Motion to Compel Discovery in Elizabeth Grady Face First, Inc. D/B/A The Elizabeth Grady Company vs. Cynosure, Inc. et al| Trellis.Law

On December 08, 2020 a Party Discovery was filed involving a dispute between Elizabeth Grady Face First, Inc. D B A The Elizabeth Grady Company, and Ahitow, Blake, Cynosure, Inc., Thornal, Kevin, for Torts in the District Court of Middlesex County.

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Date Filed 5/31/2022 8:12 PM
Superior Court - Middlesex
Docket Number 2081CV02967 38.3

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, CIVIL ACTION NO. 2081-CV-02967

CYNOSURE, INC., and
KEVIN THORNAL,
5/31/2022
Defendants.

REPLY BRIEF IN SUPPORT OF DEFENDANT CYNOSURE, LLC’S MOTION TO
COMPEL PRODUCTION RESPONSIVE TO THE FIRST SET OF REQUESTS FOR
PRODUCTION AND OPPOSITION TO PLAINTIFF’S CROSS-MOTION TO COMPEL
PRODUCTION OF DOCUMENTS

Through this consolidated memorandum, Defendant Cynosure, LLC (“Cynosure”) hereby

(1) Replies in support of its Motion to Compel and (2) Opposes Plaintiff’s cross-motion to compel

production of documents from Cynosure.

First, Plaintiff offers no opposition to Cynosure’s Motion to Compel other than arguing

that the motion is moot because – after many months – Plaintiff has finally started its production.

But given Plaintiff’s history of delay, Cynosure has no assurance that Plaintiff’s production will

be timely completed. To date, Plaintiff has made only a single production of 2,206 documents,

and only after Cynosure served its motion to compel. Indeed, Cynosure proposed to resolve

Cynosure’s Motion to Compel if Plaintiff would agree to make a substantial production of

documents by May 23, 2022 and to complete productions by June 1, 2022. See Pltf. May 18 Br.,

Ex. E at PDF p. 116 (draft stipulation). Plaintiff declined. The Court should accordingly enter an

JB
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Docket Number 2081CV02967

order compelling Plaintiff to substantially complete its production no later than fifteen days after

entry of this Court’s order. See Ex. 4 (Cynosure’s Proposed Order).

Second, Plaintiff’s attempt to point the finger at Cynosure by filing a cross-motion to

compel is a transparent attempt to distract from its own failings. In fact, as of the date of this filing,

Cynosure has produced more than 23,000 pages of documents, anticipates that it will substantially

complete its production by June 16, 2022, and has no objection to the Court entering an order

setting such a schedule for Cynosure’s substantial completion of production.

While Cynosure agrees to a substantial completion date as set out above, it must set the

record straight: the narrative that Plaintiff spins about Cynosure’s supposed delinquency is utterly

false. To start with, Cynosure timely responded to Plaintiff’s discovery requests. See Ex. 3

(Cynosure’s February 19, 2021 Objections and Response to Plaintiff’s First Request for

Documents). As is common in document-intensive cases, Cynosure proposed at that time to

collect documents using a “custodial” approach, and identified from the beginning the specific

custodians whose files it proposed to search. See generally id. (proposing, for example, the

following custodians: Kevin Thornal (Cynosure’s President), Blake Ahitow (National Sales

Account Director), Scott Dupont (New England Regional District Sales Manager), and Andrea

Morrison (Manager of Clinical Services)).

During a March 24, 2021 meet and confer, Plaintiff stated that it had concerns with

Cynosure’s proposed custodians and agreed to make a counterproposal before Cynosure started

productions. See Ex. 1 (J. Wiesner March 15, 2022 email). No counterproposal came. Id.

Cynosure then repeatedly asked Plaintiff to provide its counterproposal so that Cynosure could

begin productions, sending follow up correspondence on April 26, 2021 and June 8, 2021. Id.

Plaintiff did not respond. Id.

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Docket Number 2081CV02967

It was only in January of 2022, after the Court’s ruling denying Cynosure’s motion to

dismiss, that Plaintiff asked for a meet and confer. In response, Cynosure promptly agreed and

proposed a specific date. Id. Plaintiff declined that date, and then repeatedly failed to respond to

Cynosure’s multiple follow up requests to meet and confer—on February 17, 2022, February 23,

2022, and March 8, 2022. Id. The record thus shows that Cynosure virtually begged Plaintiff to

resolve these threshold issues, but was met with silence.

