any other papers filed with the
Court (including exhibits), deposition transcripts, and the trial record (including exhibits) even if
such materials contain Confidential Material, so long as this Protective Order will continue to
govern any such retained materials. The Receiving Party’s reasonable efforts shall not require
the return or destruction of materials that (a) are stored on backup storage media made in
accordance with regular data backup procedures for disaster recovery purposes; (b) are located-in
the email archive system or archived electronic files-of departed employees; or (c) are subject to
legal hold obligations. Backup storage media need not be restored for purpose of returning or
certifying destruction of materials, but any such materials retained in backup storage media shall
continue to be treated in accordance with this Protective Order.
7 Inadvertent Production of Privileged Documents. Pursuant to Mass. R. Civ. P.
26(b)(5)(B), the parties agree that the inadvertent disclosure or production of any documents and
ESI (“Inadvertently Produced Privileged Document”) in this case shall be without prejudice to
and shall not, in itself, waive for purposes of this case or otherwise, any attorney-client privilege
ot work product protection that otherwise would apply, except that:
a affirmative use of ESI or a document by the producing party in the case
waives privilege and protection with respect to it, and of other ESI and documents; and
b upon use in the case by a party other than the producing party of ESt or a
document that was produced by a party, that producing party must promptly assert any
claimed privilege and/or protection over it and provide notice to the party other than the
producing party.
Alternatively, in the event that a Receiving Party discovers a document that they believe
to be an Inadvertently Produced Privileged Document, the Receiving Party will promptly notify
the producing party of what it believes to be the inadvertently Produced Privileged Document
(no receiving party will be found in violation of this Order for failing to initially identify an
Inadvertently Produced Privileged Document). After discovering or being notified of an
Inadvertently Produced Privileged Document, any Receiving Party must not use or disclose the
document in any way until the claim is resolved and must take reasonable steps to retrieve the
document if the party disclosed it before being notified of or discovering the inadvertent
production, In addition, within fourteen days of discovering or being notified of the claim of
privilege, the Receiving Party must comply with Mass. R. Civ. P. 26(b)(5)(B). Ifa party moves
the Court for a determination of the claim, such party may not assert as a ground for finding no
privilege the mere fact of inadvertent production but it shall be the Designating Party’s burden to
prove privilege.
8 Inadvertent Failure te Designate. In the event that a confidential document,
paper, or thing is produced without having been previously marked “Confidential”, the party in
receipt of that material shall, upon a written request from the Designating Party or person, treat
and preserve such document, paper, or thing in accordance with the confidentiality designation
that the Designating Party states should have been affixed to it. The Designating Party must then
re-produce the document, paper, or thing with the appropriate confidentiality designation. The
Receiving Party will then replace the incorrectly designated materials with the newly designated
materials and will destroy the incorrectly designated materials. The inadvertent failure of a party
or person to designate a document as “Confidential” at the time of production shall not be
deemed a waiver of the protections afforded by this Order, either as to specific information in the
document or as to any other information relating thereto or on the same or related subject matter.
No party shail be deemed to have violated this Stipulated Protective Order if, prior to notification
10
of any later designation, such material has been disclosed or used in a manner inconsistent with
the later designation. Once a designation is made, however, the relevant documents or materials
shall be treated as “Confidential” in accordance with this Protective Order. If material
inadvertently not designated is, at the time of the later designation, already filed with a court on
the public record, the party or person that failed to make the designation shall move for
appropriate relief.
9 Inadvertent Disclosure of Material by Receiving Party. [fa party receiving
“Confidential” materials learns that, by inadvertence or otherwise, it has disclosed the protected
material to any person or in any circumstance not authorized under this Order, the Receiving
Party must, as soon as is practicable: (a) notify in writing the Designating Party of the
unauthorized disclosure; (b) use reasonable efforts to retrieve all copies of the protected
materials; and (c) inform the person or persons to whom unauthorized disclosures were made, to
the extent the person or persons are identifiable, that the disclosed material is Confidential and, if
the person or persons are not permitted access pursuant to Paragraph 3, request that such persons
execute a Declaration in the form annexed hereto as Exhibit A.
10. Obligations to Non-Parties. If information sought in a discovery request is
implicated by a Party’s obligation to a non-party not to disclose such information, the Party shall:
a. Timely serve a written objection to the production of such information on
the basis of its obligation to a non-party not to disclose the information;
b Within seven days of receiving the discovery request provide the non-
party written notice of the pending request and a copy of this Order; and
¢.o Ifthe non-party does not object to the disclosure of information within
twenty-one days from which the written notice of the pending request was sent by the
{1
Party, the Party shall produce the materials (subject to any appropriate designations under
the terms of this Order); or
d If the non-party does object to the disclosure of information, the Party
shall within ten (10) days of the non-party's objection either (A) produce the materials
(subject to any appropriate designations under the terms of this Order or stipulated
between the Parties to the Action) or (B) file an appropriate motion (¢.g., to quash or for a
protective order) for relief from the Court but this provision shall not confer additional
standing on the objecting party to assert a non-party’s claim.
e. Notwithstanding the foregoing, nothing in this Paragraph shal! be deemed
to prohibit, hinder or otherwise affect any party’s right to raise any permissible other
objection to a request for discovery as permitted by the Massachusetts Rules of Civil
Procedure.
il, Information from Non-Party Sources. To the extent that any discovery
requests are served on a non-party, the party serving the discovery request(s) shall, at the time of
service, provide the non-party with a copy of this Protective Order and the terms of this
Protective Order shall govern the discovery from a non-party.
