Preview
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Docket Number 2081CV02967 J
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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, )
) 9/6/2022
Plaintiff, )
)
v. ) C. A. No. 2018-CV-02967
)
CYNOSURE, INC., KEVIN THORNAL, AND )
BLAKE AHITOW, )
)
Defendants. )
)
PLAINTIFF’S DISCOVERY UPDATE AND RESPONSE TO CYNOSURE’S
SEPTEMBER 2, 2022 FILING
Plaintiff Elizabeth Grady hereby provides its discovery update and partially responds to
Cynosures filing dated September 2, 2022.
I. NO BASIS EXISTS FOR THE COURT TO ENTER CYNOSURE’S PROPOSED
DISCOVERY ORDER
Cynosure cannot skirt its obligation to serve and file a discovery motion pursuant to
Superior Court Rule 9A by submitting an entirely new proposed Order to the Court, and asking
that it be allowed as part of its now-moot motions to compel filed more than three months ago.
Cynosure’s original Motions to Compel only sought an order asking that Elizabeth Grady produce
documents in response to its first and second set of document requests. Elizabeth Grady has since
produced over 30,000 pages of responsive material and final productions will be served
imminently. Elizabeth Grady has gone above and beyond to locate and produce documents, many
of which skirt the line of relevancy. Should the Court be inclined to entertain Cynosure’s proposed
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Order, Elizabeth Grady respectfully requests that it be allowed ten-days to respond to each of the
specific issues raised in Cynosure’s September 2, 2022 filing.
II. CYNOSURE’S MOTION TO COMPEL DEPOSITIONS IS UNJUSTIFIED AND
PROCEDURALLY DEFICIENT
Cynosure’s request for this Court to order Elizabeth Grady witnesses to appear for
depositions is wholly unjustified, procedurally deficient, and brought in bad faith. Elizabeth
Grady’s witnesses are not refusing to testify nor has Elizabeth Grady unilaterally cancelled ANY
deposition. The truth of the matter is that Cynosure noticed these depositions originally for late
June 2022, and then unilaterally cancelled the depositions and asked Elizabeth Grady to propose
new deposition dates in July, which it did.
Thereafter, Elizabeth Grady made its witnesses available beginning in early August.
Cynosure deposed Elizabeth Grady employees Carla Ringhdahl on August 2, 2022, and Andrea
McEvoy on August 3, 2022. After Ms. Ringdahl’s deposition unnecessarily lasted until after 8:00
PM on August 2, it became apparent that the deposition of Elizabeth Grady’s CFO (Kathy
DeNicola, now the owner of the business) would not be completed on the one day Cynosure had
scheduled for August 9, 2022. Elizabeth Grady then proposed that her deposition be rescheduled
for consecutive days (since she was not available on August 10th) to which Cynosure AGREED.
The parties eventually agreed to reschedule Ms. DeNicola’s deposition on September 14
and 15. She is eager to testify and has not refused to appear. The parties also agreed to schedule
Mr. Walsh’s deposition on September 17 and 18. However, less than a week after agreeing to
those dates, Cynosure unilaterally cancelled Mr. Walsh’s deposition and asked for new dates. His
deposition is now scheduled for October 18 and 19. Mr. Walsh is also eager to testify. Any
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argument by Cynosure that Elizabeth Grady is to blame for the delayed depositions in this case is
directly refuted by these undisputed facts.1
III. FACT DISCOVERY WILL LIKELY NOT BE COMPLETED BY THE
NOVEMBER 2022 DEADLINE
For a number of reasons it appears increasingly unlikely that the parties will complete fact
discovery within the three months remaining before the November 2022 deadline.
A. Cynosure Continues Its Gamesmanship With its Document Productions
Nearly twenty months after Elizabeth Grady served its first set of document requests,
Cynosure continues to refuse to fulfill its basic discovery obligations. The primary issue concerns
the impermissibly narrow scope of Cynosure’s custodial search and the terms Cynosure is applying
to locate responsive materials. Cynosure has refused to expand the scope of its search despite
Elizabeth Grady’s reasonable requests. This issue is not resolved and now appears to be
exacerbated as evidenced by Cynosure’s recently served responses to Elizabeth Grady’s second
set of document requests (served on August 29, 2022). A true and accurate copy of Cynosure’s
Responses to Elizabeth Grady’s Second Set of Document Requests is attached at Exhibit A.
A few examples will help the Court understand the issues. First, in most instances,
Cynosure refuses to search beyond the custodial files of defendants Kevin Thornal and Blake
Ahitow for responsive documents (this is the same tactic used by Cynosure in responding to
1
Not only does Cynosure lack any good faith factual basis for entry of an order compelling these
witnesses to testify, but the motion is procedurally deficient. As explained in Elizabeth Grady’s
opposition, Cynosure never conferred with Elizabeth Grady as required by Rule 9C PRIOR TO
serving its motion. The rule requires a conference to occur before service of the motion, not after.
After service of the motion, counsel did confer and resolved the issues (at least Elizabeth Grady
believed so). Despite reaching agreement on dates, Cynosure filed its motion with the Court on
July 25, 2022, which was after the ten-day period set forth in Rule 9A for filing a motion after
receipt of an opposition. Cynosure’s failure to file the papers within ten days of receipt of
Elizabeth Grady’s opposition, and failure to comply with Rule 9A, constitutes a withdrawal of the
motion. It should be denied on that basis alone.
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Elizabeth Grady’s first set of document requests). Elizabeth Grady’s “Request No. 69,” for
example, asks for “memoranda, reports or minutes” that “reference, discuss, relate to, identify
and/or reflect consideration or approval of (a) any disposition or reorganization of Cynosure or its
business components, (b) the decision to sell the Cynosure business, (c) the marketing of the
Cynosure business for sale, and (d) any reason(s) therefore.” These are management level
documents, for the most part. In response, Cynosure agreed only to search for responsive materials
from the custodial files of the two individual defendants (Thornal and Ahitow) plus Cynosure’s
former CFO, Kathy Latu. Such a narrow set of custodians ignores other key employees at the
management level that undoubtedly had possession of responsive material, and ignores non-
custodial sources (i.e. corporate or financial records) where responsive materials may be
maintained.