With Plaintiff refusing to engage, on March 15, 2022, Cynosure informed Plaintiff that it

was simply going to proceed unilaterally with producing documents using its proposed list of

custodians and search terms. Id. Only then did Plaintiff finally respond. See Ex. 2 at PDF p. 13

(N. Allen March 24, 2022 email).

But in doing so, Plaintiff made an entirely new proposal for the first time, informally

requesting certain categories of documents to be produced which did not match up with Plaintiff’s

initial document requests. Id. Trying to reach agreement, Cynosure promptly provided a

counterproposal on April 4, 2022. Id. at PDF p. 9 (J. Wiesner April 4, 2022 email). But again,

Plaintiff did not respond, requiring yet another follow up from Cynosure. Id. at PDF p. 8 (J.

Wiesner April 13, 2022 email).

On April 29, 2022, still having received no counterproposal, Cynosure once again informed

Plaintiff that it would simply proceed unilaterally in accordance with its proposal. Id. at PDF p. 7

(J. Wiesner April 29, 2022 email). And again, only when faced with the prospect of unilateral

action, did Plaintiff respond. Id. at PDF p. 7 (N. Allen April 29, 2022 email).

On May 6, 2022, Plaintiff finally provided its counterproposal. Id. at PDF p. 5 (N. Allen

May 6, 2022 email). But Plaintiff again changed the game. Id. Rather than respond to Cynosure’s

counterproposal, Plaintiff made new informal requests. Id. Despite this constantly shifting

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landscape, Cynosure largely agreed to Plaintiff’s new proposed terms. Cynosure responded that

same day, agreeing to “conduct a reasonable search for and produce documents responsive to the”

narrowed categories from Plaintiff’s May 6, 2022 email. See id. at PDF p. 4 (J. Wiesner May 6,

2022 email).

Believing the parties finally had an agreement on the scope and timing of productions, but

worried about the timeliness of Plaintiff’s production, Cynosure then proposed a stipulation setting

a deadline by when Plaintiff would complete its production. See id. at PDF p. 2 (J. Wiesner May

11, 2022 email); see also Pltf. May 18 Br., Ex. E at PDF p. 116 (draft stipulation). Rather than

respond, Plaintiff ignored the proposed stipulation—and instead served a cross-motion to compel.

Even in its cross-motion, Plaintiff changes and expands what it asks for. Plaintiff now

seeks:

(i) all documents responsive to Elizabeth Grady’s narrowed requests set forth in its
May 6, 2022 email, (ii) a second production of all documents responsive to
Elizabeth Grady’s requests set forth in its March 24, 2022 email, and (iii) finally, a
production to include any and all remaining documents which Cynosure agreed to
produce in its original Response which have not yet been produced.

Pltf. May 18 Br. at 12. In other words, Plaintiff wants Cynosure to respond not to one of its

iterative and different proposals, but to all of them. That is so even though there is no authority to

compel a party to produce documents in response to informal requests set out in email. Plaintiff

also fails to acknowledge, much less justify, the sweeping breadth of the categories of documents

informally requested in its March 24, 2022 e-mail, which – in Plaintiff’s words – seek “meeting

minutes, financial records, pro formas, emails, and other relevant documents” relating to “the state

of the affairs of the Cynosure business in 2018 and 2019.” Pltf. May 18 Br. at 11. Nor does

Plaintiff make any effort to explain why Cynosure’s proposal to narrow those requests, including

through the use of appropriate search terms and custodians, is inadequate. See Ex. 2 at PDF p. 9

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Docket Number 2081CV02967

(J. Wiesner April 4, 2022 email) (Cynosure’s proposal in response to the March 24 request); id. at

PDF p. 4 (J. Wiesner May 6, 2022 email) (Cynosure’s proposal in response to the May 6 request).

