Preview
Date Filed 6/7/2022 5:19 PM
Superior Court - Middlesex
Docket Number 2081CV02967
39.1
6/7/2022
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
v.
CYNOSURE, INC., and
KEVIN THORNAL,
Defendants.
MEMORANDUM IN SUPPORT OF DEFENDANT CYNOSURE, LLC’S MOTION TO
COMPEL (1) DOCUMENTS RESPONSIVE TO ITS SECOND SET OF REQUESTS FOR
PRODUCTION AND (2) RESPONSES TO ITS SECOND SET OF INTERROGATORIES
Defendant Cynosure, LLC (“Cynosure”) brings this Motion to compel Plaintiff Elizabeth
Grady Face First Inc., d/b/a The Elizabeth Grady Company to: (1) produce materials responsive
to Cynosure’s March 15, 2022 Second Set of Requests for Production (“Second Document
Request”); and (2) provide responses to Cynosure’s March 15, 2022 Second Set of Interrogatories.
Unhappy that its business plans did not pan out, Plaintiff claims in this lawsuit that
Cynosure falsely induced it to enter into a business arrangement to lease medical aesthetic
equipment. As a result, Plaintiff alleges, it not only failed to reach its forecasted revenues for the
leased equipment but also lost revenue due to reductions in pre-existing services supposedly
caused by the need to set aside physical space in Plaintiff’s salons for the leased equipment.
The discovery requests at issue seek materials of obvious relevance given the nature of
Plaintiff’s allegations: information needed to test whether Plaintiff’s lack of business success was
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due to entirely different reasons, such as a slowdown in demand for aesthetic procedures due to
the COVID pandemic. Rather than provide responsive information, however, Plaintiff instead has
lodged a raft of baseless objections to Cynosure’s document requests, failed to produce even those
few documents it supposedly has agreed to provide, and ignored Cynosure’s Second Set of
Interrogatories entirely, furnishing no responses whatsoever. The Court should accordingly grant
this motion to compel.
I. Background
This lawsuit involves a commercial contract between Cynosure, a manufacturer of laser
aesthetic devices, and Plaintiff, the operator of a chain of salons. Under that contract, Cynosure
leased a fleet of medical devices to Plaintiff at no cost in exchange for a percentage of any profits
realized by Plaintiff. Both parties agreed to bear their own risk of the deal not realizing its full
potential: the contract contained, in all capital letters, a disclaimer of any damages for lost profits
and any other form of consequential damages.
Unhappy with its reported failure to achieve anticipated revenues, and in a bald attempt to
end-run its freely-bargained for contractual limitation on liability, Plaintiff sued Cynosure alleging
that Cynosure fraudulently induced Plaintiff to enter into the contract knowing that the
arrangement would fail. It did so despite the fact that under the parties’ profit-sharing arrangement,
Plaintiff paid nothing for the devices and Cynosure, alone, therefore bore the financial risk of the
arrangement. As a result of the supposed fraud, Plaintiff alleges that it suffered “its first revenue
and working capital losses in the last 25 years,” which it attributed solely to the alleged
“misrepresentations” made by Cynosure. See Pltf.’s First Am. Cmplt., Dkt. No. 7, at 2.
On March 15, 2022 Cynosure served its Second Document Request and its Second Set of
Interrogatories (together, the “Requests”). One of the primary purposes of the Requests is to assess
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whether Plaintiff’s alleged damages claims have any support, or whether Plaintiff’s business
problems are due to factors entirely unrelated to its contract with Cynosure. See Ex. 1. For
example, Cynosure’s Requests ask for: (1) information or documents evidencing Plaintiff’s lack
of success with other in-store services/procedures, see, e.g., RFP No. 43, Rog. Nos. 17, 19-20, 22;
(2) information reflecting the effect of the COVID-19 pandemic on its business, see, e.g., RFP
Nos. 45-46, Rog. No. 18; and (3) evidence relating to the injury that Plaintiff claims resulted from
the lease agreement, such as changes supposedly made to its stores’ “physical space” due to the
devices, see, e.g., RFP No. 44, Rog. No. 21.
On April 28, 2022, Plaintiff served its written responses to the Second Document Request,
but did not produce any documents. See Ex. 2. For the most part, Plaintiff’s responses levied a
broad series of objections, agreeing to produce only a small sliver of the documents requested. Id.
Cynosure’s counsel asked to meet and confer about the deficiencies. See Ex. 3 (J. Wiesner’s April
29, 2022 email). Plaintiff’s counsel never responded to Cynosure. Nor has Plaintiff produced a
single document in response to the Second Document Request. In addition, Plaintiff ignored
Cynosure’s Second Set of Interrogatories entirely, serving no response at all despite Cynosure
agreeing to an extension. See id.
Plaintiff’s failure to respond to these Requests is par for the course. Plaintiff has
continually stonewalled Cynosure’s attempts to obtain documents in response to its earlier First
Set of Requests for Production, ignoring meet and confer requests, missing deadlines, and failing
to produce even a single document to date. That conduct is the subject of a separate motion to
compel which Cynosure served on April 29, 2022. See Ex. 4 hereto. Absent Court intervention,
Plaintiff’s continued delay tactics will prevent Cynosure from preparing its defense.
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II. Argument
Plaintiff’s sweeping objections are without merit. Further, it has no excuse for its failure to
date to produce any of the small number of documents it has agreed to provide, or for its failure to
supply any interrogatory responses whatsoever.
First, the material requested is clearly relevant, notwithstanding Plaintiff’s meritless
assertions to the contrary. See Ex. 2 (objecting to Request Nos. 43 and 45 on relevance).1 For
example, Request Nos. 43 and 45 each seek documents that would permit Cynosure to test whether
Plaintiff’s claimed downturn in business was truly the result of Cynosure’s alleged failure to
deliver on its promises, or whether Plaintiff’s business took a turn for the worse due to entirely
different reasons, such as the COVID-19 pandemic. See generally, Ex. 2 (RFP Nos. 43, 45).2
Specifically, No. 43 seeks documents reflecting the available and scheduled appointments for
Plaintiff’s ten highest revenue-generating services so that Cynosure can evaluate whether Plaintiff
experienced a downturn across all services offered in its salons or whether, as Plaintiff claims, it
reduced available appointments for other services solely to accommodate the Cynosure equipment.
Similarly, Request No. 45 seeks documents and communications related to business projections or
1
Plaintiff did not lodge a relevance objection to Request No. 46, which requests documents reflecting closures or
reductions in services from March 1, 2020 to present, but nonetheless objected on burden grounds as “the request is
not directed to closures or changes caused by the allegations in the Complaint.” See Ex. 2 (objecting to Request No.
46). But similarly, Request No. 46 is intended to assess whether any reduction in services, for example due to the
COVID-19 Pandemic and related limitations on elective procedures, was an independent cause of Plaintiff’s alleged
economic harm. See id. (RFP No. 46 asking Plaintiff to: “Provide all documents and communications regarding any
closures or reductions in operating hours, changes in services/procedures offered in store/franchise locations, and staff
headcount and changes from approximately March 1, 2020 to present, including any documentation reflecting the
reasons for such closures or changes.”).
