Preview
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
37.1 5/26/2022
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT
MIDDLESEX DIVISION
)
ELIZABETH GRADY FACE FIRST INC. )
D/B/A THE ELIZABETH GRADY )
COMPANY, )
)
Plaintiff, )
)
v. C. A. No. 2081CV02967
)
)
CYNOSURE, INC. AND KEVIN )
THORNAL, )
)
Defendants.
)
)
PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION TO COMPEL
HOLOGIC, INC. TO COMPLY WITH SUBPOENA DUCES TECUM
Plaintiff Elizabeth Grady Face First Inc., d/b/a The Elizabeth Grady Company (“Elizabeth
Grady”), moves for an order compelling non-party Hologic, Inc. (“Hologic”), the former parent of
Defendant Cynosure, Inc. (“Cynosure”), to produce documents and records in response to a validly
served Rule 45 Subpoena Duces Tecum (the “Subpoena”).1
INTRODUCTION
Through the Subpoena, Elizabeth Grady seeks documents from Cynosure’s former parent
company, Hologic. The Subpoenaed records relate directly to (i) Hologic’s decision to sell the
Cynosure business in 2019 at a steeply discounted price ($205 million), approximately two years
FW
after purchasing the business for $1.7 billion, and (ii) the performance during that time-period of
1
A copy of the Subpoena is attached hereto at Exhibit A.
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
the Cynosure business.2 In the interim, Cynosure’s management actively solicited business from
Elizabeth Grady through affirmative representations about the state of its business, including that
Cynosure was fully backed by its parent Hologic (a $4 billion public company at the time), and
that Cynosure’s product sales and marketing successes and resources would generate significant
profits for Elizabeth Grady. It was those representations (among others), made by Cynosure
management in December of 2018, which induced Elizabeth Grady to enter into a supposed
partnership with Cynosure, culminating in the execution of a Product Lease Agreement on January
10, 2019.3
This supposed partnership failed even before it could start, as Cynosure never delivered
the support and resources it represented to Elizabeth Grady would be available. Elizabeth Grady
would later learn through public filings that Hologic suffered significant revenue losses in 2018 in
its “medical aesthetics” business (i.e., Cynosure). These records further showed that Hologic
recognized, nearly immediately after purchasing Cynosure in 2017, that the Cynosure division was
not profitable and that certain products had to be pulled from the market. Hologic reported those
revenue losses in November of 2018, during the time that Cynosure was soliciting business with
Elizabeth Grady. Ultimately, the roll-out of Cynosure’s products into Elizabeth Grady’s salons
was an unmitigated disaster; Cynosure failed to provide the promised support, marketing or
training; failed to drive new customers into the salons; and failed to demonstrate that its claimed
revenue streams had any reality. The simple fact is that contrary to Cynosure’s representations,
Hologic was no longer supporting the business but instead was looking to sell it. The result was
2
Hologic purchased Cynosure, a medical aesthetics business, in 2017 for $1.7 billion. Approximately two years later,
in November 2019, Hologic sold the Cynosure business at the deeply discounted price of $205 million.
3
Through this Agreement, Cynosure leased to Elizabeth Grady its body sculpting equipment known as SculpSure
and Icon. These machines were to be installed at Elizabeth Grady’s health and beauty salons throughout New England.
Under the rental agreement, the parties were to share the revenue generated by the treatments performed by Elizabeth
Grady through the Cynosure SculpSure and Icon devices.
2
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
that Elizabeth Grady suffered substantial losses due to the Defendants’ fraud, culminating in this
lawsuit.
Hologic is the former owner of the Cynosure business and undoubtedly is in possession of
materials that are relevant to core issues being litigated, and which are subject to discovery under
Rules 26 and 45. These issues include, for example: (i) when Hologic decided to sell its Cynosure
business; (ii) the reason or reasons why Hologic decided to sell the business; and (iii) what was
known by Cynosure’s and Hologic’s management about the state of the business during the key
time-period when Cynosure was making affirmative representations to Elizabeth Grady about its
product sales and marketing success. The Subpoena is narrowly directed at these types of records.
To date, however, Elizabeth Grady’s discovery efforts have been countered with stiff
resistance. Elizabeth Grady first sought records directly from Cynosure, yet Cynosure failed and
refused to produce any records (even despite Elizabeth Grady’s offers for phased productions).4
Cynosure has relied on baseless objections to avoid its discovery obligations, including that
responsive records are in the possession of its former parent company, Hologic. Now, Hologic
objects to Elizabeth Grady’s Subpoena by claiming it is a stranger to this suit, and that it should
not be required to produce documents that Elizabeth Grady can more easily obtain from Cynosure,
its former subsidiary. Hologic further claims that the sale of its former Cynosure business is
irrelevant to the claims being litigated. These coordinated circular objections lack merit and are
improperly blocking Elizabeth Grady’s rights to obtain basic discovery, all while significantly
increasing Elizabeth Grady’s litigation expenses and creating unnecessary motion practice
requiring the attention of an already busy court. Elizabeth Grady is entitled to this discovery from
Cynosure as well as third parties like Hologic, even if the discovery overlaps.
4
Elizabeth Grady continues to seek these responsive documents from Cynosure.
3
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Hologic also mistakenly argues that the Court’s prior margin order related to a subpoena
served by Elizabeth Grady on Hologic’s investment banker, Goldman Sachs & Co. LLC
(“Goldman”), somehow limits Hologic’s obligations to respond to this Subpoena. In that order
(dated Nov. 17, 2021), the Court allowed Elizabeth Grady to obtain key documents from Goldman
related to the sale of the Cynosure business and Goldman’s engagement by Hologic to facilitate
the sale. While the Court made no findings and did not issue a written ruling, the Court precluded
discovery of Goldman’s internal work product and analysis. Yet Goldman and Hologic stand in
starkly different shoes, and that prior Order has no limiting affect here. Hologic owned Cynosure
for two years, and was ostensibly involved in the management and oversight of the business, and
the decision to sell the company. Hologic likely has in its possession a number of critical
documents, including financial records, pro formas, meeting minutes, emails, and other business
records directly related to this case, which Goldman would not have. As evidenced by its own
written Rule 34 document responses, Cynosure agrees that Hologic is a viable source of
information bearing directly on issues relevant to this case.