In addition, Cynosure only agreed to use search terms that will undoubtedly leave behind
responsive materials from 2018, when Cynosure recruited Elizabeth Grady. For Request No. 69,
the search terms proposed by Cynosure include only: Goldman; gs.com; and “Project Lotus.” The
problem (to which Cynosure is aware) is that Hologic did not contact Goldman Sachs until mid-
January of 2019 to discuss issues related to the Cynosure business, and there is no indication that
Cynosure used the term Project Lotus internally or externally before January of 2019. Yet
Elizabeth Grady is also looking for documents from the Fall of 2018 and earlier which will show
Cynosure’s internal consideration of the future of its business at the same time it was recruiting
Elizabeth Grady. None of those materials would be located or produced according to the Cynosure
search parameters. This is just one example of Cynosure’s efforts to constrict its discovery
obligations, which is being done purposefully to deprive Elizabeth Grady of critical documents.
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Another equally important issue concerns Cynosure’s stonewalling discovery from key
custodian files. One of the most important witnesses in this case is former Cynosure employee
Piotr Slanda. Mr. Slanda is now employed by Hologic, but worked for Cynosure in the accounting
department until the second half of 2020. Mr. Slanda is one of only two Cynosure employees (the
other being newly added defendant Blake Ahitow) directly involved in preparing the financial
projections which lie at the heart of this case and which became part of the misrepresentations
made to Elizabeth Grady at the critical December 3, 2022 meeting. Cynosure admits in
interrogatory answers that only Mr. Slanda and Mr. Ahitow worked on the financial modeling.
Despite his role, Cynosure refused to designate Mr. Slanda as a document custodian.
Elizabeth Grady was not even aware of Mr. Slanda’s role until Cynosure finally began making
document productions in June of this year. When Elizabeth Grady finally discovered the true
nature and extent of Mr. Slanda’s participation, it immediately noticed his deposition and
demanded Cynosure produce his custodial files. In late June, Cynosure finally agreed to produce
Mr. Slanda’s custodial files. Those files were not produced before Mr. Slanda’s July 21st
deposition, however. Then, on August 4th, after Mr. Slanda’s deposition and after repeated
inquiries by Elizabeth Grady, Cynosure informed Elizabeth Grady for the first time that Mr.
Slanda’s custodial files had not been maintained. After further discussions about this potential
spoliation issue, and the loss of an additional four weeks of discovery, Cynosure recently informed
Elizabeth Grady that Hologic has maintained Mr. Slanda’s custodial files. Elizabeth Grady is still
waiting for those documents to be produced. See Exhibit B (email chain between counsel
concerning custodial issues).
Another key witness is Derek Babin, a former Cynosure Customer Success Manager.
Cynosure also refused to produce responsive materials from Mr. Babin’s custodial files, first
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describing him as an irrelevant custodian, despite the fact that Cynosure’s very first exhibits in this
case were emails authored by Mr. Babin. Cynosure has since refused to produce his files without
Elizabeth Grady agreeing to unreasonable conditions (including overly narrow search terms).
Cynosure also has informed Elizabeth Grady that the custodial files of another key witness, Erik
Anderson, are also in Hologic’s possession and that Hologic will (at some point) produce his
responsive files. 2 All of these custodial files should have been reviewed (and documents
produced) months ago. Cynosure’s persistent and unwavering refusal to undertake the appropriate
search to locate responsive materials has caused significant delays at great cost to Elizabeth Grady.
B. Hologic Failed to Produce Documents By August 17, 2022
Hologic is also responsible for discovery delays. Rather than responding to a validly served
and narrowly tailored subpoena duces tecum served in March 2022, Hologic and Cynosure fought
the subpoena in Court and refused to produce any materials. And now, despite a Court order
requiring Hologic to produce documents by August 17, Hologic failed to produce any records by
the Court’s deadline. After the deadline passed, Hologic contacted Elizabeth Grady and requested
additional time to produce responsive materials. Hologic finally made a first production on August
26, 2022, and has since informed Elizabeth Grady that it will take weeks to complete the remaining
productions. Elizabeth Grady anticipates it will likely have to serve a second subpoena on Hologic
to ensure that all proper records are identified, reviewed and produced (this is even more critical
now based on recent disclosures that Hologic has retained certain custodial files of former
Cynosure employees).
2
It is certainly interesting that after vigorously opposing Elizabeth Grady’s subpoena duces tecum, and advancing a
number of arguments including that the responsive material being sought by Elizabeth Grady was obtainable from
Cynosure and not Hologic, that it now appears Hologic has all along maintained the custodial files of key witnesses
such as Mr. Slanda and Erik Anderson (Kevin Thornal’s successor at Cynosure).
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C. Significant Discovery Remains to be Completed
While a number of depositions have been scheduled or noticed throughout September and
October, it is unlikely that the remaining additional depositions can be completed prior to the
discovery deadline. Elizabeth Grady intends to take at least five additional depositions beyond the
four it has noticed or taken to date (and at least one of those depositions will require Letters
Rogatory from this Court). Moreover, the parties have recently served additional written discovery
and Cynosure is now serving third party subpoenas. Elizabeth Grady estimates it will take at least
six to seven months to complete the remaining discovery.
ELIZABETH GRADY FACE FIRST, INC.
D/B/A THE ELIZABETH GRADY
COMPANY,
By its attorneys,
William A. Zucker, Esq., BBO No. 541240
Nicholas W. Allen, Esq., BBO No. 663409
McCarter & English, LLP
265 Franklin Street
Boston, MA 02110-3113
617.449.6500
wzucker@mccarter.com
nallen@mccarter.com
September 6, 2022
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CERTIFICATE OF SERVICE
I, Nicholas W. Allen, hereby certify that on this 6th day of September, 2022, I served a
copy of the foregoing document upon defendants’ counsel of record via email, in compliance with
the applicable Supreme Judicial Court Order in re: COVID-19 (coronavirus) Pandemic,
concerning email service in cases under Rule 5(b) of Mass. Rules Civil Procedure.