2
Request No. 43 asks Plaintiff to: “Provide documentation of monthly available and scheduled appointments for
Your ten highest revenue-generating in-store services/procedures, as well as the Icon and SculpSure if those are not
already within the list, at each store/franchise location during the Time Period.” Id. (RFP No. 43). Request No. 45
asks Plaintiff to: “Provide all documents and communications related to any business projections and market
analysis (including competitor analysis) that You performed during the Time Period, including but not limited to any
analysis of the impact of the Covid-19 Pandemic.” Id. (RFP No. 45).
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market analyses, including the impact of the COVID-19 pandemic. See Ex. 2 (RFP No. 45). This
material goes directly to Plaintiff’s exorbitant damages claims, and is therefore plainly relevant.
Rather than provide the requested information, Plaintiff seeks to restrict its production only
to documents relating to the financial performance of the specific devices that Cynosure leased --
the SculpSure and the Icon. See Ex. 2 (Response to Request No. 43). That restriction, however,
defeats the whole point of the Request, which is to assess whether Plaintiff’s business as a whole
took a downturn due to external market factors such as the COVID-19 pandemic, and not, as
Plaintiff claims, because it reallocated resources away from pre-existing services to accommodate
the physical space needed by Cynosure’s equipment. Permitting Plaintiff to produce only
information concerning the leased Cynosure equipment will allow Plaintiff to evade providing an
answer to this more fundamental and critical question.
Second, Plaintiff’s boilerplate objections to Request Nos. 43, 45, and 46 as overboard,
unduly burdensome, not proportional to the needs of the case, and imposing a duty beyond those
required by law must be overruled. Id. (Response to Request Nos. 43, 45, and 46). As explained
above, Requests 43 and 46 are not overbroad: information concerning the general performance of
Plaintiff’s business outside of the specific devices at issue is needed to evaluate whether
independent factors such as COVID-19 caused Plaintiff’s downturn. Request No. 46, which asks
for information about forced store closures and reduced service offerings, targets the same issue
and is relevant for the same reason.
Nor has Plaintiff offered any support for its claim of burden. A party resisting discovery
on grounds of burden must provide specific facts demonstrating why the burden imposed by
responding would be unfair or undue. See, e.g., Lou ex rel. Chen v. Otis Elevator Co., No.
200100267A, 2005 WL 2540402, at *2 (Mass. Super. Sept. 1, 2005) (“A party may not respond
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to a request for production under Rule 34 . . . by avoiding a direct response by means
of boilerplate objections.”); NPS, LLC v. Stubhub, Inc., No. 064874BLS1, 2007 WL 2367748, at
*3 (Mass. Super. July 31, 2007) (“[A] party resisting discovery has the burden of showing some
sufficient reason why discovery should not be allowed.” (quoting Flag Fables, Inc. v. Jean Ann's
Country Flags and Crafts, Inc., 730 F. Supp. 1165, 1186 (D. Mass. 1990))); cf. Makrakis v.
Demelis, No. 09-706-C, 2010 WL 3004337, at *1-2 & n.2 (Mass. Super. July 15, 2010) (reiterating
that, per Mass. R. Civ. P. 26(b)(1), parties have the right to obtain relevant non-privileged
discovery; and referencing Federal Rule of Civil Procedure 26(b)(2)(B), which requires “the party
from whom discovery is sought [to] show that the information is not reasonably accessible because
of undue burden or cost”) (emphasis added). Plaintiff has done nothing of the sort here. Nor has
Plaintiff shown any willingness to meet and confer to attempt to narrow the scope of the Requests.
Third, Plaintiff’s objections to Request Nos. 45 and 46 as seeking documents protected by
“attorney-client or other applicable privilege” are baseless. See Ex. 2 (objecting to RFP Nos. 45-
46). There is no apparent reason why information about the trajectory of Plaintiff’s business would
be privileged at all. To the contrary, the Requests seek core business documents reflecting business
projections and available services and appointments. If there is some privileged material that is
responsive, Plaintiff may provide a privilege log but must still produce the non-privileged material.
Plaintiff has done neither.
Fourth, as to those few documents Plaintiff agreed to produce, Plaintiff should be required
to produce them within 15 days. See Ex. 2 (RFP Nos. 43-45, 47).3 For example, Plaintiff has
3
Request No. 44 asks Plaintiff to: “Provide all maps or drawings of the ‘physical space’ used or intended for use of
the ScuplSure and/or Icon devices for each store/franchise location as described in Paragraph 12 of the First
Amended Complaint, including any construction plans or other documents that reflect proposed or actual changes
made to the space to accommodate such equipment.” Id. (RFP No. 44). Request No. 47 ask Plaintiff to: “Produce
all documents and communications related to any refunds provided to SculpSure or Icon customers.”
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agreed to produce certain information and data concerning the SculpSure and Icon devices. While,
as explained above, Plaintiff’s unilateral attempt to limit its production to only the SculpSure and
Icon devices misses the point of the Requests, Plaintiff apparently concedes that at least this
information is relevant. Yet to date, Plaintiff has not produced a single document, or even a
timetable for production. Nor has it provided any excuse for its delay or request for more time.
Instead, Plaintiff has ignored Cynosure’s request to meet and confer.
Finally, Plaintiff should be compelled to respond to the outstanding interrogatories. Rule
33 of the Massachusetts Rules of Civil Procedure requires a “party upon whom the interrogatories
have been served” to respond with 45 days. Mass. R. Civ. P. 33(a)(3). More than 45 days have
passed since Cynosure sent its Second Set of Interrogatories. Cynosure even gave Plaintiff a
courtesy extension to respond, which has not been met. See Ex. 3 (J. Wiesner Apr. 29, 2022 email).
That extended deadline has come and gone, however, without a word from Plaintiff.
III. Conclusion
For the foregoing reasons, Cynosure respectfully requests that the Court compel Plaintiff
to, within 15 days: (1) produce all documents responsive to Cynosure’s Second Set of Requests
for Production in accordance with the parties’ agreement concerning custodians and search terms;
and (2) respond to Cynosure’s Second Set of Interrogatories.
Dated: May 17, 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
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Docket Number 2081CV02967
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
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 foregoing pleading was served upon the following
counsel of record for the parties by e-mail on May 17, 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
Counsel for Plaintiff
Daniel Patrick Tighe, Esq. (BBO No. 556583)
Peter Erich Gelhaar, Esq. (BBO No. 188310)
DONNELLY, CONROY & GELHAAR, LLP
260 Franklin Street, Suite 1600
Boston, MA 02110
T: +1 617.720.2880
dpt@dcglaw.com
peg@dcglaw.com
Counsel for Defendant Kevin Thornal
/s/ Michael J. Pineault
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Exhibit 1
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Docket Number 2081CV02967
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
v.
CYNOSURE, INC., and
KEVIN THORNAL,
Defendants.
DEFENDANT CYNOSURE, LLC’S SECOND SET OF INTERROGATORIES
Defendant Cynosure, LLC, f/k/a Cynosure, Inc. (“Cynosure”), by and through undersigned
counsel, and pursuant to Massachusetts Rule of Civil Procedure 33, respectfully requests that
Plaintiff responds to the following interrogatories with all information in its possession, custody,
or control, or which is available to it upon reasonable inquiry, within 45 days.