Nevertheless, in the interests of avoiding dispute, Cynosure is willing to produce the

documents that it informally agreed to produce in response to Plaintiff’s March 24 and May 6 e-

mails, using the search criteria proposed in response to each of those requests, by the substantial

completion date set out above, as well as the documents responsive to Plaintiff’s First Request for

Production that Cynosure also previously agreed to produce in its Responses to that Request.1

Cynosure has attached a Proposed Order for the Court that proposes a deadline by which Plaintiff

should substantially complete its production of documents, and a deadline by which Cynosure will

substantially complete its agreed-upon production. See Ex. 4. Cynosure respectfully asks this

Court to enter its Proposed Order.

Dated: May 31, 2022 Respectfully submitted,

/s/ Michael J. Pineault
Michael Pineault (BBO No. 555314)
ANDERSON & KREIGER LLP
50 Milk Street, 21st Floor
Boston, MA 02109
mpineault@andersonkreiger.com
T: +1 617.621.6578
F: +1 617.621.6619

Daniel S. Pariser (pro hac vice)
Jocelyn A. Wiesner (pro hac vice)
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, D.C. 20001
daniel.pariser@arnoldporter.com
jocelyn.wiesner@arnoldporter.com

1
Plaintiff has not sought to overrule any of Defendant’s objections to the First Request for Production. Nor has it
asked for the Court to adopt any alternative search term or custodian list, since Plaintiff has never supplied such a
proposal. To be clear, therefore, Cynosure is not agreeing to produce documents beyond what it has expressly agreed
to produce using the search terms and custodians previously identified. Cynosure would strongly object to any attempt
by Plaintiff to expand the scope of Cynosure’s production obligations beyond those documents identified.
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Docket Number 2081CV02967

T: +1 202.942.5000
F: +1 202.942.5999

Counsel for Defendant Cynosure, LLC

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document was served upon the following
counsel of record for the parties by e-mail on May 31, 2022:

William A. Zucker (BBO No. 541230)
Nicholas W. Allen (BBO No. 663409)
MCCARTER & ENGLISH, LLP
265 Franklin Street,
Boston, MA 02110-3113
T: +1 617.449.6500
wzucker@mccarter.com
nallen@mccarter.com

Peter Gelhaar
Daniel Tighe
DONNELLY, CONROY & GELHAAR, LLP
260 Franklin Street, Suite 1600
T: +1 617.720.2880
peg@dcglaw.com
dpt@dcglaw.com

/s/ Michael J. Pineault
Michael J. Pineault

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Superior Court - Middlesex
Docket Number 2081CV02967

Exhibit 1
Date Filed 5/31/2022 8:12 PM
Superior Court - Middlesex
Docket Number 2081CV02967

From: Wiesner, Jocelyn
To: Allen, Nicholas; Zucker, William
Cc: Michael J. Pineault; Pariser, Daniel; Morris, Henry B.
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline
Date: Tuesday, March 15, 2022 3:06:24 PM

Nick:

Thank you for your response. However, we must correct your misstatement of the facts concerning
the status of Cynosure’s production of documents.

As you know, Cynosure’s February 19, 2021 discovery responses indicated that it would search for
responsive documents using appropriately tailored search terms from the custodial files of Kevin
Thornal, Blake Ahitow, Austin Monroe, Scott Dupont, Andrea Morrison, and James Palastra. During
our March 24, 2021 Meet and Confer, however, you stated that you had concerns with our
responses and proposed custodians. We accordingly asked that you provide us with a list of
custodians for our consideration and identify any specific RFPs over which you had concerns. See
March 5, 2021. We reminded you on several occasions since then that we were awaiting your
feedback. April 26, 2021 Email from J. Wiesner (offering to meet and confer and reminding Mr.
Zucker that, “we had understood from our last meet and confer that Plaintiff was going to propose a
list of custodians for our consideration and would identify any specific RFPs over which it had
concerns”); June 8, 2021 Email from J. Wiesner (“we look forward to hearing from you regarding a
proposed list of document custodians and any specific RFPs over which you have concerns”). See
also April 30, 2021 Email from W. Zucker (“I agree that it would be helpful to propose a list of
custodians for consideration.”). To date, months later, we have yet to receive any such custodian list
despite our repeated offers to meet and confer.