______________________________
Nicholas W. Allen
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EXHIBIT A
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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 OBJECTIONS AND RESPONSE TO PLAINTIFF’S
SECOND REQUEST FOR DOCUMENTS
Defendant Cynosure, LLC, f/k/a Cynosure, Inc. (“Cynosure”), by and through undersigned
counsel, hereby respond to Plaintiff Elizabeth Grady Face First Inc. d/b/a The Elizabeth Grady
Company’s (“Plaintiff’) Second Request for Production of Documents (“Requests”) to Cynosure,
dated July 28, 2022, as follows:
PRELIMINARY STATEMENT
Cynosure provides this Response based upon investigation conducted in the time available
since service of Plaintiff’s Requests. This Response is based upon information now known to
Cynosure, which Cynosure believes to be pertinent in objecting or responding to Plaintiff’s
Requests. Cynosure may later discover or acquire additional information bearing on Plaintiff’s
Requests and Cynosure’s objections and responses thereto. Without in any way obligating itself to
do so, Cynosure reserves the right: (a) to make subsequent revisions or amendments to its
objections and this Response based upon information, evidence, documents, facts, and/or other
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things that hereafter may be discovered, or the relevance of which may hereafter be discovered;
and (b) to produce, introduce, or rely upon additional or subsequently acquired or discovered
writings, evidence, and information in any proceedings or at any trial held hereafter.
Further, any response by Cynosure to a particular request is not intended to be, and shall
not be construed as, an admission of the existence of any fact, assertion, or other matters expressed
or implied in any of the Requests. By agreeing to produce documents or information responsive to
any request, Cynosure does not admit that any responsive documents or information exists.
Cynosure’s agreement to produce documents is subject to the Protective Order in this case.
Cynosure incorporates this Preliminary Statement into each objection and response as if fully set
forth in its entirety.
GENERAL OBJECTIONS
Cynosure makes the following General Objections to Plaintiff’s Requests, which are
expressly incorporated into each of Cynosure's Specific Objections and Responses as though fully
set forth in full and without waiving these General Objections. To the extent a specific objection
is cited in response to a request, that specific objection is provided because it is believed to be
particularly applicable to the specific request and is not construed as a waiver of any of these
General Objections.
1. Cynosure objects to Plaintiff’s Requests as overly burdensome and unduly
prejudicial insofar as Plaintiff’s Complaint fails to state a viable cause of action.
2. To the extent Cynosure agrees to produce documents in response to the Plaintiff’s
Requests, that means that it will conduct a reasonable search of available, centrally maintained
locations which are reasonably accessible and reasonably likely to contain responsive documents.
Cynosure will produce and will not withhold non-privileged, responsive documents located as a
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result of such a search. However, Cynosure objects to the extent that the Plaintiff’s Requests
purport to require Cynosure to search other sources, including custodial ESI, for potentially
responsive documents, on the basis that such search efforts would be unduly burdensome,
cumulative, and disproportionate to the needs of the case. Specifically, Cynosure believes that it
can reasonably respond to the Requests set forth below based on searches of centrally maintained
records, and that the time and expense involved in searching custodial ESI and other sources
(including processing and vendor costs and attorney responsiveness and privilege review time)
outweighs the low probability that information which is non-cumulative and material to the case
would be contained in such sources. Accordingly, unless expressly stated otherwise below,
Cynosure does not intend to search custodial ESI sources or other sources outside the centrally
maintained locations referred to above. Further, to the extent any Response refers to the “agreed
upon custodians,” such response is referring only to the custodians specifically identified in
response to other Requests herein.
3. Cynosure objects to the extent that Plaintiff's Requests seek information protected
from disclosure by the attorney-client privilege, the attorney work product doctrine, and/or other
privileges, immunities, and legal protections against disclosure. Nothing contained herein is
intended to be, nor shall in any way be construed as, waiving any attorney-client privilege, work
product doctrine, right to privacy, or any other applicable privilege, doctrine, law, immunity, or
rule protecting information from disclosure.
4. Cynosure objects to the extent that the Plaintiff's Requests seek documents that are
non-public, confidential, and/or competitively sensitive, and which contain proprietary and
confidential business and financial information, including information constituting or pertaining
to trade secrets, personnel information and/or other competitively sensitive research, development,
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or other commercial information. Cynosure’s production of any documents in response to
Plaintiff’s Requests is accordingly made for the purposes of this litigation only, and shall be treated
as confidential to the extent such documents are designated as confidential.
5. Cynosure objects to Plaintiff’s Requests to the extent they seek discovery of private
or personal information related to patients and/or users of any pharmaceutical products,
participants in clinical trials, reporters of adverse events, personnel files, or other personal
information that is protected. See 21 U.S.C. § 360(i)(b)(3); 21 C.F.R. § 20.63. Information that
identifies patients and physicians or any other information protected by law will be redacted from
any documents produced.
6. Cynosure’s agreement to produce documents is subject to the terms of the
Protective Order entered in this Action.
7. Cynosure objects to Plaintiff's Requests to the extent that they seek the discovery
of information or material that is not in the knowledge, possession, custody, or control of
Cynosure. This includes, but is not limited to, any information or material in the possession of
Hologic. Accordingly, for each and every custodian identified in response to Plaintiff’s Requests,
Cynosure agrees only to produce the responsive, non-privileged, non-protected information or
material described, to the extent any exists, from those custodians’ files during the time in which
they were employed by Cynosure and does not agree to search or produce from such custodial files
to the extent such custodian became an employee of Hologic following the November 20, 2019
divestiture.
8. Cynosure objects to Plaintiff's Requests to the extent that they seek information that
is available through less burdensome means of discovery or other sources of information, in that
the information requested is: (a) in the possession, custody, or control of Plaintiff; or (b) in the
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possession, custody, or control of other parties or non-parties. Cynosure will produce documents
only to the extent that such documents are in the possession, custody, or control of Cynosure.
9. Cynosure objects to Plaintiff’s Requests to the extent that they seek the production
of documents without date restrictions, which imposes a burden disproportionate to the needs of
this case. Cynosure will search for and produce non-privileged responsive documents, if any, from
January 1, 2018 to December 8, 2020, which is the date on which Plaintiff filed its Complaint in
this matter.
These General Objections, as well as the objections set forth in the Preliminary Statement
above, are incorporated by reference in the response to each individual Request as if fully set forth
therein.
OBJECTIONS TO INSTRUCTIONS
Cynosure objects to the Instructions contained in Plaintiff’s Requests to the extent the
Instructions seek to impose obligations beyond those set forth in the governing procedural rules.
Responses to these requests shall be supplemented and/or amended to the extent required by Mass.
R. Civ. P. 26(e).
OBJECTIONS TO DEFINITIONS
Cynosure objects to the Definitions contained in Plaintiff’s Requests to the extent the
Definitions seek to impose obligations beyond those set forth in the governing procedural rules.