As explained below, the Subpoena includes a narrowly drafted set of requests directly
targeting core documents and issues in the case. Hologic’s interpretation of what is relevant and
subject to discovery is groundless. The Court should therefore order Hologic to immediately
produce all materials and documents responsive to the Subpoena.
RELEVANT FACTS
I. Brief Case Summary
Through its First Amended Complaint, Elizabeth Grady asserts claims against Cynosure
and its former president, Kevin Thornal, for common law fraud/misrepresentation, and violation
of Chapter 93A. At the heart of this dispute lies a number of material misrepresentations and half-
4
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
truths peddled by Cynosure and its representatives to Elizabeth Grady during an aggressive
offering in the fall of 2018. Cynosure solicited Elizabeth Grady to reshape its business, to lease
certain of its body-countering devices, and to offer those services throughout Elizabeth Grady’s
New England salon locations. Because of the misrepresentations, Elizabeth Grady agreed to
“partner” with Cynosure and the parties signed a Product Lease Agreement on January 10, 2019.
Prior to signing the Agreement, Thornal and others in Cynosure’s management, including
Blake Ahitow, repeatedly claimed that this proposed partnership had the full backing and support
of Cynosure’s parent, Hologic, a $4 billion publicly traded company at the time. In 2017, well
prior to the execution of the parties’ Agreement, Hologic purchased the Cynosure business for
nearly $1.7 billion. In the fall of 2019, however, Hologic sold the business at a steep loss, for a
reported $205 million. Cynosure’s aggressive solicitation of Elizabeth Grady occurred in the last
quarter of 2018, right in the middle of Hologic’s brief period of ownership of Cynosure.
As part of its representations to Elizabeth Grady, Cynosure management presented
Elizabeth Grady with what Cynosure claimed were established, achievable national sales data for
its products. Cynosure and its representatives told Elizabeth Grady at a meeting on December 3,
2018, that these sales numbers would be achieved with the marketing support that Cynosure
claimed it provided to its customers, and would provide to Elizabeth Grady. Cynosure stated that
the parties would work together in a mutually-beneficial partnership, and that Cynosure was fully
supported by its parent, Hologic, in these efforts. None of those representations turned out to be
true. The conditions which caused the firesale of Cynosure in 2019 were already present, and
show the representations made to Elizabeth Grady to be misrepresentations of fact. Elizabeth
Grady filed suit on December 8, 2020, asserting claims for common law fraud and violation of
M.G.L. Chapter 93A.
5
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
II. Elizabeth Grady’s Discovery Requests Are Met With Stiff, Coordinated Resistance
Elizabeth Grady first sought discovery from Cynosure through Rule 34 document requests
at the outset of the case. The focus of Elizabeth Grady’s early discovery was on key
misrepresentations, including what Cynosure and Thornal knew in the fall of 2018 about
Cynosure’s internal state of affairs and its national sales data and trends. Cynosure served
responses and objections to Elizabeth Grady’s requests on February 19, 2021. More than a year
later, Cynosure has still not produced any documents, despite Elizabeth Grady’s repeated offers to
proceed with phased discovery focused first on core documents and issues.
With Cynosure refusing to produce documents, Elizabeth Grady served a Rule 45 subpoena
on Goldman on June 21, 2021. Elizabeth Grady served a second Rule 45 subpoena on Goldman
on August 13, 2021.5 Goldman objected to the subpoenas and motion practice followed. Hologic
also objected to the Goldman subpoena, claiming that the subpoenaed records were irrelevant,
confidential and proprietary. Without a hearing, the Court issued a ruling on November 17, 2021,
ordering Goldman to produce records responsive to some, but not all, of Elizabeth Grady’s
document requests. Thereafter, Goldman began producing documents in January of 2022.
III. Goldman Produces Documents that Evidence Significant Issues with the Cynosure
Business
The documents produced by Goldman show that the Cynosure business was severely
underperforming its revenue projections in 2018, that a “comprehensive turnaround plan” was
already in place by 2018, and that by mid-January 2019, Hologic had already approached Goldman
5
Through the subpoenas, Elizabeth Grady requested documents from Goldman that would show: (1) the date on
which Hologic first began discussing a possible sale or restructuring of the Cynosure business; (2) underlying company
data and financials (including sales data) that would show the reasons for the fire sale and that were used by Goldman
and the buyer to value the Cynosure business; (3) any communications or discussions between the parties concerning
Cynosure’s internal state of affairs and any factors prompting or contributing to Hologic’s decision to sell the business,
and/or affecting the market value of the business and/or the anticipated or expected sale price of the company.
6
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
to discuss the Cynosure business. Hologic called this “Project Lotus.” Hologic made this initial
contact with Goldman at or around the time that Cynosure was representing to Elizabeth Grady
that it was fully backed by the strength of Hologic, and that Cynosure was experiencing significant
sales and marketing success with its body sculpting products, including SculpSure.