Indeed, in opposition to our motion to compel discovery responses you similarly mischaracterized
the status of discovery to the Court. Aug. 18, 2021 Opp’n at 5-6 (asserting that Cynosure has
“resisted [discovery] efforts,” “continued to obstruct,” and “rejected any and all offers to streamline
discovery on key issues”). Our reply brief directly responded to this stating, “[i]n June, Cynosure
asked Plaintiff to identify any issues with Cynosure’s discovery responses and to propose a list of
custodians whose files Cynosure should search. Plaintiff never responded.” See Aug. 30, 2021 Reply
ISO Mot. to Compel at 2 and Ex. 2 (emails between counsel). Plaintiff made no effort to identify
custodians even following that Reply.

You finally asked for a meet and confer concerning Defendants’ discovery responses back in January.
In response, we agreed to meet and confer and suggested a date. See January 25, 2022 Email from
J. Wiesner (offering Thursday or Friday at 9am for a meet and confer). You declined. See January
25, 2022 Email from W. Zucker (“Neither time will work . . . . Let me suggest some times next
week.”). Since then, you have repeatedly failed to respond or provide any dates for a meet and
confer despite our repeated attempts to schedule a call. See February 17, 2022, February 23, 2022,
and March 8, 2022 Emails from J. Wiesner.

In light of this history, and in the interests of moving discovery forward, we intend to go forward
with our document productions using our proposed list of custodians. In addition, we will search
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Docket Number 2081CV02967

such custodial files using the below list of search terms:

“Elizabeth Grady”; or
“elizabethgrady.com”; or
Walsh w/3 John
Carla w/3 Ringdahl
Kristin w/3 Salerno
Kathy w/3 Denicola
Cate w/3 Tool
Delli-Bovi

If you have any objection to us proceeding in this fashion, let us know by this Friday.

In addition, there is no basis for your position that Plaintiff will produce documents only after
Cynosure makes a “good faith production.” Again, Cynosure has consistently and repeatedly sought
to meet and confer with Plaintiff in order to narrow discovery disputes so that it can begin document
production. Its delay in production is the result only of Plaintiff’s refusal to engage. We therefore
respectfully insist that Plaintiff begin producing responsive documents as soon as they are available,
and, in any event, no later than March 28, 2022. We also ask again that you provide an estimated
date by when we can expect production to be completed.

Finally, with respect to RFP Nos. 2-6, 12-14, 20-21, and 23, Cynosure continues to object to the
relevance of these documents. That said, in the interests of compromise and without waiver of its
objections, we will not withhold responsive documents to the extent that they are located using the
aforementioned search terms in the agreed upon custodial files.

Thank you,
Jocelyn

_______________
Jocelyn A. Wiesner
Senior Associate

Cc: Michael J. Pineault ; Pariser, Daniel
; Morris, Henry B.
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline
Date Filed 5/31/2022 8:12 PM
Superior Court - Middlesex
Docket Number 2081CV02967

Exhibit 2
Date Filed 5/31/2022 8:12 PM
Superior Court - Middlesex
Docket Number 2081CV02967

From: Wiesner, Jocelyn
To: Allen, Nicholas; Zucker, William
Cc: Michael J. Pineault; Pariser, Daniel; Morris, Henry B.; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline
Date: Wednesday, May 11, 2022 8:21:14 PM
Attachments: 2022-5-11 - Joint Stipulation re. Production Schedule_(US_171919622_4).DOCX
image001.png

Nick --

I am attaching here a draft stipulation. Please let us know if you agree and we’ll get it on file.

Thanks,
Jocelyn

_______________
Jocelyn A. Wiesner
Senior Associate

Arnold & Porter
601 Massachusetts Ave., NW
Washington | District of Columbia 20001-3743
T: +1 202.942.5810
Jocelyn.Wiesner@arnoldporter.com | www.arnoldporter.com
From: Allen, Nicholas
Sent: Tuesday, May 10, 2022 2:18 PM
To: Wiesner, Jocelyn ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

External E-mail

Thank you Jocelyn. Provided the proposed stipulation is mutual, that is fine with us. I think at this point all parties
should be focused on moving discovery forward in a timely/efficient manner. Please let us know.