12. Use in Court Proceedings. Nothing contained in this Stipulated Protective Order
shail be construed to prejudice any party’s right to use at trial or in any hearing before the Court
any “Confidential” material, or any party's right to challenge any such use. The parties reserve
the right to seek additional relief from the Court with respect to “Confidential” material that may
be presented at trial or in any hearing before the Court. “Confidential” material shall not lose its
designated status through its mere use at trial or in any hearing before the Court; however, use or
disclosure of Confidential Material by the Designating Party in public proceedings shall result in
12
the material no longer retaining its designation. Further procedures for the handling of
Confidential information at trial shall be addressed in a final pretrial order. The parties shall
meet and confer to negotiate a proposal for Court approval addressing the treatment of material
previously designated “Confidential” prior to the entry of a final pretrial order.
13, Filing Confidential Material with the Court. The parties will comply with the
Uniform Rules of impoundment. A party that intends to make a filing referring to or disclosing
Preview
29.1 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT ELIZABETH GRADY FACE FIRST INC. d/b/a THE ELIZABETH GRADY COMPANY, CIVIL ACTION NO. 2081-CV-02967 Plaintiff, Vv. RECEIVED CYNOSURE, INC., and KEVIN THORNAL, 9/8/2021 Defendants. NON-PARTY HOLOGIC INC.’S AND DEFENDANT KEVIN THORNAL’S MEMORANDUM IN SUPPORT OF MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH SUBPOENAS Although Hologic Inc. (“Hologic”) and its financial advisor, Goldman Sachs & Co., LLC (“Goldman”) are not parties to this case and are not alleged to have made any of the 2018 statements upon which Elizabeth Grady Face First Inc. (“Elizabeth Grady”) bases its claims, Elizabeth Grady claims to have served two subpoenas (the “Subpoenas”) upon Goldman seeking information related to Hologic’s sale of its stake in Cynosure in November 2019.' At best, the ! Whether Goldman, which is based in New York, must comply with a Massachusetts state court subpoena is a disputed issue. Goldman objected to the Subpoenas on a number of grounds, including ineffective service upon a New York entity. According to its objection, it is Goldman’s position that a valid subpoena can only issue from a New York court. This Motion is served out of an abundance of caution, based upon the assumption that this Court has jurisdiction over Goldman. Subpoenas are a fishing expedition; at worst, they are harassing. In any event, they are improper and should be quashed. Based on the allegations contained in Elizabeth Grady’s First Amended Complaint, the critical issue in this case is whether Cynosure told Elizabeth Grady the truth about Cynosure’s own business in December 2018. Elizabeth Grady can and will get from Cynosure information about Cynosure’s business and the truthfulness of Cynosure’s representations to Elizabeth Grady. But the Subpoenas are directed at what strangers to those conversations -- Hologic and Goldman -- believed about Cynosure’s business well after December 2018. Since Elizabeth Grady has not alleged that Hologic or Goldman made any representations (let alone misrepresentations), their assessment(s) of Cynosure’s business is wholly irrelevant. In short, the Subpoenas seek information that is irrelevant, as well as confidential and proprietary. Hologic and Thornal (who now works at Hologic) therefore seek a protective order pursuant to Mass. R. Civ. P. 26(c) denying the discovery sought in the Subpoenas and/or an order quashing the Subpoenas pursuant to Mass. R. Civ. P. 45(f). RELEVANT BACKGROUND Elizabeth Grady’s First Amended Complaint (“FAC”) alleges that on December 3, 2018, a group of Cynosure representatives made a presentation to Elizabeth Grady management (FAC at §{ 17, 18), which included information about Cynosure products, revenue projections, and an example of a marketing campaign. (Id. at § 23.) Elizabeth Grady alleges that, thereafter, Cynosure pledged that it “would be the driving force to bring in new business, 29 6, ‘would create custom advertisements,” and “would use its national brand recognition and marketing experience to drive anew customer base through Elizabeth Grady’s doors.” (Id. at 25.) Elizabeth Grady also alleges that “Cynosure” agreed that “it would promote” Elizabeth Grady beauty products and make Elizabeth Grady “Cynosure’s vendor of choice” for ancillary beauty products. (Id. at § 32.) On January 10, 2019, Elizabeth Grady signed a Lease Agreement with Cynosure. (Id. 934.) Neither Hologic nor Goldman is a party to the Lease Agreement. Goldman was retained by Hologic (not Cynosure) well after the Lease Agreement was signed. Critically, Elizabeth Grady does not allege that Cynosure’s majority shareholder, Hologic, made any commitments or representations. Rather, it alleges is that “upon information and belief,” while the negotiations were being conducted, “Hologic was in the course of deciding to divest itself of the Cynosure business and was making an effort to minimize its losses...” (FAC § 33.) Eleven months after Cynosure’s alleged misrepresentations, in November 2019, Hologic announced that it intended to sell its stake in Cynosure. (FAC § 44.) Elizabeth Grady claims that the relatively low sale price “confirms that Cynosure and [its former president, Kevin Thornal,] were well aware that the sales data shown to Elizabeth Grady at the December 3, 2018 meeting was false and that Elizabeth Grady would never realize those projected revenues.” (Id. at { 44.) The complaint wholly fails to explain what, if anything, Hologic’s 2019 negotiated sale price for ? After the Lease Agreement was signed, according to Elizabeth Grady, Cynosure did not provide an acceptable “digital marketing campaign,” (FAC 38) or public relations support (id. at § 39) and did not make Elizabeth Grady a “vendor of choice.” (Id. at ]41.) Asa result, Elizabeth Grady alleges that it suffered various types of indirect and consequential damages. (Id. at J 46.) 3 As Thornal and Cynosure’s pending motions to dismiss papers make clear, whether or not Hologic was considering to divest itself of Cynosure is irrelevant to whether Cynosure’s representations to Elizabeth Grady were true when made and cannot form the basis of any misrepresentation claim the entire Cynosure enterprise has to do with December 2018 sales projections related to two devices.