RESPONSE TO DOCUMENT REQUESTS
REQUEST NO. 69:
Any and all memoranda, reports or minutes (from or to any committee, board of directors,
officer or manager) that reference, discuss, relate to, identify and/or reflect consideration or
approval of (a) any disposition or reorganization of Cynosure or its business components, (b) the
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decision to sell the Cynosure business, (c) the marketing of the Cynosure business for sale, and (d)
any reason(s) therefore.
RESPONSE TO REQUEST NO. 69:
Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and
disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks
the production of “all” documents and to the extent it seeks the production of documents pertaining
to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those
claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also
objects this Request to the extent it is duplicative of Plaintiff’s Request Nos. 1 and 2. Cynosure
also objects to this Request to the extent it is duplicative of Request No. 1 in Plaintiff’s Subpoena
Duces Tecum served on Hologic, Inc. (“Hologic Subpoena”), see Dkt. No. 37.1, Ex. A, and that it
calls for information or documents that are in the possession, custody, or control of Hologic, Inc.
Subject to and without waiver of its objections, Cynosure states that it has agreed to
produce, and has produced, non-privileged, non-protected, responsive documents reflecting
corporate decisions regarding the sale, disposition, or reorganization of Cynosure from the
custodial email files of Kevin Thornal and Blake Ahitow using the following responsive search
terms: Goldman or GS.com or “Project Lotus.” Also, subject to and without waiver of its
objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non-
protected, responsive communications with Goldman Sachs & Co., LLC (“Goldman”) that have
as their subject the divestiture of Cynosure from the custodial email files of Kevin Thornal using
the following responsive search terms: Goldman or GS.com or “Project Lotus.” Additionally,
subject to and without waiver of its objections, Cynosure states that it will search the custodial
email files of Kathy Latu to produce non-privileged, non-protected, responsive documents
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reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure or
non-privileged, non-protected, responsive communications with Goldman that have as their
subject the divestiture of Cynosure using the following responsive search terms: Goldman or
GS.com or “Project Lotus.”
REQUEST NO. 70.
Any and all documents that reference, discuss, relate to, identify and/or reflect the decision
to engage any investment banker, including Goldman Sachs & Co., LLC (“Goldman”), with
respect to Cynosure’s business in connection with the possible sale, reorganization, or other
disposition thereof.
RESPONSE TO REQUEST NO. 70:
Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and
disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks
the production of “all” documents and to the extent it seeks the production of documents pertaining
to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those
claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also
objects to this Request to the extent it is duplicative of Request No. 2 in Plaintiff’s Hologic
Subpoena, and that it calls for information or documents that are in the possession, custody, or
control of Hologic, Inc.
Subject to and without waiver of its objections, Cynosure states that it has agreed to
produce, and has produced, non-privileged, non-protected, responsive documents reflecting
corporate decisions regarding the sale, disposition, or reorganization of Cynosure from the
custodial email files of Kevin Thornal and Blake Ahitow using the following responsive search
terms: Goldman or GS.com or “Project Lotus.” Also, subject to and without waiver of its
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objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non-
protected, responsive communications with Goldman that have as their subject the divestiture of
Cynosure from the custodial email files of Kevin Thornal using the following responsive search
terms: Goldman or GS.com or “Project Lotus.” Additionally, subject to and without waiver of its
objections, Cynosure states that it will search the custodial email files of Kathy Latu to produce
non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the
sale, disposition, or reorganization of Cynosure or non-privileged, non-protected, responsive
communications with Goldman that have as their subject the divestiture of Cynosure using the
following responsive search terms: Goldman or GS.com or “Project Lotus.”
REQUEST NO. 71.
All documents that identify the date on which Cynosure and/or Hologic first contacted
Goldman in connection with the anticipated sale or disposition of the Cynosure business and the
documents that constitute Hologic’s agreement(s) with Goldman to manage or provide advice with
respect to the Cynosure sale.
RESPONSE TO REQUEST NO. 71:
Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and
disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks
the production of “all” documents and to the extent it seeks the production of documents pertaining
to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those
claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also
objects to this Request to the extent it is duplicative of Request No. 3 in Plaintiff’s Hologic
Subpoena, and that it calls for information or documents that are in the possession, custody, or
control of Hologic, Inc. Cynosure further objects to this Request to the extent it is duplicative of
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Request No. 1 in Plaintiff’s Subpoena Duces Tecum served on Goldman (the “Goldman
Subpoena”). See Dkt. No. 30, Ex. A.
Subject to and without waiver of its objections, Cynosure states that it has agreed to
produce, and has produced, non-privileged, non-protected, responsive documents reflecting
corporate decisions regarding the sale, disposition, or reorganization of Cynosure from the
custodial email files of Kevin Thornal and Blake Ahitow using the following responsive search
terms: Goldman or GS.com or “Project Lotus.” Also, subject to and without waiver of its
objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non-
protected, responsive communications with Goldman that have as their subject the divestiture of
Cynosure from the custodial email files of Kevin Thornal using the following responsive search
terms: Goldman or GS.com or “Project Lotus.” Additionally, subject to and without waiver of its
objections, Cynosure states that it will search the custodial email files of Kathy Latu to produce
non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the
sale, disposition, or reorganization of Cynosure or non-privileged, non-protected, responsive
communications with Goldman that have as their subject the divestiture of Cynosure using the
following responsive search terms: Goldman or GS.com or “Project Lotus.”
REQUEST NO. 72.
Any and all documents or other communications that involve one or more of Kevin
Thornal, Blake Ahitow, Karleen Oberton, John Griffin, Steve MacMillan, Kathleen Latu, Eric
Anderson, and/or Andrea Schwab, that reference, discuss, relate to, identify and/or reflect (a) any
disposition or reorganization of Cynosure or its business components, (b) the decision to sell the
Cynosure business, (c) the marketing of the Cynosure business for sale, and (d) any reason(s)
therefore.
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RESPONSE TO REQUEST NO. 72:
Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and
disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks
the production of “all” documents and to the extent it seeks the production of documents pertaining
to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those
claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also
objects to this Request as compound. Cynosure also objects to this Request to the extent it is
duplicative of Request No. 4 in Plaintiff’s Hologic Subpoena, and that it calls for information or
documents that are in the possession, custody, or control of Hologic, Inc. Cynosure further objects
to this Request to the extent it seeks the documents of Andrea Schwab, as—based on a reasonable
investigation to date—Ms. Schwab did not participate in the Elizabeth Grady deal nor did she
participate in the decisions to sell the Cynosure business, the marketing of the Cynosure business
for sale, or any matter related to the divestiture. Cynosure also objects to this request as duplicative
of Request No. 69.