DEFINITIONS
In addition to the Uniform Definitions set forth in Massachusetts Superior Court Rule 30A,
which are incorporated herein by reference, the following terms have the meanings indicated
below:
1. “Document” shall have the broadest possible meaning under Massachusetts Rule
of Civil Procedure 26, and includes, but is not limited to, all writings or visible images of any
kind, whether in final or draft form, now or at any time in your possession, custody or control,
and including all copies of each document if the copies contain any additional writing or are not
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identical copies of the original (e.g., because typed, handwritten, or “blind” notes appear on them
or are attached to them). The term “document” further includes letters, invoices, contracts,
agreements, receipts, correspondence, electronic mail, memoranda, notes, photographs, diary and
calendar entries, records of meetings, minutes or statistical compilations, statements, tape
recordings, audio or visual recordings, summaries or records of telephone calls, summaries or
records of meetings or conferences, summaries or records of personal conversations or interviews,
and records of other conversations or communications.
2. The term “document” also includes records stored by any electronic or mechanical
means and capable of translation into written form, including but not limited to voice mail, phone
mail messages, or text messages (whether deleted, undeleted, placed on backup tapes or archived),
computer files in both machine-readable and hard copy form, magnetic tapes, and computer disks.
3. The terms “You” or “Your” shall mean the Plaintiff (i.e. Elizabeth Grady Face First
Inc. d/b/a The Elizabeth Grady Company), its partners, agents, parents, subsidiaries, affiliates,
employees, shareholders, owners, representatives, franchisees, or any other person acting for or
purportedly acting on behalf of or in concert with the answering Plaintiff, and the spouses of any
of the foregoing. Specifically, this discovery calls for information in Your possession, custody
or control, including documents and information in the possession, custody or control of Your
attorneys and accountants.
4. “Person” or “persons” shall mean any natural person or any business, legal or
governmental entity or association.
5. “Communications” shall mean the transmittal of information in any form, whether
oral, written, or electronic, and shall include without limitation facts, ideas, inquiries, statements,
and correspondence.
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6. “Complaint” shall refer to the Complaint filed in the above-captioned matter.
7. “Cynosure” shall refer to Cynosure, LLC (f/k/a Cynosure, Inc.).
8. “Product Lease Agreement” shall refer to the lease agreement executed between
Plaintiff and Cynosure on or about January 10, 2019.
9. “Letter Agreement” shall refer to the addendum to the Product Lease Agreement
executed between Plaintiff and Cynosure on or about July 10, 2019.
10. “SculpSure” and “SculpSure device” shall refer to the FDA-cleared laser sold by
Cynosure for noninvasive lipolysis, as described in Exhibit A of the Product Lease Agreement.
11. “Icon” and “Icon device” shall refer to the FDA-cleared device sold by Cynosure
for hair removal, wrinkle reduction, skin resurfacing, scar treatment, vessel clearance, and
pigment reduction, as described in Exhibit A of the Product Lease Agreement.
12. “Devices” shall refer to the SculpSure device and the Icon device.
13. “Time Period” refers to the period of time from January 1, 2018 to the present.
14. “Action” refers to the above-captioned litigation, Elizabeth Grady Face First Inc.
d/b/a The Elizabeth Grady Company, Civil Action No. 2081-CV-02967.
15. The words “and” and “or” shall be construed conjunctively or disjunctively rather
than exclusively. The word “including” shall be construed without limitation.
16. The use of the past tense shall include the present tense and the use of the present
tense shall include past tense so as to make the Request inclusive rather than exclusive.
17. The singular includes the plural and vice versa.
18. The word “concerning” means referring to, describing, evidencing, or constituting.
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INSTRUCTIONS
1. The instructions for interrogatory answers set forth in Massachusetts Rule of Civil
Procedure 33(a)(3) and Superior Court Rules 30 and 30A are incorporated herein by reference.
2. You are under a duty to supplement your answers to these interrogatories to the
extent required by Mass. R. Civ. P. 26(e)
3. If you withhold any responsive information under a claim of privilege or upon any
other ground, you must substantiate your claim of privilege by providing the information required
by Mass. R. Civ. P. 26(b)(5), including sufficient detail to permit defendants and the Court to
ascertain the viability of your privilege claim, including which privilege is asserted, on whose
behalf it is asserted, a statement of the facts upon which the claim is based, and confirmation that
no waiver of the privilege occurred by sharing the information with third parties.
CYNOSURE’S SECOND SET OF INTERROGATORIES
INTERROGATORY NO. 17:
Identify all store/franchise locations of Yours that have operated during the Time Period and
indicate when each store opened and, if applicable, closed permanently and the reason for closure.
INTERROGATORY NO. 18:
For each store/franchise location, identify any dates between approximately March 1, 2020 and
the present during which You (1) were not open for business as usual, including but not limited to
reduced or modified hours or (2) were not permitted under applicable laws, regulations, or
guidance or chose not to provide elective services/procedures, including procedures with the
SculpSure and Icon devices, related to the COVID-19 pandemic.
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INTERROGATORY NO. 19:
State the number of available appointments on a daily basis for Your ten highest revenue-
generating in-store services/procedures, as well as the number of available appointments for Icon
and SculpSure if those are not already within the list, for each store/franchise location during the
Time Period.
INTERROGATORY NO. 20:
State the approximate number of unique customers You had by month and store/franchise location,
during the Time Period.
INTERROGATORY NO. 21:
Describe the changes to Your “physical space” for each store/franchise location as described in
paragraph 12 of the First Amended Complaint, including but not limited to a description of the
physical space where Cynosure equipment was placed, the size, prior use, and modifications or
changes made to the space, any costs associated with the changes to the space, and the approximate
date on which such changes or modifications were made.
INTERROGATORY NO. 22:
Identify any businesses or entities which You do now or have considered to be a competitor in
your market during the Time Period.
Dated: March 15, 2022 By their attorneys,
_/s/ Michael J. Pineault__
Michael J. Pineault (BBO 555314)
ANDERSON & KREIGER LLP
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50 Milk Street, 21st Floor
Boston, MA 02109
mpineault@andersonkreiger.com
T: (617) 621-6578
F: (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
T: (202) 942-5000
F: (202) 942-5999
Counsel for Defendant Cynosure, Inc. (n/k/a
Cynosure, LLC)
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CERTIFICATE OF SERVICE
I, Michael J. Pineault, certify that on the 15th of March, 2022, I caused a true copy of the
foregoing document to be served by e-mail and by mail on the following counsel:
William A. Zucker, Esq.
Nicholas W. Allen, Esq.
McCarter & English LLP
265 Franklin Street
Boston, MA 02110-3113
T: 617-449-6500
wzucker@mccarter.com
nallen@mccarter.com
Counsel for Plaintiffs
/s/ Michael Pineault__
Michael J. Pineault (BBO No. 555314)
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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
v.
CYNOSURE, INC., and
KEVIN THORNAL,
Defendants.
DEFENDANT CYNOSURE LLC’S SECOND SET OF REQUESTS FOR PRODUCTION
Pursuant to Rules 26 and 34 of the Massachusetts Rules of Civil Procedure, Defendant
Cynosure, LLC, f/k/a Cynosure, Inc. (“Cynosure”), by and through undersigned counsel, hereby
request that Plaintiff produces for inspection and copying within thirty (30) days of service of these
Requests the documents and items described below. Such production is to be made to the offices
of Anderson & Kreiger LLP, 50 Milk Street, 21st Floor, Boston, MA 02109 (Attn: Michael
Pineault), or such other place as may be mutually agreed upon by the parties’ counsel.