* THE SUBPOENAS Copies of the Subpoenas are attached as Exhibits A and B. The first, dated June 22, 2021, seeks, among other things: “All documents that identify the date on which Goldman was first contacted to provide advice and/or services in connection with Hologic’s anticipated sale of its Cynosure business.” “All agreements with respect to the sale of Cynosure, including any investor advisory agreement involving Goldman.” “Copies of any prospectus, offering material, brochures, pamphlets or similar documents that Goldman prepared in connection with Hologic’s sale or anticipated sale of its Cynosure business.” The second, dated August 9, 2021, seeks: “All communications between Goldman and Kevin Thornal regarding Hologic’s sale, anticipated sale, restructuring, and/or any other disposition of its Cynosure business.” Thornal and Hologic objected to the Subpoenas, but in conferences with plaintiff's counsel, agreed to withdraw the objections if the Subpoenas were narrowed to request: (a) documents that referenced Elizabeth Grady; and (b) statements by Thornal about Cynosure’s business. Counsel for Elizabeth Grady declined the offer and insisted that Elizabeth Grady was particularly interested in any analyses or advice provided by Goldman—a third-party investment banker that had no 4 Elizabeth Grady does not allege that Hologic’s later divestiture affected Cynosure. Elizabeth Grady also does not allege that Cynosure ever promised that Hologic would always own Cynosure. Cynosure remains a viable entity, and the Lease Agreement remains in place. involvement whatsoever in Cynosure’s business at the time that the allegedly actionable representations were made by Cynosure and Thornal. ARGUMENT 1. Hologic and Thornal have Standing to Quash the Subpoenas. Massachusetts Rule of Civil Procedure 45 provides that, “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoen: and that the court may upon a timely motion “quash or modify the subpoena if it is unreasonable and oppressive.” Mass. R. Civ. P. 45(b). Although Hologic and Goldman are non-parties to the case, Hologic has standing to move to quash the subpoena directed to Goldman. After all, “[a] non-party may have standing to move to quash a subpoena directed to another non-party that calls for production of documents to which the moving non-party has ownership rights or a property interest.” 49 Peter M. Lauriat et al., Massachusetts Practice Series, Discovery § 6:4 (2021). See also Bos. Restoration Res., Inc. v. Lorenzo Pitts, Inc., No. 17-1142-C, 2018 WL 1364764, at *1 (Mass. Super. Mar. 16, 2018) (“A party has standing to quash a subpoena served on a non-party if he or she has a personal right or privilege with respect to the requested information.” (alteration omitted) (quoting Energy Power (Shenzhen) Co. Ltd. v. Xiaolong Wang, 2014 WL 2048416, at *2 n.4 (D. Mass. May 6, 2014))). “The personal right or privilege claimed need not be weighty: parties need only have ‘some personal right or privilege in the information sought’ to have standing to challenge a subpoena to a third party.” SEC v. Nav ellier & Assocs., Inc., No. 17-cv-11633, 2019 WL 688164, at *2 (D. Mass. Feb. 19, 2019) (emphasis in original) (quoting Degrandis v. Children’s Hosp. Bos., 203 F. Supp. 3d 193, 198 (D. Mass. 2016)). The Subpoenas seek private and confidential advice Goldman provided to Hologic and materials Goldman prepared in anticipation of the sale. Accordingly, Cynosure has, at the very least, “some personal right or privilege in that the information sought.” See, e.g., Enargy Power, 2014 WL 2048416, at *2 n.4 (“Bank customers have a personal right with respect to their bank account records.”); Reliastar Life Ins. Co. v. Warrior, No. CIV.A. 06-2486CM-DJW, 2007 WL 2669558, at *4 (D. Kan. Sep. 7, 2007) (concluding that individual “does have a personal right, as the investigative file [sought in a subpoena directed to the district attorney] contains information pertaining to the alleged murder of [the individual’s] husband”). Accordingly, Hologic and Thornal have standing to challenge the Subpoenas. 2. The Subpoenas Seek Documents that are Irrelevant. This case is based on the vague assertion that in December 2018, Cynosure officials, including Thornal, overstated the benefits that Elizabeth Grady might achieve if Elizabeth Grady installed two of Cynosure’s medical devices in twenty-four Elizabeth Grady spas. Elizabeth Grady does not allege that those Cynosure officials made any representations or said anything specific about Hologic. Nor does Elizabeth Grady allege that Hologic or Goldman ever provided any information to Elizabeth Grady. Nearly a year after Cynosure made the allegedly false statements, in November 2019, Hologic (with Goldman’s help) sold its controlling interest in Cynosure for $205 million, a price that was lower than what Hologic paid for Cynosure in 2017. Elizabeth Grady posits that the November 2019 sale price negotiated by Hologic and Goldman somehow demonstrates that Cynosure’s December 2018 statements were untrue. There is no logic whatsoever to that contention. And in any event, it does not justify the far-reaching Subpoenas. For one thing, of course, the alleged misrepresentations were made by 6 Cynosure, not Hologic or Goldman. See, e.g., Lewis PR v. Murphy, No. SUCV20182489BLS1, 2019 WL 1320369, at *1 (Mass. Super. Feb. 27, 2019) (cautioning that “[fJiling a complaint does not provide a party with license to inspect all of a person’s private communications with others for a 20-month period in hopes that it will produce some information that might be of use in a civil law suit” and explaining that demand can be made only where there is “good cause to believe that such communications would be evidence of a violation” alleged); Finnerty v. Stiefel Lab'ys, Inc. No. 09-21871-CV, 2011 WL 5842799, at *3 (S.D. Fla. Nov. 21, 2011) (explaining that “Plaintiff's proposed evidence relating to non-parties’ individual investment decisions, non-parties' personal beliefs and opinions, nonparties' conversations to which Finnerty was not a party and in which Finnerty was not discussed . . . is simply not relevant to Finnerty's claims” focusing on whether