Subject to and without waiver of its objections, Cynosure incorporates its objections and
response to Request No. 69, and states that, as previously communicated to Plaintiff, Cynosure
does not possess the files of Mr. Anderson. Further, subject to and without waiver of its objections,
as previously communicated to Plaintiff, Mr. Oberton, Mr. Griffin, and Mr. MacMillan are not and
were not Cynosure employees.
REQUEST NO. 73.
All documents that constitute the “comprehensive turnaround plan” (as referenced on Page
15 of a certain “Project Lotus Confidential Information Presentation” dated from July of 2019) (or
whatever terminology Cynosure management used to describe the plan referenced in the Goldman
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presentation), for Cynosure’s medical aesthetics business in 2018 and 2019, together with all
memorandum or reports having as their subject matter the reasons for implementing the turnaround
plan, and Cynosure’s performance against such plan.
RESPONSE TO REQUEST NO. 73:
Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and
disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks
the production of “all” documents and to the extent it seeks the production of documents pertaining
to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those
claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also
objects to this Request to the extent it is duplicative of Request No. 5 in Plaintiff’s Hologic
Subpoena, and that it calls for information or documents that are in the possession, custody, or
control of Hologic, Inc. Finally, Cynosure objects to this Request to the extent that, as already
communicated to Plaintiff—based on a reasonable investigation to date—a “turnaround plan” does
not exist. See, e.g., J. Wiesner. August 4, 2022 email (“In any case, we previously informed you
on July 13, 2022 that we had done a reasonable and diligent search for documents reflecting a
business initiative termed or referred to as a ‘turnaround plan’ and had not identified any such
documents.”).
Subject to and without waiver of its objections, Cynosure states that it has agreed to
produce, and has produced, high-level business plans related to its medical aesthetics business in
2018 and 2019, from the custodial email files of Kevin Thornal and Blake Ahitow and centrally
maintained and reasonably accessible locations using reasonable and targeted electronic searching,
including, but not limited to, Cyno_EG_00033110 - Cyno_EG_00033095. Additionally, subject
to and without waiver of its objections, Cynosure also states that it ran a search, “turnaround w/3
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Docket Number 2081CV02967
plan,” in the custodial files of Blake Ahitow and Kevin Thornal and did not identify responsive
documents. See, e.g., J. Wiesner April 4, 2022 email (noting that Cynosure would run this search).
Further, subject to and without waiver of its objections, Cynosure states that it will search the
custodial email files of Kathy Latu to produce non-privileged, non-protected, responsive
documents reflecting corporate decisions regarding the sale, disposition, or reorganization of
Cynosure or non-privileged, non-protected, responsive communications with Goldman that have
as their subject the divestiture of Cynosure using the following responsive search term:
“turnaround w/3 plan.”
REQUEST NO. 74.
The documents that formed the basis for the computation of historic revenue performance
for “body” and “skin” together with documents showing the historic revenue for each component
of “body” and “skin”, which are set forth on page 90 of that certain “Project Lotus Confidential
Information Presentation” dated from July of 2019.
RESPONSE TO REQUEST NO. 74:
Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and
disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks
the production of “all” documents. Cynosure also objects to this Request as vague and ambiguous
insofar as it fails to define “computation of historic revenue performance,” and “historic revenue
for each component of.” Cynosure also objects to this Request to the extent it is duplicative of
Request No. 6 in Plaintiff’s Hologic Subpoena, and that it calls for information or documents that
are in the possession, custody, or control of Hologic, Inc. Cynosure further objects to this Request
to the extent that it did not prepare the Project Lotus Confidential Information presentation dated
from July of 2019.
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Docket Number 2081CV02967
Subject to and without waiver of its objections, Cynosure states that it has agreed to
produce, and has produced, non-privileged, non-protected, responsive documents reflecting
corporate decisions regarding the sale, disposition, or reorganization of Cynosure from the
Preview
Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 J 48 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. Superior Court Department Of The Trial Court ELIZABETH GRADY FACE FIRST INC. ) D/B/A THE ELIZABETH GRADY ) COMPANY, ) ) 9/6/2022 Plaintiff, ) ) v. ) C. A. No. 2018-CV-02967 ) CYNOSURE, INC., KEVIN THORNAL, AND ) BLAKE AHITOW, ) ) Defendants. ) ) PLAINTIFF’S DISCOVERY UPDATE AND RESPONSE TO CYNOSURE’S SEPTEMBER 2, 2022 FILING Plaintiff Elizabeth Grady hereby provides its discovery update and partially responds to Cynosures filing dated September 2, 2022. I. NO BASIS EXISTS FOR THE COURT TO ENTER CYNOSURE’S PROPOSED DISCOVERY ORDER Cynosure cannot skirt its obligation to serve and file a discovery motion pursuant to Superior Court Rule 9A by submitting an entirely new proposed Order to the Court, and asking that it be allowed as part of its now-moot motions to compel filed more than three months ago. Cynosure’s original Motions to Compel only sought an order asking that Elizabeth Grady produce documents in response to its first and second set of document requests. Elizabeth Grady has since produced over 30,000 pages of responsive material and final productions will be served imminently. Elizabeth Grady has gone above and beyond to locate and produce documents, many of which skirt the line of relevancy. Should the Court be inclined to entertain Cynosure’s proposed KO Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 Order, Elizabeth Grady respectfully requests that it be allowed ten-days to respond to each of the specific issues raised in Cynosure’s September 2, 2022 filing. II. CYNOSURE’S MOTION TO COMPEL DEPOSITIONS IS UNJUSTIFIED AND PROCEDURALLY DEFICIENT Cynosure’s request for this Court to order Elizabeth Grady witnesses to appear for depositions is wholly unjustified, procedurally deficient, and brought in bad faith. Elizabeth Grady’s witnesses are not refusing to testify nor has Elizabeth Grady unilaterally cancelled ANY deposition. The truth of the matter is that Cynosure noticed these depositions originally for late June 2022, and then unilaterally cancelled the depositions and asked Elizabeth Grady to propose new deposition dates in July, which it did. Thereafter, Elizabeth Grady made its witnesses available beginning in early August. Cynosure deposed Elizabeth Grady employees Carla Ringhdahl on August 2, 2022, and Andrea McEvoy on August 3, 2022. After Ms. Ringdahl’s deposition unnecessarily lasted until after 8:00 PM on August 2, it became apparent that the deposition of Elizabeth Grady’s CFO (Kathy DeNicola, now the owner of the business) would not be completed on the one day Cynosure had scheduled for August 9, 2022. Elizabeth Grady then proposed that her deposition be rescheduled for consecutive days (since she was not available