The Goldman documents painted a different picture, however. Contrary to Cynosure’s
representations to Elizabeth Grady, the Goldman documents showed that:
Cynosure had a “turnaround plan” in place in fiscal year 2019 (starting October 1,
2018); Cynosure’s performance, however, did not meet the turnaround plan
The turnaround plan projected a continued loss of revenues in 2019
In fiscal year 2017 - 2018, body sculpting revenue decreased by $31 million
In fiscal year, 2018 – 2019, body sculpting revenue decreased by another $8 million
The turnaround plan projected another loss of revenue for body sculpting in 2019
of $8 million
The turnaround plan projected softness in body sculpting revenues until a new body
contouring platform launched in 2021
Earnings before income tax and depreciation (EBITDA) fell from 13.2% in 2016
to 1.7% in 2018 (after unaudited management adjustments)
The United States was the primary market for body sculpting products
Body sculpting was disproportionately impacted by the turnover of the domestic
sales force (approximately 60 tenured US sales representatives or 33% of the US
sales force left Cynosure after the Hologic acquisition)
Sales model “fit” challenges under Hologic led to sales team disruptions and
contraction
Sales force turnover and decline in revenue pressured operating margins
Body sculpting was also impacted by continued competition
Other market headwinds in body sculpting contributed to the slowdown
7
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Because of problems in the field with SculpSure, Cynosure was in the process of
developing a “guided mode”
There was a planned cannibalization of SculpSure on a going forward basis with
another new non-invasive body contouring devices so that SculpSure revenues
were projected to decline
There were cuts in marketing and changes in Cynosure’s marketing program and
direction
There was a decline in marketing expense due to a reduction in program spend on
the internally labeled “body contouring franchise” as part of a cost savings initiative
$2.8 million was spent on defense in 2018 of Cynosure’s products
Ultimately, this led to Hologic’s decision that preceded the first contact with
Goldman in January of 2019 to embark on Project Lotus which was the name given
to the project of selling the Cynosure business
For the sale of Cynosure, pro-forma financials for the Cynosure business were
prepared and presented to the ultimate buyer
The ultimate buyer noted a serious shortfall of actual against plan because of:
o Business underperformance relative to the original 2019 forecast with sales
shortfalls
o Continued instability in the United States, including ongoing attrition in
domestic salesforce
o Lower market growth assumptions
IV. Elizabeth Grady Subpoenas Hologic
Armed with documents showing significant distress in the Cynosure business as of 2018,
including early correspondence between Hologic and Goldman to discuss the faltering business,
Elizabeth Grady served a Rule 45 subpoena on Cynosure’s parent, Hologic. The Subpoena was
narrowly tailored to target documents relevant to the performance of the Cynosure business, and
the timing and content of Hologic’s and Cynosure’s managements’ discussions about the
performance of the business. Specifically, the Subpoena seeks among other things: (i) meeting
minutes that discuss Cynosure’s business performance and a possible sale of the business; (ii)
internal and external correspondence related to Hologic’s decision to sell the business and engage
8
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
an outside investment banking firm to assist in the sale; (iii) documents related to a purported
“comprehensive turnaround plan” that is reference in the Goldman documents; (iv) documents
related to revenues generated by Cynosure’s Icon and SculpSure machines; and (v) documents
related to Cynosure’s and/or Hologic’s marketing department and ability to provide marketing
support for Cynosure’s customers. See Exhibit A.
Hologic objected to the Subpoena on March 16, 2022.6 As part of its objection, Hologic
claimed that the sale of the Cynosure business was irrelevant, and that the Court’s prior ruling on
the Goldman subpoena limited its own obligations to respond to an entirely different subpoena.
As part of counsels’ Rule 9C discussions, Elizabeth Grady offered to accept a more narrow
production, including the supposed “turn around plan” and related documents, only to be informed
by Hologic’s counsel that “there is no document” and that the reference likely refereed to materials
created by (and in the possession of) Cynosure. The parties were unable to resolve their
disagreements during their Rule 9C discussions and Hologic has not produced any documents in
response to the Subpoena. This motion followed.
ARGUMENT
Under Mass. R. Civ. P. 45, a party may subpoena a non-party to obtain documents subject
to the scope and limitation of discovery as set forth under Rule 26. See Mass. R. Civ. P. 45(b) (“A
command in a subpoena to produce documents, electronically stored information, or tangible
things requires the responding person to permit inspection, copying, testing, or sampling of the
materials.”). A non-party may be required to produce particular items by way of a subpoena duces
tecum, as long as the item is still in the party’s possession, custody, or control at the time the
subpoena is served. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 548–49 (2002). If a
6
Hologic’s objection letter is attached as Exhibit B.
9
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
subpoenaed party objects, the party serving the subpoena “may move at any time upon notice to
the commanded person for an order compelling production or inspection.” See Mass. R. Civ. P.
45(d)(1). A motion for order compelling discovery is authorized by Rule 37(a) which provides in
relevant part: “[u]pon reasonable notice to other parties and all persons affected thereby, a party
may apply for an order compelling discovery.” See Mass. R. Civ. P. 37(a).
Hologic does not claim it has no responsive documents in its possession. Rather, Hologic
is refusing to produce documents that it argues are not relevant, based upon a (i) purposefully
contorted and narrow interpretation of the issues being litigated in this case, and (ii) a misplaced
reliance on this Court’s prior Order concerning the Goldman subpoena. As explained below, the
Court should overrule Hologic’s objections and order full compliance with the Subpoena.
I. The Subpoenaed Materials and Documents Are Relevant to the Claims Alleged
Hologic claims that since it was not involved in the alleged misrepresentations made by
Cynosure management in 2018, its decision to sell the Cynosure business in 2019 is irrelevant and
has no bearing on the suit. Yet the sale itself is not the issue; rather, Elizabeth Grady seeks
documents related to the underlying business reasons that ultimately brought Hologic to the
decision to sell its Cynosure business. The Goldman documents provide a sneak-peak of the
serious issues encountered by Cynosure as early as 2018, well before Cynosure approached
Elizabeth Grady about a potential partnership. Those documents show that Cynosure’s sales and
revenues were so far off target by 2018, that Cynosure and Hologic discussed and implemented
some type of “turnaround plan.” And it was Hologic – not Cynosure – that approached Goldman
in January of 2019 about “Project Lotus.”