Thanks,
Nick

From: Wiesner, Jocelyn
Sent: Tuesday, May 10, 2022 1:23 PM
To: Allen, Nicholas ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

**External Message**

Nick:

We will agree to withdraw our second motion to compel (sent to you on April 29) if you commit to the following:
(1) agree that you will make a substantial initial production on May 23rd; (2) agree to a concrete end date for
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Docket Number 2081CV02967

rolling productions to be completed; and (3) memorialize this agreement and time frame in a joint stipulation to
be submitted to the Court. Otherwise, we will continue to press the motion. We will agree to give you your
initially requested extension of slightly over one week until Wednesday, May 18 to file your opposition, which was
originally due on Monday, May 9th. We are not willing to further extend the deadline unless we can reach such an
agreement to withdraw the motion.

As to production of Cynosure documents, we are under no obligation to produce the documents on the same date
that Plaintiff is to begin its production, and there is no basis for any suggestion that Plaintiff may wait to produce
documents until Cynosure begins its production. As we have clearly set out in our motion to compel, we have
been asking plaintiffs to produce documents for months to no avail. In contrast, Plaintiff has been continually
shifting its requests of Cynosure and we only received your latest proposal on May 6th.

That said, we are not interested in delay and want to move discovery forward in this case. To that end, we believe
that we can begin production of the materials described in my email from May 6, of the categories of “particular
emphasis,” on May 23rd and will continue rolling productions thereafter.

Thank you,
Jocelyn

_______________
Jocelyn A. Wiesner
Senior Associate

Arnold & Porter
601 Massachusetts Ave., NW
Washington | District of Columbia 20001-3743
T: +1 202.942.5810
Jocelyn.Wiesner@arnoldporter.com | www.arnoldporter.com
From: Allen, Nicholas
Sent: Monday, May 9, 2022 4:05 PM
To: Wiesner, Jocelyn ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

External E-mail

Jocelyn,

Thank you for the response. I would suggest at this point that we agree to a mutual exchange of documents on
May 23rd. We are currently reviewing documents and should have a first production available on that date. We
will likely have subsequent productions as well. Can you commit to producing our narrowed request, set forth in
my email from 5/5, by or before the 23rd?

As for your motion to compel, assuming you are in agreement with the above proposal, we would respectfully
request that you withdraw the motion (without prejudice to being re-served) or agree to hold it in abeyance for
the time being. If you wish to proceed with the motion, may we have until Wednesday May 18th as a response
date? I am travelling on May 16th and will need the extra days to finalize a response.
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Docket Number 2081CV02967

Please let us know how you would like to proceed.

Thank you,

Nick

From: Wiesner, Jocelyn
Sent: Friday, May 6, 2022 10:21 PM
To: Allen, Nicholas ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

**External Message**

Nick,

We disagree with your characterization of our proposal. We sent that proposal a month ago. Today, for the first
time, you are saying that you do not have sufficient information to respond, despite having had our proposal for
one month. Moreover, you’ve responded today with yet again a new proposal entirely.

That said, in an effort to move discovery forward, we are willing to conduct a reasonable search for and produce
documents responsive to the categories you describe as of “particular emphasis,” specifically: (i) the PowerPoint
presented to Elizabeth Grady management on Dec. 3, 2018; (ii) drafts or other iterations of the PowerPoint; (iii)
the underlying data relied upon Cynosure in preparing the PowerPoint; (iv) internal Cynosure communications
about the PowerPoint and the data being used to create the PowerPoint; and (v) actual point of sale data
(revenues per machine placement) for SculpSure and Icon for 2017 and 2018 per sales region in the United States
together with any management reports discussing such sales and data trends.

To be clear, some of this information may be located in reasonably accessible, centralized locations. However,
other of the information may only reasonably be identified using search terms applied to the relevant custodians
to cull the documents for manual review. It appears that you are not interested in engaging in a discussion about
search terms and custodians. Accordingly, we will apply search terms that we believe are appropriate and
reasonable in scope to cull the documents, and will run those terms on all custodians whom we have identified as
having material involvement in the pertinent matters (which will include but not be limited to Mssrs. Thornal and
Ahitow). If we are mistaken and you wish to discuss search terms and custodians, let us know no later than this
coming Tuesday.