material misrepresentations or omissions were made to Finnerty). For another, the allegedly actionable statements related to a very small transaction (Elizbeth Grady was leasing two machines for twenty-four spas), while the November 2019 sale related to an enterprise that offered more than twenty products, installed in thousands of locations throughout the world. Hologic’s sale of Cynosure for $205 million hardly demonstrates that Cynosure officials somehow knew that there was no demand for the two devices it was leasing to Elizabeth Grady. And of course, there is the issue of timing. Whatever Goldman and Hologic said or did leading to the November 2019 sale hardy bears on the truthfulness of Cynosure’s 2018 statements. In sum, the Subpoenas seeks plainly irrelevant documents and must therefore be quashed. See Cipolleta v. Sharp, No. CIV. A. 98-5947-A, 2001 WL 914526, at *2 (Mass. Super. Aug. 13, 2001) (“The subpoena is not limited in scope to matters that are relevant to the subject matter involved in the pending action or information that is reasonably calculated to lead to the discovery 7 of admissible evidence. Mass. R. Civ. P. 26(b)(1). On this basis alone, [the defendant’s] motion to compel production of documents by the [non-party] must be denied.”). 3. To The Extent that the Subpoenas Seek Relevant Information, Elizabeth Grady Can Get the Information from the Parties, Without Invading the Hologic-Goldman Relationship. Elizabeth Grady may argue that it served the Subpoenas in order to ascertain information about Cynosure’s business that will help demonstrate whether the 2018 statements about Cynosure’s business were true. If that is so, there are far less intrusive (and costly) ways for Elizabeth Grady to obtain that information. Elizabeth Grady can and should request historical sales figures and 2018 projections from Cynosure, at least in the first instance. 4. The Subpoenas Seek Documents that Are Proprietary. Finally, the Subpoenas should be quashed because they seek competitive business advice. Goldman advised Hologic (not Cynosure) about the sale of a women’s esthetic business, potential buyers, and perhaps, industry information. These are all issues that have nothing to do with this case, but they are matters that Elizabeth Grady is very interested in for competitive reasons. To address this, Hologic offered to withdraw its objections if counsel for Elizabeth Grady would agree to focus the Subpoena on actual references to the Cynosure-Elizabeth Grady Lease Agreement, and not general market issues. But counsel for Elizabeth Grady has made it clear that Elizabeth Grady is not interested in targeted discovery. Elizabeth Grady wants to know what Goldman thought about the value of Cynosure’s business and the industry in general. That is advice that Hologic paid for, and Elizabeth Grady should not have the benefit of it. CONCLUSION The Subpoenas seek information from non-parties that is plainly irrelevant to the case. Moreover, that information is confidential and proprietary. For the reasons laid out above, Hologic and Thornal request that the Court grant this motion for a protective order and/or to quash Elizabeth Grady’s Subpoenas to Goldman. HOLOGIC, INC. and KEVIN THORNAL By their attorneys, UA PT, Peter E. Gelhaar,‘BBO # 188310 Daniel P. Tighe, BBO # 556583 DONNELLY, CONROY & GELHAAR, LLP 260 Franklin Street, Suite 1600 Boston, MA 02110 617-720-2880 AUGUST 19, 2021 CERTIFICATE OF SERVICE I hereby certify that I have caused a copy of the foregoing pleading to be served on the following counsel by first class mail and email on August 19, 2021: William A. Zucker, Esq. Daniel S. Pariser, Esq. Michael Pineault, Esq. Nicholas W. Allen, Esq. Jocelyn A. Wiesner, Esq. Anderson & Kreiger LLP McCarter & English, LLP Arnold & Porter 50 Milk Street, 21st Floor 265 Franklin Street 601 Massachusetts Ave. N.W. Boston, MA 02109 Boston, MA 02110-3113 Washington, DC 20001-3743 kere Daniel P. Tighe ¥ 10 EXHIBIT A COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. Superior Court Department Of The Trial Court ELIZABETH GRADY FACE FIRST INC. D/B/A THE ELIZABETH GRADY COMPANY, Plaintiff, Vv, C. A. No, 2018-CV-02967 CYNOSURE, INC. and KEVIN THORNAL, Defendants. SUBPOENA DUCES TECUM To: Goldman Sachs & Co., LLC c/o Keeper of Records CT Corporation System, its Registered Agent 155 Federal St., Suite 700 Boston, MA 02110 YOU ARE HEREBY COMMANDED, by the authority of the Commonwealth of Massachusetts, in accordance with the provisions of Rule 45(d) of the Massachusetts Rules of Civil Procedure, to produce documents set forth in the attached Exhibit A, to Nicholas Allen, counsel for plaintiff Elizabeth Grady Face First, Inc., d/b/a The Elizabeth Grady Company, at the offices of McCarter & English LLP, 265 Franklin Street, Boston, MA 02110 on or before July 9, 2021. HEREOF FAIL NOT as you will answer your default under the pains and penalties in the law in that behalf made and provided. >) “2-9 te Nicholas W. Allen (BBO #663409) Dated: June 16, 2021 McCarter & English, LLP o 265 Franklin St. G £bi ‘ Boston, MA 02110 Notary Public (617) 449-6500 My Commission expires +20 » DIANE M. MONTEIRO Notary Public COMMONWEALTH OF MASSACHUSETTS: My Commission Expires June 8, 2023 RETURN OF SERVICE I this day summoned the within named to appear as within directed by delivering to in hand, - leaving at last and usual place of abode, to wit: No. Street, in the _ District of said an attested copy of the subpoena together with __ ns __ fees for attendance and travel Service and Travel Server Cop. Pd. Witness It being necessary I actually used a motor Motor vehicle vehicle the distance of. miles in the service of this process Server Subscribed and SWOrn to before me This day of 20 Notary Public EXHIBIT A To Subpoena Directed to Keeper of Records of Goldman Sachs & Co., LEC INSTRUCTIONS 1 Please produce the requested documents identified below to counsel for plaintiff, identified herein, on or before July 9, 2021. Documents produced pursuant to this Subpoena may be delivered in hard copy to plaintiff's counsel at McCarter & English, 265 Franklin St., Boston MA, 02110, or via electronic mail, to nallen@mccarter.com. 2 Please include with your production a Keeper of Records declaration or affidavit, taken before a clerk of a court of record or notary public, under the seal of such court or notary, stating that the affiant is the officer having charge of the original records, books and accounts, and that the copy is correct and is full so far as it relates to the subject matter therein mentioned. 