All of this occurred at or around the time that Cynosure was representing to Elizabeth
Grady that its recent sales and marketing successes would lead to immediate and significant profits
10
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
for Elizabeth Grady. At the December 3, 2018 meeting, for example, Cynosure presented a healthy,
growing and optimistic outlook for the business, and projected sales revenues that Elizabeth Grady
could achieve based upon Cynosure’s success in marketing and selling its products, which
Cynosure said could be achieved with its sales and marketing support. Yet the reality was the
exact opposite. Cynosure’s sales and marketing staff were depleted and unable to deliver the
support as represented, and sales and revenues were significantly down and well below forecast,
painting a gloomy future for Cynosure’s place in the body sculpting market. Hologic likely has in
its possession many of the documents and materials that reflect the serious troubles encountered
by Cynosure, including documents that Hologic provided to Goldman and potential buyers of the
business (this could include, for example, documents and correspondence related to Project Lotus,
the turnaround plan, financial pro formas, and other key documents related to the performance of
the business). All of the records subpoenaed by Elizabeth Grady will likely reveal the big lie
peddled by Cynosure. The records are therefore directly relevant and must be produced
immediately.
In interpreting the scope of discovery under the Massachusetts Rules of Civil Procedure,
the SJC has defined “relevant” evidence to:
broadly to encompass any matter that bears on, or that reasonably could lead
to other matter that could bear on, any issue that is or may be in the case. …
Discovery is not limited to issues raised by the pleadings, for discovery
itself is designed to help define and clarify the issues. Nor is discovery
limited to the merits of a case, for a variety of fact-oriented issues may arise
during litigation that are not related to the merits.
Cronin v. Strayer, 392 Mass. 525, 534 (1984); Meyer v. King, 1995 WL 1312543 (Mass. Super.
Ct. 1995) (“Discovery should ordinarily be allowed under the concept of relevancy unless it is
clear that the information sought can have no possible bearing upon the subject matter of the
action.”). As noted, the materials requested here are directly related to the failures of Cynosure
11
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
business in 2018 and 2019. At that time, Cynosure was actively pursuing Elizabeth Grady to be
its partner while Hologic was internally discussing the future of its failing Cynosure business.
Ultimately, Hologic expressed its concerns externally with Goldman as early as January 14, 2019,
and subsequently gathered and provided Goldman with due diligence materials, financial pro
formas, and other Cynosure business records. All of this information will likely show when
Hologic recalculated what support it would provide to Cynosure’s business, and the materials are
therefore relevant to the claim that Cynosure and Thornal made knowingly false, incomplete,
and/or misleading statements to Elizabeth Grady, and having made those statements, failed at any
time to correct them. Ultimately, Elizabeth Grady only found out about Hologic’s abandonment
of Cynosure when the sale of Cynosure was announced in the press in November of 2019.
Denying Elizabeth Grady the opportunity to obtain these highly relevant documents would
put it at a substantial disadvantage and would be inconsistent with the general rule in the
Commonwealth that each party is entitled to receive relevant discovery concerning its claims or
defenses. See Strom v. American Honda Motor Co., 423 Mass. 330, 336 (1996) (acknowledging
that the discovery rules should be construed to allow “the parties to obtain the fullest possible
knowledge of the issues and facts before trial” rather than amounting to a “game of blindman’s
bluff”). Although Hologic is not a party to the case, Elizabeth Grady is permitted by the Rules to
seek discovery from Hologic, which it has done.
II. The Court’s Prior Order Related to the Goldman Subpoena is Inapplicable Here
Hologic also objects to the Subpoena on grounds that the Court’s prior ruling on the
Goldman subpoena should somehow limit its own discovery obligations. However, the Court’s
November 17, 2021 order is limited specifically to the document requests set forth in the Goldman
subpoena, and without a written decision elaborating on the ruling, no basis exists to apply the
12
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
decision to future discovery. Moreover, the Court did order Goldman to produce documents,
signaling a recognition that the sale of the Cynosure business was relevant to the case.
More importantly, the document requests set forth in the Hologic Subpoena are materially
different than what Elizabeth Grady sought from Goldman, and Hologic stands in an entirely
different position than Goldman. Here, Elizabeth Grady seeks business records related to the
performance of the Cynosure business, which are documents that Hologic should have in its
possession (as Cynosure’s former owner). Indeed, management for Hologic and Cynosure likely
had ongoing discussions concerning the state of the Cynosure business, its revenue projections and
forecasts, and whatever turnaround plan was implemented to improve those forecasts. These are
the types of documents that Elizabeth Grady is now seeking directly from Hologic. The Court’s
prior ruling on the Goldman subpoena therefore carries no weight here.
III. The Subpoena Is Narrowly Tailored and Does Not Unduly Burden Hologic
Under Rule 45, the court deciding a motion to compel compliance with a subpoena must
“protect a person who is neither a party nor a party’s officer from undue burden or expense
resulting from compliance.” See Mass. R. Civ. P. 45(d)(1). As explained above, the Subpoena is
narrowly tailored and focused on the state of affairs of the Cynosure business leading up to its sale
in 2019, and the discussions between Hologic, Cynosure and Goldman concerning a possible sale,
reorganization or other disposition of the business. Hologic (as Cynosure’s parent and the entity
making the decision to sell Cynosure) likely gathered many of these business documents as part
of its analysis in 2018 and 2019 of the Cynosure business, and it should not be a burden for Hologic
to now produce those documents. As such, the Court should order Hologic to produce the materials
without further delay.
13
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
CONCLUSION
For the reasons set forth herein, Elizabeth Grady respectfully requests that its Motion be
allowed, and that Hologic be ordered to produce all documents and materials responsive to each
document request set forth in the Subpoena within fourteen days of the Court’s Order.