Regarding our motion to compel, and your extension request, your reply is presently due Monday, May 9. We will
agree to a one-week extension request, so long as you tell us by Monday, May 9, a concrete date by which you will
produce the requested documents. We have been very patient but are not inclined to provide an extension on the
briefing if we still cannot get a production deadline from you, as doing so will merely delay the production further.

Thank you,
Jocelyn

_______________
Jocelyn A. Wiesner
Senior Associate

Arnold & Porter
Date Filed 5/31/2022 8:12 PM
Superior Court - Middlesex
Docket Number 2081CV02967

601 Massachusetts Ave., NW
Washington | District of Columbia 20001-3743
T: +1 202.942.5810
Jocelyn.Wiesner@arnoldporter.com | www.arnoldporter.com
From: Allen, Nicholas
Sent: Friday, May 6, 2022 9:24 AM
To: Wiesner, Jocelyn ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

External E-mail

Jocelyn,

I apologize for the delay in responding to your email, but as you now know, McCarter & English experienced a
security breach in mid-April that caused the shutdown of all firm IT systems. Those systems have only slowly come
back online, and I emailed you when I finally got access to my emails. The security breach unfortunately occurred
as we were preparing a response to your email of April 4.

First, we appreciate that while you have claimed that the seven specific requests that we made were not part of
our original document request, you have responded to them directly as if they’re separate document requests.
We obviously disagree, and as we’ve said previously, we view them as simply targeting categories of documents
that were all within our original requests. The problem that we have is that the scope of your proposed search
with respect to each one, which is limited to the email files of Thornal or Ahitow with the search terms “Goldman
or GS.com or ‘Project Lotus’” or other similar constraints, is much too narrow and will fail to capture a large
volume of responsive material. For example, your response makes no effort to incorporate materials from
Cynosure’s finance, marketing, or sales departments, or from other Cynosure representatives who were at the
critical meeting on December 3, 2018, and were part of management at Cynosure and Hologic at that time. We
are not in a position to know where all the materials that may be responsive are located within Cynosure or
Hologic, and for that reasons we asked on March 24th if you would be willing to provide a Cynosure organizational
chart or similar document from 2018 (see earlier emails in this email chain). I do not see that you responded to
that request. It is Cynosure’s burden to search its records for responsive materials. Our earlier email addressed
seven categories of documents within the first tranche of production and our willingness to limit the initial
production to “Cynosure’s management level of custodians.” Given the limited nature of our proposed requests,
we do not see how that would impose any undue burden on Cynosure, as the requests are specific and the time
period is limited. We repeat that it is Cynosure’s burden to locate, identify and produce the records. Without
knowing more about Cynosure’s internal structure at that time, we are not in a position to agree upon limited
custodians and certainly cannot agree upon the proposed narrow restrictions communicated in your April 4th
email.

Having said that, upon further consideration, we are willing to narrow even further our current request, with the
focus directed at the PowerPoint presented to Elizabeth Grady on Dec. 3, 2018, and Cynosure management’s
knowledge of the restructuring of its medical aesthetics business. As you know, that original PowerPoint and all
drafts or other iterations are the subject of our initial requests for production, yet Cynosure has not produced this
document or any related materials. To further simplify the process and to move discovery forward, we would
request that Cynosure produce in its first tranche of documents the documents requested in points three and four
of our March 24th email below, with particular emphasis on: (i) the PowerPoint presented to Elizabeth Grady
management on Dec. 3, 2018; (ii) drafts or other iterations of the PowerPoint; (iii) the underlying data relied upon
Cynosure in preparing the PowerPoint; (iv) internal Cynosure communications about the PowerPoint and the data
being used to create the PowerPoint; and (v) actual point of sale data (revenues per machine placement) for
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Docket Number 2081CV02967

SculpSure and Icon for 2017 and 2018 per sales region in the United States together with any management reports
discussing such sales and data trends. We would like such data to be produced, monthly, quarterly and annually.

We are sending this email fully aware that you have now moved to compel production from Elizabeth Grady, but
we remain of the opinion that our offer for phased/targeted productions is the best path forward. The security
incident that we experienced also impacted access to our ESI database, but we now have regained full access and
are hopeful that we can begin productions shortly. Undoubtedly, if we can agree on this proposal, the parties will
be exchanging documents well before the Court rules on any motion to compel.