3 Discovery in this case is governed by a certain Stipulated Protective Order, dated June 7, 2021, and endorsed by the Court on June 8, 2021. A copy of the Protective Order is attached hereto at Exhibit B. 4 These document requests relate to Goldman Sachs & Co., LLC’s (“Goldman”) involvement in a December 30, 2019 sale by Hologic, Inc. (“Hologic”), of Cynosure, LLC and/or its Cynosure division/business (“Cynosure”), to Clayton, Dubilier & Rice and/or Lotus Buyer, Inc. DOCUMENT REQUESTS 1 All documents that identify the date on which Goldman was first contacted to provide advice and/or services in connection with Hologic’s sale or anticipated sale of its Cynosure business. 2. All agreements with respect to the sale of Cynosure, including any investor advisory agreement involving Goldman. 3 Copies of any prospectus, offering material, brochures, pamphlets or similar documents that Goldman prepared in connection with Hologic’s sale or anticipated sale of its Cynosure business. 4 All documents identifying or containing a list of potential buyers that received from Goldman any prospectus, brochure, pamphlet or similar document related to the anticipated sale of Cynosure. 5 All due diligence documents or communications containing information related to Cynosure and which were provided to any potential buyer. 6 Copies of all bids or purchase offers for the Cynosure business received by Goldman. 7. All documents concerning, evidencing, referencing or relating to Goldman’s analysis of the potential and/or actual sales price for the Cynosure business, and/or Goldman’s valuation of the Cynosure business, including but not limited to any fairness opinion or equivalent provided by Goldman. 8 All documents concerning, evidencing, referencing or relating to Goldman’s analysis of any bids or purchase offers received for the Cynosure business. 9. All documents concerning, evidencing, referencing or relating to any advice provided by Goldman to Hologic regarding the sales price and/or purchase offers received for the Cynosure business. EXHIBIT B ey dd 5 eo COMMON WEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT on ELIZABETH GRADY FACE FIRST INC. D/B/A THE ELIZABETH GRADY COMPANY, Plaintiff, CIVIL ACTION NO. 2081-CV-02967 v CYNOSURE, INC., and KEVIN THORNAL, Defendants, ~ STIPULATED [PROPOSED] PROTECTIVE ORDER Pursuant to Mass. R. Civ. P. 26(c) and 26(f), the parties to the above-styled action (“the Action”), through their respective counsel, agree to the terms and conditions of this Stipulated Protective Order. This Order shall govern the production and handling of documents, items, or other information exchanged by the parties or non-parties in the Action (including, without limitation, responses to interrogatories, requests for admissions, pleadings, exhibits, and depositions or other testimony), regardless of the medium or manner in which any such materials are generated, stored, or maintained. This includes any material produced, filed, or served by any party or non-party during discovery in this Action (defined as the above entitled proceeding). The Court, finding that good cause exists for entry of a protective order in the Action to prevent unauthorized disclosure of confidential information during and after the course of the litigation, hereby ORDERS as follows: 1 Materials Covered. Any party or other person, including non-party recipients of discovery requests/subpoenas, may designate all or any part of a document, discovery response, deposition, or other material which that party or person produces, serves, or provides in connection with this Action as “Confidential Material” (also referred to as “Protected Material”) as described below. a. “Confidential Material” shall mean material that the party or non-party producing the materia! or designating material as “Confidential” (the “Designating Party”) believes in good faith deserves protection under Mass. R. Civ. P, 26(c)(7), This includes, without limitation, confidential non-public research or analysis, development, internal communications, personal or commercial information used or obtained by a party in their business that is not publicly known and would not normally be disclosed to third parties and, if disclosed, would require third parties to maintain it in confidence, and any other information for which a good faith claim of need of protection can be made under the Massachusetts Rules of Civil Procedure and/or applicable Massachusetts law. b. Any document produced by a party or non-party in this litigation may be designated as Confidential Material by marking it "CONFIDENTIAL: SUBJECT TO. PROTECTIVE ORDER” on the face of the document at or prior to the time of production. A party or non-party may designate natively produced electronic documents and other non-imaged media as “Confidential Material” as appropriate, by noting such designation in an accompanying cover letter and including the appropriate confidentiality designation in the load file provided with the electronic production. c. Testimony provided in this litigation may be designated as Confidential Material by any party or non-party if the testimony concerns or retates to that party's or non-party’s Confidential Material, subject to the Paragraphs below. The person desiring to designate any portion of testimony as Confidential Material shall do so by so stating orally on the record on the day that the testimony is being given, either personally or through counsel. {f any party makes such an oral designation, the confidential portions of the deposition shall be taken only in the presence of persons entitled to access to such information under this Order. Additionally, any party or non-party may designate any or all portions of the transcript and/or video of any deposition (or of any other testimony) as containing Confidential Material in accordance with this Order by notifying all other parties in writing, within 20 days of receipt of the final, official (non-draft) transcript and/or video, that it contains Confidential Material and designating the specific pages and/or lines as containing Confidential Material. All transcripts and/or videos shall be treated as Confidential Material and subject to this Protective Order until a time 20 days after a final, official (non-draft) transcript or video of the deposition (or other testimony) are received, if no designation is made prior to that time. Any inadvertent failure to designate transcripts and/or videos within the 20 day time period may be addressed under Section 8 of this Protective Order. If practicable, the reporter shall bind the confidential testimony in separate volumes and mark the face of the transcript to indicate its confidential nature and production pursuant to this Protective Order. Any video cassettes (or other storage media) containing Confidential testimony shall be so designated in accordance with the provisions of this Protective Order. 