ELIZABETH GRADY FACE FIRST INC.,
D/B/A THE ELIZABETH GRADY
COMPANY,
By its attorneys,
William A. Zucker, Esq., BBO No. 541240
Nicholas W. Allen, Esq., BBO No. 663409
McCarter & English, LLP
265 Franklin Street
Boston, MA 02110-3113
617.449.6500
wzucker@mccarter.com
nallen@mccarter.com
May 6, 2022
CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of May, 2022, a true copy of the above document was
served upon counsel of record for Defendants by email pursuant to and in compliance with the
applicable Supreme Judicial Court Order in re: COVID-19 (coronavirus) Pandemic, concerning
email service in cases under Rule 5(b) of Mass. Rules Civil Procedure.
Nicholas W. Allen
14
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
EXHIBIT A
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
EXHIBIT B
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Date Filed 5/26/2022 4:15 PM
Superior Court - Middlesex
Docket Number 2081CV02967
Preview
Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 37.1 5/26/2022 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT MIDDLESEX DIVISION ) ELIZABETH GRADY FACE FIRST INC. ) D/B/A THE ELIZABETH GRADY ) COMPANY, ) ) Plaintiff, ) ) v. C. A. No. 2081CV02967 ) ) CYNOSURE, INC. AND KEVIN ) THORNAL, ) ) Defendants. ) ) PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION TO COMPEL HOLOGIC, INC. TO COMPLY WITH SUBPOENA DUCES TECUM Plaintiff Elizabeth Grady Face First Inc., d/b/a The Elizabeth Grady Company (“Elizabeth Grady”), moves for an order compelling non-party Hologic, Inc. (“Hologic”), the former parent of Defendant Cynosure, Inc. (“Cynosure”), to produce documents and records in response to a validly served Rule 45 Subpoena Duces Tecum (the “Subpoena”).1 INTRODUCTION Through the Subpoena, Elizabeth Grady seeks documents from Cynosure’s former parent company, Hologic. The Subpoenaed records relate directly to (i) Hologic’s decision to sell the Cynosure business in 2019 at a steeply discounted price ($205 million), approximately two years FW after purchasing the business for $1.7 billion, and (ii) the performance during that time-period of 1 A copy of the Subpoena is attached hereto at Exhibit A. Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 the Cynosure business.2 In the interim, Cynosure’s management actively solicited business from Elizabeth Grady through affirmative representations about the state of its business, including that Cynosure was fully backed by its parent Hologic (a $4 billion public company at the time), and that Cynosure’s product sales and marketing successes and resources would generate significant profits for Elizabeth Grady. It was those representations (among others), made by Cynosure management in December of 2018, which induced Elizabeth Grady to enter into a supposed partnership with Cynosure, culminating in the execution of a Product Lease Agreement on January 10, 2019.3 This supposed partnership failed even before it could start, as Cynosure never delivered the support and resources it represented to Elizabeth Grady would be available. Elizabeth Grady would later learn through public filings that Hologic suffered significant revenue losses in 2018 in its “medical aesthetics” business (i.e., Cynosure). These records further showed that Hologic recognized, nearly immediately after purchasing Cynosure in 2017, that the Cynosure division was not profitable and that certain products had to be pulled from the market. Hologic reported those revenue losses in November of 2018, during the time that Cynosure was soliciting business with Elizabeth Grady. Ultimately, the roll-out of Cynosure’s products into Elizabeth Grady’s salons was an unmitigated disaster; Cynosure failed to provide the promised support, marketing or training; failed to drive new customers into the salons; and failed to demonstrate that its claimed revenue streams had any reality. The simple fact is that contrary to Cynosure’s representations, Hologic was no longer supporting the business but instead was looking to sell it. The result was 2 Hologic purchased Cynosure, a medical aesthetics business, in 2017 for $1.7 billion. Approximately two years later, in November 2019, Hologic sold the Cynosure business at the deeply discounted price of $205 million. 3 Through this Agreement, Cynosure leased to Elizabeth Grady its body sculpting equipment known as SculpSure and Icon. These machines were to be installed at Elizabeth Grady’s health and beauty salons throughout New England. Under the rental agreement, the parties were to share the revenue generated by the treatments performed by Elizabeth Grady through the Cynosure SculpSure and Icon devices. 2 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 that Elizabeth Grady suffered substantial losses due to the Defendants’ fraud, culminating in this lawsuit. Hologic is the former owner of the Cynosure business and undoubtedly is in possession of materials that are relevant to core issues being litigated, and which are subject to discovery under Rules 26 and 45. These issues include, for example: (i) when Hologic decided to sell its Cynosure business; (ii) the reason or reasons why Hologic decided to sell the business; and (iii) what was known by Cynosure’s and Hologic’s management about the state of the business during the key time-period when Cynosure was making affirmative representations to Elizabeth Grady about its product sales and marketing success. The Subpoena is narrowly directed at these types of records. To date, however, Elizabeth Grady’s discovery efforts have been countered with stiff resistance. Elizabeth Grady first sought records directly from Cynosure, yet Cynosure failed and refused to produce any records (even despite Elizabeth Grady’s offers for phased productions).4 Cynosure has relied on baseless objections to avoid its discovery obligations, including that responsive records are in the possession of its former parent company, Hologic. Now, Hologic objects to Elizabeth Grady’s Subpoena by claiming it is a stranger to this suit, and that it should not be required to produce documents that Elizabeth Grady can more easily obtain from Cynosure, its former subsidiary. Hologic further claims that the sale of its former Cynosure business is irrelevant to the claims being litigated. These coordinated circular objections lack merit and are improperly blocking Elizabeth Grady’s rights to obtain basic discovery, all while significantly increasing Elizabeth Grady’s litigation expenses and creating unnecessary motion practice requiring the attention of an already busy court. Elizabeth Grady is entitled to this discovery from Cynosure as well as third parties like Hologic, even if the discovery overlaps. 4 Elizabeth Grady continues to seek these responsive documents from Cynosure. 