As the PowerPoint is central to the case, Cynosure should have no objection to producing the above materials, and
upon that agreement, we would commit to a mutual exchange of documents as we have previously offered.
Please let us know if this is acceptable to Cynosure. In light of this offer, please also let us know by the end of the
day whether you will agree to a one week extension of our deadline to respond to your motion to compel.

Thanks,

Nick

Nicholas Allen | Special Counsel
McCarter & English, LLP
265 Franklin Street | Boston, MA 02110

nallen@mccarter.com | www.mccarter.com | V-Card
T 617.449.6505 M 862.235.5087

From: Wiesner, Jocelyn
Sent: Friday, April 29, 2022 5:31 PM
To: Allen, Nicholas ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

**External Message**

Nick:

We do not understand why you are only now informing us of your belief that our proposal is insufficient. Plaintiff’s
failure to timely respond has served only to delay Cynosure from making productions.

Please provide any such counterproposal by Tuesday, May 5. As you will have had our proposal for a month at
that point, we trust that is sufficient time.

Thank you,
Jocelyn

_______________
Jocelyn A. Wiesner
Senior Associate
Date Filed 5/31/2022 8:12 PM
Superior Court - Middlesex
Docket Number 2081CV02967

Arnold & Porter
601 Massachusetts Ave., NW
Washington | District of Columbia 20001-3743
T: +1 202.942.5810
Jocelyn.Wiesner@arnoldporter.com | www.arnoldporter.com
From: Allen, Nicholas
Sent: Friday, April 29, 2022 3:04 PM
To: Wiesner, Jocelyn ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

External E-mail

Jocelyn,

We do not agree to your proposal, which is too narrow (with respect to both custodians and search terms) and
which will fail to capture a large number of responsive documents. We will have a formal counterproposal next
week.

Thank you,
Nick

From: Wiesner, Jocelyn
Sent: Friday, April 29, 2022 1:53 PM
To: Allen, Nicholas ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

**External Message**

Counsel:

We have yet to receive a response to the proposal we sent on April 4, nearly a month ago. We accordingly plan to
proceed with productions pursuant to the terms outlined below with the understanding that your non-response
indicates that you are fine with our proposal, including without limitation, that you agree to the proposed
custodians and search terms and do not intend to provide a counterproposal or request for additional
custodians/search terms.

Thank you,
Jocelyn

_______________
Jocelyn A. Wiesner
Senior Associate

Arnold & Porter
601 Massachusetts Ave., NW
Washington | District of Columbia 20001-3743
T: +1 202.942.5810
Jocelyn.Wiesner@arnoldporter.com | www.arnoldporter.com
Date Filed 5/31/2022 8:12 PM
Superior Court - Middlesex
Docket Number 2081CV02967

From: Allen, Nicholas
Sent: Tuesday, April 19, 2022 12:55 PM
To: Wiesner, Jocelyn ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

External E-mail

Hi Jocelyn,

Sorry for the delayed response. As Bill mentioned previously, we’ve had a security incident that impacted our
access to our system. I’ve just regained access to my emails.

This incident has obviously delayed the process of preparing a document production. I’ll try to get you an update
by the end of this week.

Thanks,
Nick

From: Wiesner, Jocelyn
Sent: Wednesday, April 13, 2022 9:44 AM
To: Allen, Nicholas ; Zucker, William
Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B. ; Novak, Leah
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

**External Message**

Nick:

We have not yet received any clarity on Plaintiff’s timeline for production. Please let us know by Friday, April 15,
your proposed timetable for production. We are otherwise prepared to seek court intervention.

We likewise continue to await a response to our proposal and our request for a meet and confer on that proposal.

Thank you,
Jocelyn

_______________
Jocelyn A. Wiesner
Senior Associate

Arnold & Porter
601 Massachusetts Ave., NW
Washington | District of Columbia 20001-3743
T: +1 202.942.5810
Jocelyn.Wiesner@arnoldporter.com | www.arnoldporter.com
From: Wiesner, Jocelyn
Sent: Monday, April 4, 2022 9:51 PM
To: Allen, Nicholas ; Zucker, William
Date Filed 5/31/2022 8:12 PM
Superior Court - Middlesex
Docket Number 2081CV02967

Cc: Michael J. Pineault ; Pariser, Daniel ;
Morris, Henry B.
Subject: RE: Elizabeth Grady -- Responsive Pleading Deadline

Nick:

I am writing to further respond to your proposal regarding the prioritization of discovery and provide a response
and counterproposal in advance of our meet and confer. We are providing this proposal for discussion purposes
only, without waiver of any objections. Further, our counterproposal is subject to us reaching an agreement on
the timetable and scope of plaintiff’s production.