DEFINITIONS
In addition to the Uniform Definitions set forth in Massachusetts Superior Court Rule 30A,
which are incorporated herein by reference, the following terms have the meanings indicated
below:
1. “Document” shall have the broadest possible meaning under Massachusetts Rule
of Civil Procedure 26, and includes, but is not limited to, all writings or visible images of any
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kind, whether in final or draft form, now or at any time in your possession, custody or control,
and including all copies of each document if the copies contain any additional writing or are not
identical copies of the original (e.g., because typed, handwritten, or “blind” notes appear on them
or are attached to them). The term “document” further includes letters, invoices, contracts,
agreements, receipts, correspondence, electronic mail, memoranda, notes, photographs, diary and
calendar entries, records of meetings, minutes or statistical compilations, statements, tape
recordings, audio or visual recordings, summaries or records of telephone calls, summaries or
records of meetings or conferences, summaries or records of personal conversations or interviews,
and records of other conversations or communications.
2. The term “document” also includes records stored by any electronic or mechanical
means and capable of translation into written form, including but not limited to voice mail, phone
mail messages, or text messages (whether deleted, undeleted, placed on backup tapes or archived),
computer files in both machine-readable and hard copy form, magnetic tapes, and computer disks.
3. The terms “You” or “Your” shall mean the Plaintiff (i.e. Elizabeth Grady Face First
Inc. d/b/a The Elizabeth Grady Company), its partners, agents, parents, subsidiaries, affiliates,
employees, shareholders, owners, representatives, franchisees, or any other person acting for or
purportedly acting on behalf of or in concert with the answering Plaintiff, and the spouses of any
of the foregoing. Specifically, this discovery calls for information in Your possession, custody
or control, including documents and information in the possession, custody or control of Your
attorneys and accountants.
4. “Person” or “persons” shall mean any natural person or any business, legal or
governmental entity or association.
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5. “Communications” shall mean the transmittal of information in any form, whether
oral, written, or electronic, and shall include without limitation facts, ideas, inquiries, statements,
and correspondence.
6. “Complaint” shall refer to the Complaint filed in the above-captioned matter.
7. “Cynosure” shall refer to Cynosure, LLC (f/k/a Cynosure, Inc.).
8. “Hologic” refers to Hologic, Inc., Cynosure’s former corporate parent.
9. “Product Lease Agreement” shall refer to the lease agreement executed between
Plaintiff and Cynosure on or about January 10, 2019.
10. “Letter Agreement” shall refer to the addendum to the Product Lease Agreement
executed between Plaintiff and Cynosure on or about July 10, 2019.
11. “SculpSure” and “SculpSure device” shall refer to the FDA-cleared laser sold by
Cynosure for noninvasive lipolysis, as described in Exhibit A of the Product Lease Agreement.
12. “Icon” and “Icon device” shall refer to the FDA-cleared device sold by Cynosure
for hair removal, wrinkle reduction, skin resurfacing, scar treatment, vessel clearance, and
pigment reduction, as described in Exhibit A of the Product Lease Agreement.
13. “Devices” shall refer to the SculpSure device and the Icon device.
14. “Time Period” refers to the period of time from January 1, 2018 to the present.
15. “Action” refers to the above-captioned litigation, Elizabeth Grady Face First Inc.
d/b/a The Elizabeth Grady Company, Civil Action No. 2081-CV-02967.
16. “John Walsh” shall refer to John P. Walsh, Jr., as identified in Paragraph 12 of Your
Complaint.
17. The words “and” and “or” shall be construed conjunctively or disjunctively rather
than exclusively. The word “including” shall be construed without limitation.
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18. The use of the past tense shall include the present tense and the use of the present
tense shall include past tense so as to make the Request inclusive rather than exclusive.
19. The singular includes the plural and vice versa.
20. The word “concerning” means referring to, describing, evidencing, or constituting.
21. The term “relating to” shall be deemed synonymous in meaning and equal in scope
to the word “concerning.”
INSTRUCTIONS
Cynosure requests that the documents and information responsive to the Requests be
produced in accordance with the following instructions:
1. The instructions for document responses set forth in Massachusetts Rule of Civil
Procedure 34 and Superior Court Rule 30A are incorporated herein by reference.
2. If you withhold any responsive documents under a claim of privilege or upon any
other ground, you must substantiate your claim of privilege by providing the information required
by Mass. R. Civ. P. 26(b)(5), including sufficient detail to permit defendants and the Court to
ascertain the viability of your privilege claim, including which privilege is asserted, on whose
behalf it is asserted, a statement of the facts upon which the claim is based, and confirmation that
no waiver of the privilege occurred by sharing the documents with third parties.
3. If you claim that the attorney-client privilege or any other privilege is
applicable to communications or documents sought by these Requests, the substance of that
communication or document need not be disclosed, but with respect to that communication or
document, you shall provide the following information for each such document or communication
to the extent it is available:
a. Its Bates range;
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b. Whether it is being withheld or redacted;
c. The basis or bases asserted for withholding or redacting it;
d. The date;
e. Any and all authors;
f. Any and all recipients of the communication or document, including for
electronically transmitted documents and communications, all information contained in the
to, cc, and bcc fields;
g. Its subject;
h. The document request number to which it is responsive; and
i. A description of the withheld or redacted document or communication that
meets the requirements of Instruction No. 2, supra.
4. The Requests for Production are continuing. Thus, if at any time prior to the trial
of this action, you obtain or identify additional documents or information responsive to these
Requests for Production, you shall promptly produce such additional responsive documents and
information.
5. Documents produced shall be Bates labeled.
6. In your responses to the Requests for Production, each of the documents responsive
to each of the Requests below shall be identified as such by the Bates label it bears.
7. If any requested document no longer exists, for whatever reason, provide a
description of the document by stating the name(s) and positions of the author, all recipients, the
date of the document, and the subject matter of the document. Also provide the complete
circumstances surrounding the fact that the document no longer exists and the approximate date
on which the document was destroyed, discarded, or otherwise ceased to exist.
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8. The relevant date range for each Request is the Time Period unless otherwise stated.
CYNOSURE’S SECOND SET OF DOCUMENT REQUESTS
REQUEST FOR PRODUCTION NO. 43:
Provide documentation of monthly available and scheduled appointments for Your ten highest
revenue-generating in-store services/procedures, as well as the Icon and SculpSure if those are not
already within the list, at each store/franchise location during the Time Period.
REQUEST FOR PRODUCTION NO. 44:
Provide all maps or drawings of the “physical space” used or intended for use of the SculpSure
and/or Icon devices for each store/franchise location as described in paragraph 12 of the First
Amended Complaint, including any construction plans or other documents that reflect proposed
or actual changes made to the space to accommodate such equipment.
REQUEST FOR PRODUCTION NO. 45:
Provide all documents and communications related to any business projections and market analysis
(including competitor analysis) that You performed during the Time Period, including but not
limited to any analysis of the impact of the COVID-19 Pandemic.
REQUEST FOR PRODUCTION NO. 46:
Provide all documents and communications regarding any closures or reductions in operating
hours, changes in services/procedures offered in store/franchise locations, and staff headcount and
changes from approximately March 1, 2020 to present, including any documentation reflecting the
reasons for such closures or changes.