3 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Hologic also mistakenly argues that the Court’s prior margin order related to a subpoena served by Elizabeth Grady on Hologic’s investment banker, Goldman Sachs & Co. LLC (“Goldman”), somehow limits Hologic’s obligations to respond to this Subpoena. In that order (dated Nov. 17, 2021), the Court allowed Elizabeth Grady to obtain key documents from Goldman related to the sale of the Cynosure business and Goldman’s engagement by Hologic to facilitate the sale. While the Court made no findings and did not issue a written ruling, the Court precluded discovery of Goldman’s internal work product and analysis. Yet Goldman and Hologic stand in starkly different shoes, and that prior Order has no limiting affect here. Hologic owned Cynosure for two years, and was ostensibly involved in the management and oversight of the business, and the decision to sell the company. Hologic likely has in its possession a number of critical documents, including financial records, pro formas, meeting minutes, emails, and other business records directly related to this case, which Goldman would not have. As evidenced by its own written Rule 34 document responses, Cynosure agrees that Hologic is a viable source of information bearing directly on issues relevant to this case. As explained below, the Subpoena includes a narrowly drafted set of requests directly targeting core documents and issues in the case. Hologic’s interpretation of what is relevant and subject to discovery is groundless. The Court should therefore order Hologic to immediately produce all materials and documents responsive to the Subpoena. RELEVANT FACTS I. Brief Case Summary Through its First Amended Complaint, Elizabeth Grady asserts claims against Cynosure and its former president, Kevin Thornal, for common law fraud/misrepresentation, and violation of Chapter 93A. At the heart of this dispute lies a number of material misrepresentations and half- 4 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 truths peddled by Cynosure and its representatives to Elizabeth Grady during an aggressive offering in the fall of 2018. Cynosure solicited Elizabeth Grady to reshape its business, to lease certain of its body-countering devices, and to offer those services throughout Elizabeth Grady’s New England salon locations. Because of the misrepresentations, Elizabeth Grady agreed to “partner” with Cynosure and the parties signed a Product Lease Agreement on January 10, 2019. Prior to signing the Agreement, Thornal and others in Cynosure’s management, including Blake Ahitow, repeatedly claimed that this proposed partnership had the full backing and support of Cynosure’s parent, Hologic, a $4 billion publicly traded company at the time. In 2017, well prior to the execution of the parties’ Agreement, Hologic purchased the Cynosure business for nearly $1.7 billion. In the fall of 2019, however, Hologic sold the business at a steep loss, for a reported $205 million. Cynosure’s aggressive solicitation of Elizabeth Grady occurred in the last quarter of 2018, right in the middle of Hologic’s brief period of ownership of Cynosure. As part of its representations to Elizabeth Grady, Cynosure management presented Elizabeth Grady with what Cynosure claimed were established, achievable national sales data for its products. Cynosure and its representatives told Elizabeth Grady at a meeting on December 3, 2018, that these sales numbers would be achieved with the marketing support that Cynosure claimed it provided to its customers, and would provide to Elizabeth Grady. Cynosure stated that the parties would work together in a mutually-beneficial partnership, and that Cynosure was fully supported by its parent, Hologic, in these efforts. None of those representations turned out to be true. The conditions which caused the firesale of Cynosure in 2019 were already present, and show the representations made to Elizabeth Grady to be misrepresentations of fact. Elizabeth Grady filed suit on December 8, 2020, asserting claims for common law fraud and violation of M.G.L. Chapter 93A. 5 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 II. Elizabeth Grady’s Discovery Requests Are Met With Stiff, Coordinated Resistance Elizabeth Grady first sought discovery from Cynosure through Rule 34 document requests at the outset of the case. The focus of Elizabeth Grady’s early discovery was on key misrepresentations, including what Cynosure and Thornal knew in the fall of 2018 about Cynosure’s internal state of affairs and its national sales data and trends. Cynosure served responses and objections to Elizabeth Grady’s requests on February 19, 2021. More than a year later, Cynosure has still not produced any documents, despite Elizabeth Grady’s repeated offers to proceed with phased discovery focused first on core documents and issues. With Cynosure refusing to produce documents, Elizabeth Grady served a Rule 45 subpoena on Goldman on June 21, 2021. Elizabeth Grady served a second Rule 45 subpoena on Goldman on August 13, 2021.5 Goldman objected to the subpoenas and motion practice followed. Hologic also objected to the Goldman subpoena, claiming that the subpoenaed records were irrelevant, confidential and proprietary. Without a hearing, the Court issued a ruling on November 17, 2021, ordering Goldman to produce records responsive to some, but not all, of Elizabeth Grady’s document requests. Thereafter, Goldman began producing documents in January of 2022. III. Goldman Produces Documents that Evidence Significant Issues with the Cynosure Business The documents produced by Goldman show that the Cynosure business was severely underperforming its revenue projections in 2018, that a “comprehensive turnaround plan” was already in place by 2018, and that by mid-January 2019, Hologic had already approached Goldman 5 Through the subpoenas, Elizabeth Grady requested documents from Goldman that would show: (1) the date on which Hologic first began discussing a possible sale or restructuring of the Cynosure business; (2) underlying company data and financials (including sales data) that would show the reasons for the fire sale and that were used by Goldman and the buyer to value the Cynosure business; (3) any communications or discussions between the parties concerning Cynosure’s internal state of affairs and any factors prompting or contributing to Hologic’s decision to sell the business, and/or affecting the market value of the business and/or the anticipated or expected sale price of the company. 