2. Use of Materials and Declaration. a. All materials produced in discovery, including, but not limited to, those which are designated Confidential, shall be used solely in furtherance of the prosecution, defense, or attempted settlement of this Action, shall not be used at any time for any other purpose whatsoever, and shall not be disclosed to or made accessible to any person except as specifically permitted by this Order. All materials designated as Confidential must be stored and maintained by the party receiving the material (the “Receiving Party”) in a manner no less secure than a Receiving Party would store and maintain its own confidential material or that of its clients. Upon conclusion of this Action, a Receiving Party must comply with the provisions of Paragraph 6 below regarding return or destruction of Confidential Material, b. Each person to whom Confidential Material is disclosed shall execute a Declaration in the form annexed hereto as Exhibit A, and shall agree to be bound by this Order, before receiving Confidential Material, except to the extent such execution is not required in Paragraph 3 below. ¢. Notwithstanding any contrary provision in this Order, a party is permitted to disclose Confidential Material to the extent required by a valid subpoena or other valid legal process, provided that the procedures in this paragraph are followed. The party that has received a valid subpoena or other valid legal process (the “Subpoenaed Party”) must provide the Designating Party with written notice of such subpoena or other legal process, via electronic mail/PDF, or hand delivery, within three (3) business days of receiving the subpoena or a lesser period if ordered by the Court (“the Response Period”), in order to afford the Designating Party an opportunity to object. The Subpoenaed Party shall also inform the persons seeking discovery in writing (with copy to the Designating Party) that providing the information may be a violation of this Protective Order. A fter receipt of the notices specified by this paragraph, the Designating Party seeking to maintain the confidentiality of any information shall have the sole responsibility for obtaining any order it believes necessary to prevent disclosure of the information that has been subpoenaed or requested. If the Designating Party does not move for a protective order within fourteen (14) days (or within such times as a court may direct or as may be agreed upon with the subpoenaing/requesting party) and give written notice of such motion to the Subpoenaed Party, the Subpoenaed Party may commence production in response to the subpoena or request. The Subpoenaed Party will not produce any of the Confidential Material while a motion for a protective order brought by the Designating Party pursuant to this paragraph is pending, or while an appeal from or request for appellate review of such motion is pending unless a court orders production of material that is subject to this Order. In such case, production of such materials pursuant to that Court Order shall not be deemed a violation of this Order. Atno time shall the Subpoenaed Party take a position concerning the propriety of a subpoena or other legal process as it relates to a Designating Party's Confidential Material. Finally, nothing herein shall be construed as requiring the Subpoenaed Party to subject itselfto any penalties for non-compliance with any subpoena, access request, or legal process or to seek any relief from the Court. 3 Disclosure of “ nfidential” Mater Unless otherwise ordered by the Court or permitted in writing by the Designating Party, disclosure of “Confidential” materials may be made only to: a. the Court, its secretaries, clerks, law clerks and other support staff in the manner set forth herein; b. altorneys for a party who are working on the Action and employed or retained support staff, secretaries, paralegals, legal assistants, and support services (including, without limitation, copy services, litigation consultants, document management services and graphics services) (this category hereinafter referred to as “Attorneys”). Attorneys shall include in-house counsel actively involved in the prosecution or defense of the Action (“In-House Counsel”); €. court reporters, court videographers, and similar transcription services and their support staff (this category hereinafter referred to as “Court Reporters”); d any expert or consultant (including all non-party personnel and support staff assisting such expert or consultant, but not the entity itself by which such expert or consultant and assisting personnel are employed) who is retained by or for the benefit of any of the parties in the Action to assist counsel in the Action (this category hereinafter referred to as “Experts”), provided that the expert or consultant has executed a Declaration in the form annexed hereto as Exhibit A; &. any mediators engaged by the parties, and their support staff, f. any person who Attorneys have a good-faith basis to believe authored or previously received the material or the information contained therein; 8 any person who is an employee of a party to this Action, or a former employee of the Designating Party (if they were employed by the Designating Party when the material was created or if they had an authorized right of access to the document in the ordinary course of that employment), h any person who has been designated as a Rule 30(b)(6) witness by the Designating Party; and i during the conduct of their depositions, witnesses in the Action for whom Attorneys have a good-faith basis to believe disclosure is reasonably necessary and who have signed a Declaration in the form annexed hereto as Exhibit A and agreed to be bound by this Order unless disclosure is permissible pursuant to 3(f) above. 