REQUEST FOR PRODUCTION NO. 47:
Produce all documents and communications related to any refunds provided to SculpSure or Icon
customers.
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Dated: March 15, 2022 By their attorneys,
_/s/ Michael J. Pineault_____
Michael J. Pineault (BBO 555314)
Preview
Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 39.1 6/7/2022 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 v. CYNOSURE, INC., and KEVIN THORNAL, Defendants. MEMORANDUM IN SUPPORT OF DEFENDANT CYNOSURE, LLC’S MOTION TO COMPEL (1) DOCUMENTS RESPONSIVE TO ITS SECOND SET OF REQUESTS FOR PRODUCTION AND (2) RESPONSES TO ITS SECOND SET OF INTERROGATORIES Defendant Cynosure, LLC (“Cynosure”) brings this Motion to compel Plaintiff Elizabeth Grady Face First Inc., d/b/a The Elizabeth Grady Company to: (1) produce materials responsive to Cynosure’s March 15, 2022 Second Set of Requests for Production (“Second Document Request”); and (2) provide responses to Cynosure’s March 15, 2022 Second Set of Interrogatories. Unhappy that its business plans did not pan out, Plaintiff claims in this lawsuit that Cynosure falsely induced it to enter into a business arrangement to lease medical aesthetic equipment. As a result, Plaintiff alleges, it not only failed to reach its forecasted revenues for the leased equipment but also lost revenue due to reductions in pre-existing services supposedly caused by the need to set aside physical space in Plaintiff’s salons for the leased equipment. The discovery requests at issue seek materials of obvious relevance given the nature of Plaintiff’s allegations: information needed to test whether Plaintiff’s lack of business success was FW Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 due to entirely different reasons, such as a slowdown in demand for aesthetic procedures due to the COVID pandemic. Rather than provide responsive information, however, Plaintiff instead has lodged a raft of baseless objections to Cynosure’s document requests, failed to produce even those few documents it supposedly has agreed to provide, and ignored Cynosure’s Second Set of Interrogatories entirely, furnishing no responses whatsoever. The Court should accordingly grant this motion to compel. I. Background This lawsuit involves a commercial contract between Cynosure, a manufacturer of laser aesthetic devices, and Plaintiff, the operator of a chain of salons. Under that contract, Cynosure leased a fleet of medical devices to Plaintiff at no cost in exchange for a percentage of any profits realized by Plaintiff. Both parties agreed to bear their own risk of the deal not realizing its full potential: the contract contained, in all capital letters, a disclaimer of any damages for lost profits and any other form of consequential damages. Unhappy with its reported failure to achieve anticipated revenues, and in a bald attempt to end-run its freely-bargained for contractual limitation on liability, Plaintiff sued Cynosure alleging that Cynosure fraudulently induced Plaintiff to enter into the contract knowing that the arrangement would fail. It did so despite the fact that under the parties’ profit-sharing arrangement, Plaintiff paid nothing for the devices and Cynosure, alone, therefore bore the financial risk of the arrangement. As a result of the supposed fraud, Plaintiff alleges that it suffered “its first revenue and working capital losses in the last 25 years,” which it attributed solely to the alleged “misrepresentations” made by Cynosure. See Pltf.’s First Am. Cmplt., Dkt. No. 7, at 2. On March 15, 2022 Cynosure served its Second Document Request and its Second Set of Interrogatories (together, the “Requests”). One of the primary purposes of the Requests is to assess 2 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 whether Plaintiff’s alleged damages claims have any support, or whether Plaintiff’s business problems are due to factors entirely unrelated to its contract with Cynosure. See Ex. 1. For example, Cynosure’s Requests ask for: (1) information or documents evidencing Plaintiff’s lack of success with other in-store services/procedures, see, e.g., RFP No. 43, Rog. Nos. 17, 19-20, 22; (2) information reflecting the effect of the COVID-19 pandemic on its business, see, e.g., RFP Nos. 45-46, Rog. No. 18; and (3) evidence relating to the injury that Plaintiff claims resulted from the lease agreement, such as changes supposedly made to its stores’ “physical space” due to the devices, see, e.g., RFP No. 44, Rog. No. 21. On April 28, 2022, Plaintiff served its written responses to the Second Document Request, but did not produce any documents. See Ex. 2. For the most part, Plaintiff’s responses levied a broad series of objections, agreeing to produce only a small sliver of the documents requested. Id. Cynosure’s counsel asked to meet and confer about the deficiencies. See Ex. 3 (J. Wiesner’s April 29, 2022 email). Plaintiff’s counsel never responded to Cynosure. Nor has Plaintiff produced a single document in response to the Second Document Request. In addition, Plaintiff ignored Cynosure’s Second Set of Interrogatories entirely, serving no response at all despite Cynosure agreeing to an extension. See id. Plaintiff’s failure to respond to these Requests is par for the course. Plaintiff has continually stonewalled Cynosure’s attempts to obtain documents in response to its earlier First Set of Requests for Production, ignoring meet and confer requests, missing deadlines, and failing to produce even a single document to date. That conduct is the subject of a separate motion to compel which Cynosure served on April 29, 2022. See Ex. 4 hereto. Absent Court intervention, Plaintiff’s continued delay tactics will prevent Cynosure from preparing its defense. 3 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 II. Argument Plaintiff’s sweeping objections are without merit. Further, it has no excuse for its failure to date to produce any of the small number of documents it has agreed to provide, or for its failure to supply any interrogatory responses whatsoever. First, the material requested is clearly relevant, notwithstanding Plaintiff’s meritless assertions to the contrary. See Ex. 2 (objecting to Request Nos. 43 and 45 on relevance).1 For example, Request Nos. 43 and 45 each seek documents that would permit Cynosure to test whether Plaintiff’s claimed downturn in business was truly the result of Cynosure’s alleged failure to deliver on its promises, or whether Plaintiff’s business took a turn for the worse due to entirely different reasons, such as the COVID-19 pandemic. See generally, Ex. 2 (RFP Nos. 43, 45).2 Specifically, No. 43 seeks documents reflecting the available and scheduled appointments for Plaintiff’s ten highest revenue-generating services so that Cynosure can evaluate whether Plaintiff experienced a downturn across all services offered in its salons or whether, as Plaintiff claims, it reduced available appointments for other services solely to accommodate the Cynosure equipment. Similarly, Request No. 45 seeks documents and communications related to business projections or 1 Plaintiff did not lodge a relevance objection to Request No. 46, which requests documents reflecting closures or reductions in services from March 1, 2020 to present, but nonetheless objected on burden grounds as “the request is not directed to closures or changes caused by the allegations in the Complaint.” See Ex. 2 (objecting to Request No. 46). But similarly, Request No. 46 is intended to assess whether any reduction in services, for example due to the COVID-19 Pandemic and related limitations on elective procedures, was an independent cause of Plaintiff’s alleged economic harm. See id. (RFP No. 46 asking Plaintiff to: “Provide all documents and communications regarding any closures or reductions in operating hours, changes in services/procedures offered in store/franchise locations, and staff headcount and changes from approximately March 1, 2020 to present, including any documentation reflecting the reasons for such closures or changes.”). 2 Request No. 43 asks Plaintiff to: “Provide documentation of monthly available and scheduled appointments for Your ten highest revenue-generating in-store services/procedures, as well as the Icon and SculpSure if those are not already within the list, at each store/franchise location during the Time Period.” Id. (RFP No. 43). Request No. 45 asks Plaintiff to: “Provide all documents and communications related to any business projections and market analysis (including competitor analysis) that You performed during the Time Period, including but not limited to any analysis of the impact of the Covid-19 Pandemic.” Id. (RFP No. 45). 