on August 10th) to which Cynosure AGREED. The parties eventually agreed to reschedule Ms. DeNicola’s deposition on September 14 and 15. She is eager to testify and has not refused to appear. The parties also agreed to schedule Mr. Walsh’s deposition on September 17 and 18. However, less than a week after agreeing to those dates, Cynosure unilaterally cancelled Mr. Walsh’s deposition and asked for new dates. His deposition is now scheduled for October 18 and 19. Mr. Walsh is also eager to testify. Any 2 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 argument by Cynosure that Elizabeth Grady is to blame for the delayed depositions in this case is directly refuted by these undisputed facts.1 III. FACT DISCOVERY WILL LIKELY NOT BE COMPLETED BY THE NOVEMBER 2022 DEADLINE For a number of reasons it appears increasingly unlikely that the parties will complete fact discovery within the three months remaining before the November 2022 deadline. A. Cynosure Continues Its Gamesmanship With its Document Productions Nearly twenty months after Elizabeth Grady served its first set of document requests, Cynosure continues to refuse to fulfill its basic discovery obligations. The primary issue concerns the impermissibly narrow scope of Cynosure’s custodial search and the terms Cynosure is applying to locate responsive materials. Cynosure has refused to expand the scope of its search despite Elizabeth Grady’s reasonable requests. This issue is not resolved and now appears to be exacerbated as evidenced by Cynosure’s recently served responses to Elizabeth Grady’s second set of document requests (served on August 29, 2022). A true and accurate copy of Cynosure’s Responses to Elizabeth Grady’s Second Set of Document Requests is attached at Exhibit A. A few examples will help the Court understand the issues. First, in most instances, Cynosure refuses to search beyond the custodial files of defendants Kevin Thornal and Blake Ahitow for responsive documents (this is the same tactic used by Cynosure in responding to 1 Not only does Cynosure lack any good faith factual basis for entry of an order compelling these witnesses to testify, but the motion is procedurally deficient. As explained in Elizabeth Grady’s opposition, Cynosure never conferred with Elizabeth Grady as required by Rule 9C PRIOR TO serving its motion. The rule requires a conference to occur before service of the motion, not after. After service of the motion, counsel did confer and resolved the issues (at least Elizabeth Grady believed so). Despite reaching agreement on dates, Cynosure filed its motion with the Court on July 25, 2022, which was after the ten-day period set forth in Rule 9A for filing a motion after receipt of an opposition. Cynosure’s failure to file the papers within ten days of receipt of Elizabeth Grady’s opposition, and failure to comply with Rule 9A, constitutes a withdrawal of the motion. It should be denied on that basis alone. 3 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 Elizabeth Grady’s first set of document requests). Elizabeth Grady’s “Request No. 69,” for example, asks for “memoranda, reports or minutes” that “reference, discuss, relate to, identify and/or reflect consideration or approval of (a) any disposition or reorganization of Cynosure or its business components, (b) the decision to sell the Cynosure business, (c) the marketing of the Cynosure business for sale, and (d) any reason(s) therefore.” These are management level documents, for the most part. In response, Cynosure agreed only to search for responsive materials from the custodial files of the two individual defendants (Thornal and Ahitow) plus Cynosure’s former CFO, Kathy Latu. Such a narrow set of custodians ignores other key employees at the management level that undoubtedly had possession of responsive material, and ignores non- custodial sources (i.e. corporate or financial records) where responsive materials may be maintained. In addition, Cynosure only agreed to use search terms that will undoubtedly leave behind responsive materials from 2018, when Cynosure recruited Elizabeth Grady. For Request No. 69, the search terms proposed by Cynosure include only: Goldman; gs.com; and “Project Lotus.” The problem (to which Cynosure is aware) is that Hologic did not contact Goldman Sachs until mid- January of 2019 to discuss issues related to the Cynosure business, and there is no indication that Cynosure used the term Project Lotus internally or externally before January of 2019. Yet Elizabeth Grady is also looking for documents from the Fall of 2018 and earlier which will show Cynosure’s internal consideration of the future of its business at the same time it was recruiting Elizabeth Grady. None of those materials would be located or produced according to the Cynosure search parameters. This is just one example of Cynosure’s efforts to constrict its discovery obligations, which is being done purposefully to deprive Elizabeth Grady of critical documents. 4 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 Another equally important issue concerns Cynosure’s stonewalling discovery from key custodian files. One of the most important witnesses in this case is former Cynosure employee Piotr Slanda. Mr. Slanda is now employed by Hologic, but worked for Cynosure in the accounting department until the second half of 2020. Mr. Slanda is one of only two Cynosure employees (the other being newly added defendant Blake Ahitow) directly involved in preparing the financial projections which lie at the heart of this case and which became part of the misrepresentations made to Elizabeth Grady at the critical December 3, 2022 meeting. Cynosure admits in interrogatory answers that only Mr. Slanda and Mr. Ahitow worked on the financial modeling. Despite his role, Cynosure refused to designate Mr. Slanda as a document custodian. Elizabeth Grady was not even aware of Mr. Slanda’s role until Cynosure finally began making document productions in June of this year. When Elizabeth Grady finally discovered the true nature and extent of Mr. Slanda’s participation, it immediately noticed his deposition and demanded Cynosure produce his custodial files. In late June, Cynosure finally agreed to produce Mr. Slanda’s custodial files. Those files were not produced before Mr. Slanda’s July 21st deposition, however. Then, on August 4th, after Mr. Slanda’s deposition and after repeated inquiries by Elizabeth Grady, Cynosure informed Elizabeth Grady for the first time that Mr. Slanda’s custodial files had not been maintained. After further discussions about this potential spoliation issue, and the loss of an additional four weeks of discovery, Cynosure recently informed Elizabeth Grady that Hologic has maintained Mr. Slanda’s custodial files. Elizabeth Grady is still waiting for those documents to be produced. See Exhibit B (email chain between counsel concerning custodial issues). Another key witness is Derek Babin, a former Cynosure Customer Success Manager. Cynosure also refused to produce responsive materials from Mr. Babin’s custodial files, first 5 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 describing him as an irrelevant custodian, despite the fact that Cynosure’s very first exhibits in this case were emails authored by Mr. Babin. Cynosure has since refused to produce his files without Elizabeth Grady agreeing to unreasonable conditions (including overly narrow search terms). Cynosure also has informed Elizabeth Grady that the custodial files of another key witness, Erik Anderson, are also in Hologic’s possession and that Hologic will (at some point) produce his responsive files. 