4 Requests to Disclose Confidential Materials. [fa party seeking to disclose Confidential Material to a person not authorized access to such documents pursuant to Paragraph 3 above provides counsel for the Designating Party with advance written notice, via electronic mail/PDF, or hand delivery, at least three business days before disclosure, that states the identity of the material for which disclosure is sought and the identity of the witness to whom disclosure would be made, counsel for the Designating Party may challenge the proposed disclosure of material pursuant to this provision, by providing counsel for the party seeking disclosure with a written objection, via electronic mail/PDF or hand delivery, within two business days thereafter. if a written objection is made, the party seeking disclosure shall not proceed with disclosure unless authorized to do so pursuant to the procedures described in Paragraph 5 below. 5 Challenges to Designations. Any party wishing to challenge the “Confidential” designation assigned by another party or other person (“Objecting Party”) with respect to any material shall give notice by email or other written communication of such objection to counsel for the Designating Party. Within ten (10) days of receipt of written notice of the designation challenge, the Designating Party shall meet and confer with the Objecting Party to attempt to resolve the designation dispute. If no resolution is reached, the Objecting Party may move the Court for an order removing such Protected Material from the restrictions of this Protective Order, and any papers filed in support ofor in opposition to said motion shall, to the extent necessary, be filed with a request that they be impounded for good cause shown as ordered by the Court in order to preserve the claimed confidentiality of the material. Upon the filing of such a motion, the burden rests upon the Designating Party to demonstrate the propriety of such designation. Until the parties or the Court resolves a challenge to the designation of “Confidential” material, the original designation shall remain in full force and effect. 6 Handling of Confidential Materials, All material designated “Confidential” shall remain in the possession of the Attomeys of record to whom such material is produced subject to the disclosure {imitations set forth in paragraph 3 above. Persons who have been shown material designated “Confidential” pursuant to this Protective Order and have not otherwise obtained or maintained the material in the normal course of business shall not retain copies of such Protected Material: Within sixty (60) days after such time as the Action is concluded, whether by final adjudication on the merits from which there remains no right of appeal, or by other means, any party or person producing “Confidential” material may require the return or destruction of all materials and copies thereof containing “Confidential” information (including but not limited to copies in the possession or control of any Expert or employee), and all reasonable costs of such return shall be borne by the party requesting such return. Unless the Designating Party provides notice of a return requirement within the sixty-day period specified above, or unless otherwise ordered, each Receiving Party shall undertake commercially reasonable efforts to destroy all such materiat and certify in writing to the Designating Party that all such material has been destroyed to the extent practicable. As to those materials that contain, reflect, incorporate, attach, or reference attorney work product, counsel of record for the parties shall be entitled, without violating this Protective Order, to retain such work product in their files, so long the terms of this Protective Order will continue to govern any such retained materials. In addition, counsel shall be entitled, without violating this Protective Order, to retain pleadings, affidavits, motions, briefs, expert reports (and exhibits thereto), correspondence (including internal correspondence and e-mail), any other papers filed with the Court (including exhibits), deposition transcripts, and the trial record (including exhibits) even if such materials contain Confidential Material, so long as this Protective Order will continue to govern any such retained materials. The Receiving Party’s reasonable efforts shall not require the return or destruction of materials that (a) are stored on backup storage media made in accordance with regular data backup procedures for disaster recovery purposes; (b) are located-in the email archive system or archived electronic files-of departed employees; or (c) are subject to legal hold obligations. Backup storage media need not be restored for purpose of returning or certifying destruction of materials, but any such materials retained in backup storage media shall continue to be treated in accordance with this Protective Order. 7 Inadvertent Production of Privileged Documents. Pursuant to Mass. R. Civ. P. 26(b)(5)(B), the parties agree that the inadvertent disclosure or production of any documents and ESI (“Inadvertently Produced Privileged Document”) in this case shall be without prejudice to and shall not, in itself, waive for purposes of this case or otherwise, any attorney-client privilege ot work product protection that otherwise would apply, except that: a affirmative use of ESI or a document by the producing party in the case waives privilege and protection with respect to it, and of other ESI and documents; and b upon use in the case by a party other than the producing party of ESt or a document that was produced by a party, that producing party must promptly assert any claimed privilege and/or protection over it and provide notice to the party other than the producing party. Alternatively, in the event that a Receiving Party discovers a document that they believe to be an Inadvertently Produced Privileged Document, the Receiving Party will promptly notify the producing party of what it believes to be the inadvertently Produced Privileged Document (no receiving party will be found in violation of this Order for failing to initially identify an Inadvertently Produced Privileged Document). After discovering or being notified of an Inadvertently Produced Privileged Document, any Receiving Party must not use or disclose the document in any way until the claim is resolved and must take reasonable steps to retrieve the document if the party disclosed it before being notified of or discovering the inadvertent production, In addition, within fourteen days of discovering or being notified of the claim of privilege, the Receiving Party must comply with Mass. R. Civ. P. 26(b)(5)(B). Ifa party moves the Court for a determination of the claim, such party may not assert as a ground for finding no privilege the mere fact of inadvertent production but it shall be the Designating Party’s burden to prove privilege. 