4 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 market analyses, including the impact of the COVID-19 pandemic. See Ex. 2 (RFP No. 45). This material goes directly to Plaintiff’s exorbitant damages claims, and is therefore plainly relevant. Rather than provide the requested information, Plaintiff seeks to restrict its production only to documents relating to the financial performance of the specific devices that Cynosure leased -- the SculpSure and the Icon. See Ex. 2 (Response to Request No. 43). That restriction, however, defeats the whole point of the Request, which is to assess whether Plaintiff’s business as a whole took a downturn due to external market factors such as the COVID-19 pandemic, and not, as Plaintiff claims, because it reallocated resources away from pre-existing services to accommodate the physical space needed by Cynosure’s equipment. Permitting Plaintiff to produce only information concerning the leased Cynosure equipment will allow Plaintiff to evade providing an answer to this more fundamental and critical question. Second, Plaintiff’s boilerplate objections to Request Nos. 43, 45, and 46 as overboard, unduly burdensome, not proportional to the needs of the case, and imposing a duty beyond those required by law must be overruled. Id. (Response to Request Nos. 43, 45, and 46). As explained above, Requests 43 and 46 are not overbroad: information concerning the general performance of Plaintiff’s business outside of the specific devices at issue is needed to evaluate whether independent factors such as COVID-19 caused Plaintiff’s downturn. Request No. 46, which asks for information about forced store closures and reduced service offerings, targets the same issue and is relevant for the same reason. Nor has Plaintiff offered any support for its claim of burden. A party resisting discovery on grounds of burden must provide specific facts demonstrating why the burden imposed by responding would be unfair or undue. See, e.g., Lou ex rel. Chen v. Otis Elevator Co., No. 200100267A, 2005 WL 2540402, at *2 (Mass. Super. Sept. 1, 2005) (“A party may not respond 5 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 to a request for production under Rule 34 . . . by avoiding a direct response by means of boilerplate objections.”); NPS, LLC v. Stubhub, Inc., No. 064874BLS1, 2007 WL 2367748, at *3 (Mass. Super. July 31, 2007) (“[A] party resisting discovery has the burden of showing some sufficient reason why discovery should not be allowed.” (quoting Flag Fables, Inc. v. Jean Ann's Country Flags and Crafts, Inc., 730 F. Supp. 1165, 1186 (D. Mass. 1990))); cf. Makrakis v. Demelis, No. 09-706-C, 2010 WL 3004337, at *1-2 & n.2 (Mass. Super. July 15, 2010) (reiterating that, per Mass. R. Civ. P. 26(b)(1), parties have the right to obtain relevant non-privileged discovery; and referencing Federal Rule of Civil Procedure 26(b)(2)(B), which requires “the party from whom discovery is sought [to] show that the information is not reasonably accessible because of undue burden or cost”) (emphasis added). Plaintiff has done nothing of the sort here. Nor has Plaintiff shown any willingness to meet and confer to attempt to narrow the scope of the Requests. Third, Plaintiff’s objections to Request Nos. 45 and 46 as seeking documents protected by “attorney-client or other applicable privilege” are baseless. See Ex. 2 (objecting to RFP Nos. 45- 46). There is no apparent reason why information about the trajectory of Plaintiff’s business would be privileged at all. To the contrary, the Requests seek core business documents reflecting business projections and available services and appointments. If there is some privileged material that is responsive, Plaintiff may provide a privilege log but must still produce the non-privileged material. Plaintiff has done neither. Fourth, as to those few documents Plaintiff agreed to produce, Plaintiff should be required to produce them within 15 days. See Ex. 2 (RFP Nos. 43-45, 47).3 For example, Plaintiff has 3 Request No. 44 asks Plaintiff to: “Provide all maps or drawings of the ‘physical space’ used or intended for use of the ScuplSure and/or Icon devices for each store/franchise location as described in Paragraph 12 of the First Amended Complaint, including any construction plans or other documents that reflect proposed or actual changes made to the space to accommodate such equipment.” Id. (RFP No. 44). Request No. 47 ask Plaintiff to: “Produce all documents and communications related to any refunds provided to SculpSure or Icon customers.” 6 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 agreed to produce certain information and data concerning the SculpSure and Icon devices. While, as explained above, Plaintiff’s unilateral attempt to limit its production to only the SculpSure and Icon devices misses the point of the Requests, Plaintiff apparently concedes that at least this information is relevant. Yet to date, Plaintiff has not produced a single document, or even a timetable for production. Nor has it provided any excuse for its delay or request for more time. Instead, Plaintiff has ignored Cynosure’s request to meet and confer. Finally, Plaintiff should be compelled to respond to the outstanding interrogatories. Rule 33 of the Massachusetts Rules of Civil Procedure requires a “party upon whom the interrogatories have been served” to respond with 45 days. Mass. R. Civ. P. 33(a)(3). More than 45 days have passed since Cynosure sent its Second Set of Interrogatories. Cynosure even gave Plaintiff a courtesy extension to respond, which has not been met. See Ex. 3 (J. Wiesner Apr. 29, 2022 email). That extended deadline has come and gone, however, without a word from Plaintiff. III. Conclusion For the foregoing reasons, Cynosure respectfully requests that the Court compel Plaintiff to, within 15 days: (1) produce all documents responsive to Cynosure’s Second Set of Requests for Production in accordance with the parties’ agreement concerning custodians and search terms; and (2) respond to Cynosure’s Second Set of Interrogatories. Dated: May 17, 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 7 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 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 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 foregoing pleading was served upon the following counsel of record for the parties by e-mail on May 17, 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 Counsel for Plaintiff Daniel Patrick Tighe, Esq. (BBO No. 556583) Peter Erich Gelhaar, Esq. (BBO No. 188310) DONNELLY, CONROY & GELHAAR, LLP 260 Franklin Street, Suite 1600 Boston, MA 02110 T: +1 617.720.2880 dpt@dcglaw.com peg@dcglaw.com Counsel for Defendant Kevin Thornal /s/ Michael J. Pineault 8 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 Exhibit 1 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 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 v. CYNOSURE, INC., and KEVIN THORNAL, Defendants. DEFENDANT CYNOSURE, LLC’S SECOND SET OF INTERROGATORIES Defendant Cynosure, LLC, f/k/a Cynosure, Inc. (“Cynosure”), by and through undersigned counsel, and pursuant to Massachusetts Rule of Civil Procedure 33, respectfully requests that Plaintiff responds to the following interrogatories with all information in its possession, custody, or control, or which is available to it upon reasonable inquiry, within 45 days. DEFINITIONS In addition to the Uniform Definitions set forth in Massachusetts Superior Court Rule 30A, which are incorporated herein by reference, the following terms have the meanings indicated below: 1. “Document” shall have the broadest possible meaning under Massachusetts Rule of Civil Procedure 26, and includes, but is not limited to, all writings or visible images of any kind, whether in final or draft form, now or at any time in your possession, custody or control, and including all copies of each document if the copies contain any additional writing or are not Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 identical copies of the original (e.g., because typed, handwritten, or “blind” notes appear on them or are attached to them). The term “document” further includes letters, invoices, contracts, agreements, receipts, correspondence, electronic mail, memoranda, notes, photographs, diary and calendar entries, records of meetings, minutes or statistical compilations, statements, tape recordings, audio or visual recordings, summaries or records of telephone calls, summaries or records of meetings or conferences, summaries or records of personal conversations or interviews, and records of other conversations or communications. 