2 All of these custodial files should have been reviewed (and documents produced) months ago. Cynosure’s persistent and unwavering refusal to undertake the appropriate search to locate responsive materials has caused significant delays at great cost to Elizabeth Grady. B. Hologic Failed to Produce Documents By August 17, 2022 Hologic is also responsible for discovery delays. Rather than responding to a validly served and narrowly tailored subpoena duces tecum served in March 2022, Hologic and Cynosure fought the subpoena in Court and refused to produce any materials. And now, despite a Court order requiring Hologic to produce documents by August 17, Hologic failed to produce any records by the Court’s deadline. After the deadline passed, Hologic contacted Elizabeth Grady and requested additional time to produce responsive materials. Hologic finally made a first production on August 26, 2022, and has since informed Elizabeth Grady that it will take weeks to complete the remaining productions. Elizabeth Grady anticipates it will likely have to serve a second subpoena on Hologic to ensure that all proper records are identified, reviewed and produced (this is even more critical now based on recent disclosures that Hologic has retained certain custodial files of former Cynosure employees). 2 It is certainly interesting that after vigorously opposing Elizabeth Grady’s subpoena duces tecum, and advancing a number of arguments including that the responsive material being sought by Elizabeth Grady was obtainable from Cynosure and not Hologic, that it now appears Hologic has all along maintained the custodial files of key witnesses such as Mr. Slanda and Erik Anderson (Kevin Thornal’s successor at Cynosure). 6 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 C. Significant Discovery Remains to be Completed While a number of depositions have been scheduled or noticed throughout September and October, it is unlikely that the remaining additional depositions can be completed prior to the discovery deadline. Elizabeth Grady intends to take at least five additional depositions beyond the four it has noticed or taken to date (and at least one of those depositions will require Letters Rogatory from this Court). Moreover, the parties have recently served additional written discovery and Cynosure is now serving third party subpoenas. Elizabeth Grady estimates it will take at least six to seven months to complete the remaining discovery. ELIZABETH GRADY FACE FIRST, INC. D/B/A THE ELIZABETH GRADY COMPANY, By its attorneys, William A. Zucker, Esq., BBO No. 541240 Nicholas W. Allen, Esq., BBO No. 663409 McCarter & English, LLP 265 Franklin Street Boston, MA 02110-3113 617.449.6500 wzucker@mccarter.com nallen@mccarter.com September 6, 2022 7 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 CERTIFICATE OF SERVICE I, Nicholas W. Allen, hereby certify that on this 6th day of September, 2022, I served a copy of the foregoing document upon defendants’ counsel of record via email, in compliance with the applicable Supreme Judicial Court Order in re: COVID-19 (coronavirus) Pandemic, concerning email service in cases under Rule 5(b) of Mass. Rules Civil Procedure. ______________________________ Nicholas W. Allen 8 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 EXHIBIT A Date Filed 9/6/2022 12:51 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 OBJECTIONS AND RESPONSE TO PLAINTIFF’S SECOND REQUEST FOR DOCUMENTS Defendant Cynosure, LLC, f/k/a Cynosure, Inc. (“Cynosure”), by and through undersigned counsel, hereby respond to Plaintiff Elizabeth Grady Face First Inc. d/b/a The Elizabeth Grady Company’s (“Plaintiff’) Second Request for Production of Documents (“Requests”) to Cynosure, dated July 28, 2022, as follows: PRELIMINARY STATEMENT Cynosure provides this Response based upon investigation conducted in the time available since service of Plaintiff’s Requests. This Response is based upon information now known to Cynosure, which Cynosure believes to be pertinent in objecting or responding to Plaintiff’s Requests. Cynosure may later discover or acquire additional information bearing on Plaintiff’s Requests and Cynosure’s objections and responses thereto. Without in any way obligating itself to do so, Cynosure reserves the right: (a) to make subsequent revisions or amendments to its objections and this Response based upon information, evidence, documents, facts, and/or other Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 things that hereafter may be discovered, or the relevance of which may hereafter be discovered; and (b) to produce, introduce, or rely upon additional or subsequently acquired or discovered writings, evidence, and information in any proceedings or at any trial held hereafter. Further, any response by Cynosure to a particular request is not intended to be, and shall not be construed as, an admission of the existence of any fact, assertion, or other matters expressed or implied in any of the Requests. By agreeing to produce documents or information responsive to any request, Cynosure does not admit that any responsive documents or information exists. Cynosure’s agreement to produce documents is subject to the Protective Order in this case. Cynosure incorporates this Preliminary Statement into each objection and response as if fully set forth in its entirety. GENERAL OBJECTIONS Cynosure makes the following General Objections to Plaintiff’s Requests, which are expressly incorporated into each of Cynosure's Specific Objections and Responses as though fully set forth in full and without waiving these General Objections. To the extent a specific objection is cited in response to a request, that specific objection is provided because it is believed to be particularly applicable to the specific request and is not construed as a waiver of any of these General Objections. 1. Cynosure objects to Plaintiff’s Requests as overly burdensome and unduly prejudicial insofar as Plaintiff’s Complaint fails to state a viable cause of action. 2. To the extent Cynosure agrees to produce documents in response to the Plaintiff’s Requests, that means that it will conduct a reasonable search of available, centrally maintained locations which are reasonably accessible and reasonably likely to contain responsive documents. Cynosure will produce and will not withhold non-privileged, responsive documents located as a 2 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 result of such a search. However, Cynosure objects to the extent that the Plaintiff’s Requests purport to require Cynosure to search other sources, including custodial ESI, for potentially responsive documents, on the basis that such search efforts would be unduly burdensome, cumulative, and disproportionate to the needs of the case. Specifically, Cynosure believes that it can reasonably respond to the Requests set forth below based on searches of centrally maintained records, and that the time and expense involved in searching custodial ESI and other sources (including processing and vendor costs and attorney responsiveness and privilege review time) outweighs the low probability that information which is non-cumulative and material to the case would be contained in such sources. Accordingly, unless expressly stated otherwise below, Cynosure does not intend to search custodial ESI sources or other sources outside the centrally maintained locations referred to above. Further, to the extent any Response refers to the “agreed upon custodians,” such response is referring only to the custodians specifically identified in response to other Requests herein. 