6 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 to discuss the Cynosure business. Hologic called this “Project Lotus.” Hologic made this initial contact with Goldman at or around the time that Cynosure was representing to Elizabeth Grady that it was fully backed by the strength of Hologic, and that Cynosure was experiencing significant sales and marketing success with its body sculpting products, including SculpSure. The Goldman documents painted a different picture, however. Contrary to Cynosure’s representations to Elizabeth Grady, the Goldman documents showed that: Cynosure had a “turnaround plan” in place in fiscal year 2019 (starting October 1, 2018); Cynosure’s performance, however, did not meet the turnaround plan The turnaround plan projected a continued loss of revenues in 2019 In fiscal year 2017 - 2018, body sculpting revenue decreased by $31 million In fiscal year, 2018 – 2019, body sculpting revenue decreased by another $8 million The turnaround plan projected another loss of revenue for body sculpting in 2019 of $8 million The turnaround plan projected softness in body sculpting revenues until a new body contouring platform launched in 2021 Earnings before income tax and depreciation (EBITDA) fell from 13.2% in 2016 to 1.7% in 2018 (after unaudited management adjustments) The United States was the primary market for body sculpting products Body sculpting was disproportionately impacted by the turnover of the domestic sales force (approximately 60 tenured US sales representatives or 33% of the US sales force left Cynosure after the Hologic acquisition) Sales model “fit” challenges under Hologic led to sales team disruptions and contraction Sales force turnover and decline in revenue pressured operating margins Body sculpting was also impacted by continued competition Other market headwinds in body sculpting contributed to the slowdown 7 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Because of problems in the field with SculpSure, Cynosure was in the process of developing a “guided mode” There was a planned cannibalization of SculpSure on a going forward basis with another new non-invasive body contouring devices so that SculpSure revenues were projected to decline There were cuts in marketing and changes in Cynosure’s marketing program and direction There was a decline in marketing expense due to a reduction in program spend on the internally labeled “body contouring franchise” as part of a cost savings initiative $2.8 million was spent on defense in 2018 of Cynosure’s products Ultimately, this led to Hologic’s decision that preceded the first contact with Goldman in January of 2019 to embark on Project Lotus which was the name given to the project of selling the Cynosure business For the sale of Cynosure, pro-forma financials for the Cynosure business were prepared and presented to the ultimate buyer The ultimate buyer noted a serious shortfall of actual against plan because of: o Business underperformance relative to the original 2019 forecast with sales shortfalls o Continued instability in the United States, including ongoing attrition in domestic salesforce o Lower market growth assumptions IV. Elizabeth Grady Subpoenas Hologic Armed with documents showing significant distress in the Cynosure business as of 2018, including early correspondence between Hologic and Goldman to discuss the faltering business, Elizabeth Grady served a Rule 45 subpoena on Cynosure’s parent, Hologic. The Subpoena was narrowly tailored to target documents relevant to the performance of the Cynosure business, and the timing and content of Hologic’s and Cynosure’s managements’ discussions about the performance of the business. Specifically, the Subpoena seeks among other things: (i) meeting minutes that discuss Cynosure’s business performance and a possible sale of the business; (ii) internal and external correspondence related to Hologic’s decision to sell the business and engage 8 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 an outside investment banking firm to assist in the sale; (iii) documents related to a purported “comprehensive turnaround plan” that is reference in the Goldman documents; (iv) documents related to revenues generated by Cynosure’s Icon and SculpSure machines; and (v) documents related to Cynosure’s and/or Hologic’s marketing department and ability to provide marketing support for Cynosure’s customers. See Exhibit A. Hologic objected to the Subpoena on March 16, 2022.6 As part of its objection, Hologic claimed that the sale of the Cynosure business was irrelevant, and that the Court’s prior ruling on the Goldman subpoena limited its own obligations to respond to an entirely different subpoena. As part of counsels’ Rule 9C discussions, Elizabeth Grady offered to accept a more narrow production, including the supposed “turn around plan” and related documents, only to be informed by Hologic’s counsel that “there is no document” and that the reference likely refereed to materials created by (and in the possession of) Cynosure. The parties were unable to resolve their disagreements during their Rule 9C discussions and Hologic has not produced any documents in response to the Subpoena. This motion followed. ARGUMENT Under Mass. R. Civ. P. 45, a party may subpoena a non-party to obtain documents subject to the scope and limitation of discovery as set forth under Rule 26. See Mass. R. Civ. P. 45(b) (“A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding person to permit inspection, copying, testing, or sampling of the materials.”). A non-party may be required to produce particular items by way of a subpoena duces tecum, as long as the item is still in the party’s possession, custody, or control at the time the subpoena is served. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 548–49 (2002). If a 6 Hologic’s objection letter is attached as Exhibit B. 9 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 subpoenaed party objects, the party serving the subpoena “may move at any time upon notice to the commanded person for an order compelling production or inspection.” See Mass. R. Civ. P. 45(d)(1). A motion for order compelling discovery is authorized by Rule 37(a) which provides in relevant part: “[u]pon reasonable notice to other parties and all persons affected thereby, a party may apply for an order compelling discovery.” See Mass. R. Civ. P. 37(a). Hologic does not claim it has no responsive documents in its possession. Rather, Hologic is refusing to produce documents that it argues are not relevant, based upon a (i) purposefully contorted and narrow interpretation of the issues being litigated in this case, and (ii) a misplaced reliance on this Court’s prior Order concerning the Goldman subpoena. As explained below, the Court should overrule Hologic’s objections and order full compliance with the Subpoena. I. The Subpoenaed Materials and Documents Are Relevant to the Claims Alleged Hologic claims that since it was not involved in the alleged misrepresentations made by Cynosure management in 2018, its decision to sell the Cynosure business in 2019 is irrelevant and has no bearing on the suit. Yet the sale itself is not the issue; rather, Elizabeth Grady seeks documents related to the underlying business reasons that ultimately brought Hologic to the decision to sell its Cynosure business. The Goldman documents provide a sneak-peak of the serious issues encountered by Cynosure as early as 2018, well before Cynosure approached Elizabeth Grady about a potential partnership. Those documents show that Cynosure’s sales and revenues were so far off target by 2018, that Cynosure and Hologic discussed and implemented some type of “turnaround plan.” And it was Hologic – not Cynosure – that approached Goldman in January of 2019 about “Project Lotus.” All of this occurred at or around the time that Cynosure was representing to Elizabeth Grady that its recent sales and marketing successes would lead to immediate and significant profits 10 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 for Elizabeth Grady. At the December 3, 2018 