2. The term “document” also includes records stored by any electronic or mechanical means and capable of translation into written form, including but not limited to voice mail, phone mail messages, or text messages (whether deleted, undeleted, placed on backup tapes or archived), computer files in both machine-readable and hard copy form, magnetic tapes, and computer disks. 3. The terms “You” or “Your” shall mean the Plaintiff (i.e. Elizabeth Grady Face First Inc. d/b/a The Elizabeth Grady Company), its partners, agents, parents, subsidiaries, affiliates, employees, shareholders, owners, representatives, franchisees, or any other person acting for or purportedly acting on behalf of or in concert with the answering Plaintiff, and the spouses of any of the foregoing. Specifically, this discovery calls for information in Your possession, custody or control, including documents and information in the possession, custody or control of Your attorneys and accountants. 4. “Person” or “persons” shall mean any natural person or any business, legal or governmental entity or association. 5. “Communications” shall mean the transmittal of information in any form, whether oral, written, or electronic, and shall include without limitation facts, ideas, inquiries, statements, and correspondence. 2 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 6. “Complaint” shall refer to the Complaint filed in the above-captioned matter. 7. “Cynosure” shall refer to Cynosure, LLC (f/k/a Cynosure, Inc.). 8. “Product Lease Agreement” shall refer to the lease agreement executed between Plaintiff and Cynosure on or about January 10, 2019. 9. “Letter Agreement” shall refer to the addendum to the Product Lease Agreement executed between Plaintiff and Cynosure on or about July 10, 2019. 10. “SculpSure” and “SculpSure device” shall refer to the FDA-cleared laser sold by Cynosure for noninvasive lipolysis, as described in Exhibit A of the Product Lease Agreement. 11. “Icon” and “Icon device” shall refer to the FDA-cleared device sold by Cynosure for hair removal, wrinkle reduction, skin resurfacing, scar treatment, vessel clearance, and pigment reduction, as described in Exhibit A of the Product Lease Agreement. 12. “Devices” shall refer to the SculpSure device and the Icon device. 13. “Time Period” refers to the period of time from January 1, 2018 to the present. 14. “Action” refers to the above-captioned litigation, Elizabeth Grady Face First Inc. d/b/a The Elizabeth Grady Company, Civil Action No. 2081-CV-02967. 15. The words “and” and “or” shall be construed conjunctively or disjunctively rather than exclusively. The word “including” shall be construed without limitation. 16. The use of the past tense shall include the present tense and the use of the present tense shall include past tense so as to make the Request inclusive rather than exclusive. 17. The singular includes the plural and vice versa. 18. The word “concerning” means referring to, describing, evidencing, or constituting. 3 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 INSTRUCTIONS 1. The instructions for interrogatory answers set forth in Massachusetts Rule of Civil Procedure 33(a)(3) and Superior Court Rules 30 and 30A are incorporated herein by reference. 2. You are under a duty to supplement your answers to these interrogatories to the extent required by Mass. R. Civ. P. 26(e) 3. If you withhold any responsive information under a claim of privilege or upon any other ground, you must substantiate your claim of privilege by providing the information required by Mass. R. Civ. P. 26(b)(5), including sufficient detail to permit defendants and the Court to ascertain the viability of your privilege claim, including which privilege is asserted, on whose behalf it is asserted, a statement of the facts upon which the claim is based, and confirmation that no waiver of the privilege occurred by sharing the information with third parties. CYNOSURE’S SECOND SET OF INTERROGATORIES INTERROGATORY NO. 17: Identify all store/franchise locations of Yours that have operated during the Time Period and indicate when each store opened and, if applicable, closed permanently and the reason for closure. INTERROGATORY NO. 18: For each store/franchise location, identify any dates between approximately March 1, 2020 and the present during which You (1) were not open for business as usual, including but not limited to reduced or modified hours or (2) were not permitted under applicable laws, regulations, or guidance or chose not to provide elective services/procedures, including procedures with the SculpSure and Icon devices, related to the COVID-19 pandemic. 4 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 INTERROGATORY NO. 19: State the number of available appointments on a daily basis for Your ten highest revenue- generating in-store services/procedures, as well as the number of available appointments for Icon and SculpSure if those are not already within the list, for each store/franchise location during the Time Period. INTERROGATORY NO. 20: State the approximate number of unique customers You had by month and store/franchise location, during the Time Period. INTERROGATORY NO. 21: Describe the changes to Your “physical space” for each store/franchise location as described in paragraph 12 of the First Amended Complaint, including but not limited to a description of the physical space where Cynosure equipment was placed, the size, prior use, and modifications or changes made to the space, any costs associated with the changes to the space, and the approximate date on which such changes or modifications were made. INTERROGATORY NO. 22: Identify any businesses or entities which You do now or have considered to be a competitor in your market during the Time Period. Dated: March 15, 2022 By their attorneys, _/s/ Michael J. Pineault__ Michael J. Pineault (BBO 555314) ANDERSON & KREIGER LLP 5 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 50 Milk Street, 21st Floor Boston, MA 02109 mpineault@andersonkreiger.com T: (617) 621-6578 F: (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 T: (202) 942-5000 F: (202) 942-5999 Counsel for Defendant Cynosure, Inc. (n/k/a Cynosure, LLC) 6 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 CERTIFICATE OF SERVICE I, Michael J. Pineault, certify that on the 15th of March, 2022, I caused a true copy of the foregoing document to be served by e-mail and by mail on the following counsel: William A. Zucker, Esq. Nicholas W. Allen, Esq. McCarter & English LLP 265 Franklin Street Boston, MA 02110-3113 T: 617-449-6500 wzucker@mccarter.com nallen@mccarter.com Counsel for Plaintiffs /s/ Michael Pineault__ Michael J. Pineault (BBO No. 555314) 7 Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 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 v. CYNOSURE, INC., and KEVIN THORNAL, Defendants. DEFENDANT CYNOSURE LLC’S SECOND SET OF REQUESTS FOR PRODUCTION Pursuant to Rules 26 and 34 of the Massachusetts Rules of Civil Procedure, Defendant Cynosure, LLC, f/k/a Cynosure, Inc. (“Cynosure”), by and through undersigned counsel, hereby request that Plaintiff produces for inspection and copying within thirty (30) days of service of these Requests the documents and items described below. Such production is to be made to the offices of Anderson & Kreiger LLP, 50 Milk Street, 21st Floor, Boston, MA 02109 (Attn: Michael Pineault), or such other place as may be mutually agreed upon by the parties’ counsel. DEFINITIONS In addition to the Uniform Definitions set forth in Massachusetts Superior Court Rule 30A, which are incorporated herein by reference, the following terms have the meanings indicated below: 1. “Document” shall have the broadest possible meaning under Massachusetts Rule of Civil Procedure 26, and includes, but is not limited to, all writings or visible images of any Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 kind, whether in final or draft form, now or at any time in your possession, custody or control, and including all copies of each document if the copies contain any additional writing or are not identical copies of the original (e.g., because typed, handwritten, or “blind” notes appear on them or are attached to them). The term “document” further includes letters, invoices, contracts, agreements, receipts, correspondence, electronic mail, memoranda, notes, photographs, diary and calendar entries, records of meetings, minutes or statistical compilations, statements, tape recordings, audio or visual recordings, summaries or records of telephone calls, summaries or records of meetings or conferences, summaries or records of personal conversations or interviews, and records of other conversations or communications. 