8 Inadvertent Failure te Designate. In the event that a confidential document, paper, or thing is produced without having been previously marked “Confidential”, the party in receipt of that material shall, upon a written request from the Designating Party or person, treat and preserve such document, paper, or thing in accordance with the confidentiality designation that the Designating Party states should have been affixed to it. The Designating Party must then re-produce the document, paper, or thing with the appropriate confidentiality designation. The Receiving Party will then replace the incorrectly designated materials with the newly designated materials and will destroy the incorrectly designated materials. The inadvertent failure of a party or person to designate a document as “Confidential” at the time of production shall not be deemed a waiver of the protections afforded by this Order, either as to specific information in the document or as to any other information relating thereto or on the same or related subject matter. No party shail be deemed to have violated this Stipulated Protective Order if, prior to notification 10 of any later designation, such material has been disclosed or used in a manner inconsistent with the later designation. Once a designation is made, however, the relevant documents or materials shall be treated as “Confidential” in accordance with this Protective Order. If material inadvertently not designated is, at the time of the later designation, already filed with a court on the public record, the party or person that failed to make the designation shall move for appropriate relief. 9 Inadvertent Disclosure of Material by Receiving Party. [fa party receiving “Confidential” materials learns that, by inadvertence or otherwise, it has disclosed the protected material to any person or in any circumstance not authorized under this Order, the Receiving Party must, as soon as is practicable: (a) notify in writing the Designating Party of the unauthorized disclosure; (b) use reasonable efforts to retrieve all copies of the protected materials; and (c) inform the person or persons to whom unauthorized disclosures were made, to the extent the person or persons are identifiable, that the disclosed material is Confidential and, if the person or persons are not permitted access pursuant to Paragraph 3, request that such persons execute a Declaration in the form annexed hereto as Exhibit A. 10. Obligations to Non-Parties. If information sought in a discovery request is implicated by a Party’s obligation to a non-party not to disclose such information, the Party shall: a. Timely serve a written objection to the production of such information on the basis of its obligation to a non-party not to disclose the information; b Within seven days of receiving the discovery request provide the non- party written notice of the pending request and a copy of this Order; and ¢.o Ifthe non-party does not object to the disclosure of information within twenty-one days from which the written notice of the pending request was sent by the {1 Party, the Party shall produce the materials (subject to any appropriate designations under the terms of this Order); or d If the non-party does object to the disclosure of information, the Party shall within ten (10) days of the non-party's objection either (A) produce the materials (subject to any appropriate designations under the terms of this Order or stipulated between the Parties to the Action) or (B) file an appropriate motion (¢.g., to quash or for a protective order) for relief from the Court but this provision shall not confer additional standing on the objecting party to assert a non-party’s claim. e. Notwithstanding the foregoing, nothing in this Paragraph shal! be deemed to prohibit, hinder or otherwise affect any party’s right to raise any permissible other objection to a request for discovery as permitted by the Massachusetts Rules of Civil Procedure. il, Information from Non-Party Sources. To the extent that any discovery requests are served on a non-party, the party serving the discovery request(s) shall, at the time of service, provide the non-party with a copy of this Protective Order and the terms of this Protective Order shall govern the discovery from a non-party. 12. Use in Court Proceedings. Nothing contained in this Stipulated Protective Order shail be construed to prejudice any party’s right to use at trial or in any hearing before the Court any “Confidential” material, or any party's right to challenge any such use. The parties reserve the right to seek additional relief from the Court with respect to “Confidential” material that may be presented at trial or in any hearing before the Court. “Confidential” material shall not lose its designated status through its mere use at trial or in any hearing before the Court; however, use or disclosure of Confidential Material by the Designating Party in public proceedings shall result in 12 the material no longer retaining its designation. Further procedures for the handling of Confidential information at trial shall be addressed in a final pretrial order. The parties shall meet and confer to negotiate a proposal for Court approval addressing the treatment of material previously designated “Confidential” prior to the entry of a final pretrial order. 13, Filing Confidential Material with the Court. The parties will comply with the Uniform Rules of impoundment. A party that intends to make a filing referring to or disclosing