1. Documents which have as their subject matter the turnaround plan, its iterations, the time period it was
put together, who put it together, the reasons therefore, and documents showing actual performance
vs plan

Cynosure Response: Defendants object to this request as not reflected in Plaintiff’s first requests
for documents served December 16, 2020. Nonetheless, Defendants will produce non-privileged
communications or documents, if any, that have as their subject matter the “turnaround plan” and
the related issues you have requested to the extent such documents are located in the email files
of Kevin Thornal and Blake Ahitow using the following search terms: Goldman or GS.com or
“Project Lotus” or (Turnaround w/3 Plan).

2. The documents or recorded interviews provided to Goldman or to the buyer which supply any support
or data for the statements summarized above that appear in the offering memorandum for Cynosure or
are part of the communications involving Goldman or any of the buyers. To the extent that Cynosure
claims that it does not have those documents, then the document or interviews provided by Cynosure
to Goldman that involve any of the statements above

Cynosure Response: Defendants object to this request as not reflected in Plaintiff’s first requests
for documents served December 16, 2020. Nonetheless, Defendants will produce non-privileged
communications, documents, or recorded interviews, if any, that were provided to Goldman
involving the statements or support for the statements summarized by Plaintiff or that are part of
communications involving Goldman that have as their subject matter the divestiture of Cynosure
to the extent such documents are located in the email files of Kevin Thornal and Blake Ahitow
using the following search terms: Goldman or GS.com or “Project Lotus.”

3. The documents which show Cynosure’s management (particularly Thornal and Ahitow) involvement in
any sales, disposition, reorganization decisions for Cynosure, particularly in the last quarter of 2018 and
in 219, including any recommendations or participation in the decision or communication of the
decision to them and the role that they played in implementing the decision. Such documents would
include any meeting minutes at which they were present or reports or recommendations they received
or generated

Cynosure Response: Defendants object to this request as not reflected in Plaintiff’s first requests
for documents served December 16, 2020. Nonetheless, Defendants will produce non-privileged
communications or documents reflecting corporate decisions regarding the sale, disposition, or
reorganization of Cynosure to the extent that they are located in the email files of Kevin Thornal
and Blake Ahitow f

Case Info

Judge

Patrick M. Haggan Track Judge’s New Case

Case No.

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Document Filed Date

May 31, 2022

Case Filing Date

December 08, 2020

County

Parties

Ahitow, Blake Defendant
Allen, Esq., Nicholas W Attorney for the Plaintiff
Barnes, Esq., Timothy H Attorney for the Plaintiff
Butters, Esq., Thomas J Attorney for the Plaintiff
Cynosure, Inc. Defendant
Elizabeth Grady Face First, Inc. D/B/A The Elizabeth Grady Company Plaintiff
Gelhaar, Esq., Peter Erich Attorney
Gelhaar, Esq., Peter Erich Attorney for the Defendant
Hologic Inc. Other Interested Party
Leskin, Lori B Attorney for the Defendant
Novak, Leah R Attorney for the Defendant
Pariser, Daniel S Attorney for the Defendant
Pineault, Esq., Michael J Attorney for the Defendant
Pine, Esq., Alec Spencer Attorney for the Plaintiff
Thornal, Kevin Defendant
Tighe, Esq., Daniel Patrick Attorney
Tighe, Esq., Daniel Patrick Attorney for the Defendant
Wiesner, Jocelyn A Attorney for the Defendant
Zucker, Esq., William A Attorney for the Plaintiff
David Ianelli Attorney
Gregory Eaton Attorneys for Plaintiffs
Daniel Palese Attorney
Glenn MacKinlay Attorney

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Party Discovery: Elizabeth Grady Face First, Inc. D/B/A The Elizabeth Grady Company vs. Cynosure, Inc. et al

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