2. The term “document” also includes records stored by any electronic or mechanical means and capable of translation into written form, including but not limited to voice mail, phone mail messages, or text messages (whether deleted, undeleted, placed on backup tapes or archived), computer files in both machine-readable and hard copy form, magnetic tapes, and computer disks. 3. The terms “You” or “Your” shall mean the Plaintiff (i.e. Elizabeth Grady Face First Inc. d/b/a The Elizabeth Grady Company), its partners, agents, parents, subsidiaries, affiliates, employees, shareholders, owners, representatives, franchisees, or any other person acting for or purportedly acting on behalf of or in concert with the answering Plaintiff, and the spouses of any of the foregoing. Specifically, this discovery calls for information in Your possession, custody or control, including documents and information in the possession, custody or control of Your attorneys and accountants. 4. “Person” or “persons” shall mean any natural person or any business, legal or governmental entity or association. -2- Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 5. “Communications” shall mean the transmittal of information in any form, whether oral, written, or electronic, and shall include without limitation facts, ideas, inquiries, statements, and correspondence. 6. “Complaint” shall refer to the Complaint filed in the above-captioned matter. 7. “Cynosure” shall refer to Cynosure, LLC (f/k/a Cynosure, Inc.). 8. “Hologic” refers to Hologic, Inc., Cynosure’s former corporate parent. 9. “Product Lease Agreement” shall refer to the lease agreement executed between Plaintiff and Cynosure on or about January 10, 2019. 10. “Letter Agreement” shall refer to the addendum to the Product Lease Agreement executed between Plaintiff and Cynosure on or about July 10, 2019. 11. “SculpSure” and “SculpSure device” shall refer to the FDA-cleared laser sold by Cynosure for noninvasive lipolysis, as described in Exhibit A of the Product Lease Agreement. 12. “Icon” and “Icon device” shall refer to the FDA-cleared device sold by Cynosure for hair removal, wrinkle reduction, skin resurfacing, scar treatment, vessel clearance, and pigment reduction, as described in Exhibit A of the Product Lease Agreement. 13. “Devices” shall refer to the SculpSure device and the Icon device. 14. “Time Period” refers to the period of time from January 1, 2018 to the present. 15. “Action” refers to the above-captioned litigation, Elizabeth Grady Face First Inc. d/b/a The Elizabeth Grady Company, Civil Action No. 2081-CV-02967. 16. “John Walsh” shall refer to John P. Walsh, Jr., as identified in Paragraph 12 of Your Complaint. 17. The words “and” and “or” shall be construed conjunctively or disjunctively rather than exclusively. The word “including” shall be construed without limitation. -3- Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 18. The use of the past tense shall include the present tense and the use of the present tense shall include past tense so as to make the Request inclusive rather than exclusive. 19. The singular includes the plural and vice versa. 20. The word “concerning” means referring to, describing, evidencing, or constituting. 21. The term “relating to” shall be deemed synonymous in meaning and equal in scope to the word “concerning.” INSTRUCTIONS Cynosure requests that the documents and information responsive to the Requests be produced in accordance with the following instructions: 1. The instructions for document responses set forth in Massachusetts Rule of Civil Procedure 34 and Superior Court Rule 30A are incorporated herein by reference. 2. If you withhold any responsive documents under a claim of privilege or upon any other ground, you must substantiate your claim of privilege by providing the information required by Mass. R. Civ. P. 26(b)(5), including sufficient detail to permit defendants and the Court to ascertain the viability of your privilege claim, including which privilege is asserted, on whose behalf it is asserted, a statement of the facts upon which the claim is based, and confirmation that no waiver of the privilege occurred by sharing the documents with third parties. 3. If you claim that the attorney-client privilege or any other privilege is applicable to communications or documents sought by these Requests, the substance of that communication or document need not be disclosed, but with respect to that communication or document, you shall provide the following information for each such document or communication to the extent it is available: a. Its Bates range; -4- Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 b. Whether it is being withheld or redacted; c. The basis or bases asserted for withholding or redacting it; d. The date; e. Any and all authors; f. Any and all recipients of the communication or document, including for electronically transmitted documents and communications, all information contained in the to, cc, and bcc fields; g. Its subject; h. The document request number to which it is responsive; and i. A description of the withheld or redacted document or communication that meets the requirements of Instruction No. 2, supra. 4. The Requests for Production are continuing. Thus, if at any time prior to the trial of this action, you obtain or identify additional documents or information responsive to these Requests for Production, you shall promptly produce such additional responsive documents and information. 5. Documents produced shall be Bates labeled. 6. In your responses to the Requests for Production, each of the documents responsive to each of the Requests below shall be identified as such by the Bates label it bears. 7. If any requested document no longer exists, for whatever reason, provide a description of the document by stating the name(s) and positions of the author, all recipients, the date of the document, and the subject matter of the document. Also provide the complete circumstances surrounding the fact that the document no longer exists and the approximate date on which the document was destroyed, discarded, or otherwise ceased to exist. -5- Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 8. The relevant date range for each Request is the Time Period unless otherwise stated. CYNOSURE’S SECOND SET OF DOCUMENT REQUESTS REQUEST FOR PRODUCTION NO. 43: Provide documentation of monthly available and scheduled appointments for Your ten highest revenue-generating in-store services/procedures, as well as the Icon and SculpSure if those are not already within the list, at each store/franchise location during the Time Period. REQUEST FOR PRODUCTION NO. 44: Provide all maps or drawings of the “physical space” used or intended for use of the SculpSure and/or Icon devices for each store/franchise location as described in paragraph 12 of the First Amended Complaint, including any construction plans or other documents that reflect proposed or actual changes made to the space to accommodate such equipment. REQUEST FOR PRODUCTION NO. 45: Provide all documents and communications related to any business projections and market analysis (including competitor analysis) that You performed during the Time Period, including but not limited to any analysis of the impact of the COVID-19 Pandemic. REQUEST FOR PRODUCTION NO. 46: Provide all documents and communications regarding any closures or reductions in operating hours, changes in services/procedures offered in store/franchise locations, and staff headcount and changes from approximately March 1, 2020 to present, including any documentation reflecting the reasons for such closures or changes. REQUEST FOR PRODUCTION NO. 47: Produce all documents and communications related to any refunds provided to SculpSure or Icon customers. -6- Date Filed 6/7/2022 5:19 PM Superior Court - Middlesex Docket Number 2081CV02967 Dated: March 15, 2022 By their attorneys, _/s/ Michael J. Pineault_____ Michael J. Pineault (BBO 555314)