meeting, for example, Cynosure presented a healthy, growing and optimistic outlook for the business, and projected sales revenues that Elizabeth Grady could achieve based upon Cynosure’s success in marketing and selling its products, which Cynosure said could be achieved with its sales and marketing support. Yet the reality was the exact opposite. Cynosure’s sales and marketing staff were depleted and unable to deliver the support as represented, and sales and revenues were significantly down and well below forecast, painting a gloomy future for Cynosure’s place in the body sculpting market. Hologic likely has in its possession many of the documents and materials that reflect the serious troubles encountered by Cynosure, including documents that Hologic provided to Goldman and potential buyers of the business (this could include, for example, documents and correspondence related to Project Lotus, the turnaround plan, financial pro formas, and other key documents related to the performance of the business). All of the records subpoenaed by Elizabeth Grady will likely reveal the big lie peddled by Cynosure. The records are therefore directly relevant and must be produced immediately. In interpreting the scope of discovery under the Massachusetts Rules of Civil Procedure, the SJC has defined “relevant” evidence to: broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. … Discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits. Cronin v. Strayer, 392 Mass. 525, 534 (1984); Meyer v. King, 1995 WL 1312543 (Mass. Super. Ct. 1995) (“Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of the action.”). As noted, the materials requested here are directly related to the failures of Cynosure 11 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 business in 2018 and 2019. At that time, Cynosure was actively pursuing Elizabeth Grady to be its partner while Hologic was internally discussing the future of its failing Cynosure business. Ultimately, Hologic expressed its concerns externally with Goldman as early as January 14, 2019, and subsequently gathered and provided Goldman with due diligence materials, financial pro formas, and other Cynosure business records. All of this information will likely show when Hologic recalculated what support it would provide to Cynosure’s business, and the materials are therefore relevant to the claim that Cynosure and Thornal made knowingly false, incomplete, and/or misleading statements to Elizabeth Grady, and having made those statements, failed at any time to correct them. Ultimately, Elizabeth Grady only found out about Hologic’s abandonment of Cynosure when the sale of Cynosure was announced in the press in November of 2019. Denying Elizabeth Grady the opportunity to obtain these highly relevant documents would put it at a substantial disadvantage and would be inconsistent with the general rule in the Commonwealth that each party is entitled to receive relevant discovery concerning its claims or defenses. See Strom v. American Honda Motor Co., 423 Mass. 330, 336 (1996) (acknowledging that the discovery rules should be construed to allow “the parties to obtain the fullest possible knowledge of the issues and facts before trial” rather than amounting to a “game of blindman’s bluff”). Although Hologic is not a party to the case, Elizabeth Grady is permitted by the Rules to seek discovery from Hologic, which it has done. II. The Court’s Prior Order Related to the Goldman Subpoena is Inapplicable Here Hologic also objects to the Subpoena on grounds that the Court’s prior ruling on the Goldman subpoena should somehow limit its own discovery obligations. However, the Court’s November 17, 2021 order is limited specifically to the document requests set forth in the Goldman subpoena, and without a written decision elaborating on the ruling, no basis exists to apply the 12 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 decision to future discovery. Moreover, the Court did order Goldman to produce documents, signaling a recognition that the sale of the Cynosure business was relevant to the case. More importantly, the document requests set forth in the Hologic Subpoena are materially different than what Elizabeth Grady sought from Goldman, and Hologic stands in an entirely different position than Goldman. Here, Elizabeth Grady seeks business records related to the performance of the Cynosure business, which are documents that Hologic should have in its possession (as Cynosure’s former owner). Indeed, management for Hologic and Cynosure likely had ongoing discussions concerning the state of the Cynosure business, its revenue projections and forecasts, and whatever turnaround plan was implemented to improve those forecasts. These are the types of documents that Elizabeth Grady is now seeking directly from Hologic. The Court’s prior ruling on the Goldman subpoena therefore carries no weight here. III. The Subpoena Is Narrowly Tailored and Does Not Unduly Burden Hologic Under Rule 45, the court deciding a motion to compel compliance with a subpoena must “protect a person who is neither a party nor a party’s officer from undue burden or expense resulting from compliance.” See Mass. R. Civ. P. 45(d)(1). As explained above, the Subpoena is narrowly tailored and focused on the state of affairs of the Cynosure business leading up to its sale in 2019, and the discussions between Hologic, Cynosure and Goldman concerning a possible sale, reorganization or other disposition of the business. Hologic (as Cynosure’s parent and the entity making the decision to sell Cynosure) likely gathered many of these business documents as part of its analysis in 2018 and 2019 of the Cynosure business, and it should not be a burden for Hologic to now produce those documents. As such, the Court should order Hologic to produce the materials without further delay. 13 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 CONCLUSION For the reasons set forth herein, Elizabeth Grady respectfully requests that its Motion be allowed, and that Hologic be ordered to produce all documents and materials responsive to each document request set forth in the Subpoena within fourteen days of the Court’s Order. ELIZABETH GRADY FACE FIRST INC., D/B/A THE ELIZABETH GRADY COMPANY, By its attorneys, William A. Zucker, Esq., BBO No. 541240 Nicholas W. Allen, Esq., BBO No. 663409 McCarter & English, LLP 265 Franklin Street Boston, MA 02110-3113 617.449.6500 wzucker@mccarter.com nallen@mccarter.com May 6, 2022 CERTIFICATE OF SERVICE I hereby certify that on this 6th day of May, 2022, a true copy of the above document was served upon counsel of record for Defendants by email pursuant to and in compliance with the applicable Supreme Judicial Court Order in re: COVID-19 (coronavirus) Pandemic, concerning email service in cases under Rule 5(b) of Mass. Rules Civil Procedure. Nicholas W. Allen 14 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 EXHIBIT A Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 EXHIBIT B Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967 Date Filed 5/26/2022 4:15 PM Superior Court - Middlesex Docket Number 2081CV02967