3. Cynosure objects to the extent that Plaintiff's Requests seek information protected from disclosure by the attorney-client privilege, the attorney work product doctrine, and/or other privileges, immunities, and legal protections against disclosure. Nothing contained herein is intended to be, nor shall in any way be construed as, waiving any attorney-client privilege, work product doctrine, right to privacy, or any other applicable privilege, doctrine, law, immunity, or rule protecting information from disclosure. 4. Cynosure objects to the extent that the Plaintiff's Requests seek documents that are non-public, confidential, and/or competitively sensitive, and which contain proprietary and confidential business and financial information, including information constituting or pertaining to trade secrets, personnel information and/or other competitively sensitive research, development, 3 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 or other commercial information. Cynosure’s production of any documents in response to Plaintiff’s Requests is accordingly made for the purposes of this litigation only, and shall be treated as confidential to the extent such documents are designated as confidential. 5. Cynosure objects to Plaintiff’s Requests to the extent they seek discovery of private or personal information related to patients and/or users of any pharmaceutical products, participants in clinical trials, reporters of adverse events, personnel files, or other personal information that is protected. See 21 U.S.C. § 360(i)(b)(3); 21 C.F.R. § 20.63. Information that identifies patients and physicians or any other information protected by law will be redacted from any documents produced. 6. Cynosure’s agreement to produce documents is subject to the terms of the Protective Order entered in this Action. 7. Cynosure objects to Plaintiff's Requests to the extent that they seek the discovery of information or material that is not in the knowledge, possession, custody, or control of Cynosure. This includes, but is not limited to, any information or material in the possession of Hologic. Accordingly, for each and every custodian identified in response to Plaintiff’s Requests, Cynosure agrees only to produce the responsive, non-privileged, non-protected information or material described, to the extent any exists, from those custodians’ files during the time in which they were employed by Cynosure and does not agree to search or produce from such custodial files to the extent such custodian became an employee of Hologic following the November 20, 2019 divestiture. 8. Cynosure objects to Plaintiff's Requests to the extent that they seek information that is available through less burdensome means of discovery or other sources of information, in that the information requested is: (a) in the possession, custody, or control of Plaintiff; or (b) in the 4 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 possession, custody, or control of other parties or non-parties. Cynosure will produce documents only to the extent that such documents are in the possession, custody, or control of Cynosure. 9. Cynosure objects to Plaintiff’s Requests to the extent that they seek the production of documents without date restrictions, which imposes a burden disproportionate to the needs of this case. Cynosure will search for and produce non-privileged responsive documents, if any, from January 1, 2018 to December 8, 2020, which is the date on which Plaintiff filed its Complaint in this matter. These General Objections, as well as the objections set forth in the Preliminary Statement above, are incorporated by reference in the response to each individual Request as if fully set forth therein. OBJECTIONS TO INSTRUCTIONS Cynosure objects to the Instructions contained in Plaintiff’s Requests to the extent the Instructions seek to impose obligations beyond those set forth in the governing procedural rules. Responses to these requests shall be supplemented and/or amended to the extent required by Mass. R. Civ. P. 26(e). OBJECTIONS TO DEFINITIONS Cynosure objects to the Definitions contained in Plaintiff’s Requests to the extent the Definitions seek to impose obligations beyond those set forth in the governing procedural rules. RESPONSE TO DOCUMENT REQUESTS REQUEST NO. 69: Any and all memoranda, reports or minutes (from or to any committee, board of directors, officer or manager) that reference, discuss, relate to, identify and/or reflect consideration or approval of (a) any disposition or reorganization of Cynosure or its business components, (b) the 5 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 decision to sell the Cynosure business, (c) the marketing of the Cynosure business for sale, and (d) any reason(s) therefore. RESPONSE TO REQUEST NO. 69: Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks the production of “all” documents and to the extent it seeks the production of documents pertaining to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also objects this Request to the extent it is duplicative of Plaintiff’s Request Nos. 1 and 2. Cynosure also objects to this Request to the extent it is duplicative of Request No. 1 in Plaintiff’s Subpoena Duces Tecum served on Hologic, Inc. (“Hologic Subpoena”), see Dkt. No. 37.1, Ex. A, and that it calls for information or documents that are in the possession, custody, or control of Hologic, Inc. Subject to and without waiver of its objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure from the custodial email files of Kevin Thornal and Blake Ahitow using the following responsive search terms: Goldman or GS.com or “Project Lotus.” Also, subject to and without waiver of its objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non- protected, responsive communications with Goldman Sachs & Co., LLC (“Goldman”) that have as their subject the divestiture of Cynosure from the custodial email files of Kevin Thornal using the following responsive search terms: Goldman or GS.com or “Project Lotus.” Additionally, subject to and without waiver of its objections, Cynosure states that it will search the custodial email files of Kathy Latu to produce non-privileged, non-protected, responsive documents 6 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure or non-privileged, non-protected, responsive communications with Goldman that have as their subject the divestiture of Cynosure using the following responsive search terms: Goldman or GS.com or “Project Lotus.” REQUEST NO. 70. Any and all documents that reference, discuss, relate to, identify and/or reflect the decision to engage any investment banker, including Goldman Sachs & Co., LLC (“Goldman”), with respect to Cynosure’s business in connection with the possible sale, reorganization, or other disposition thereof. RESPONSE TO REQUEST NO. 70: Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks the production of “all” documents and to the extent it seeks the production of documents pertaining to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also objects to this Request to the extent it is duplicative of Request No. 2 in Plaintiff’s Hologic Subpoena, and that it calls for information or documents that are in the possession, custody, or control of Hologic, Inc. Subject to and without waiver of its objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure from the custodial email files of Kevin Thornal and Blake Ahitow using the following responsive search terms: Goldman or GS.com or “Project Lotus.” Also, subject to and without waiver of its 7 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non- protected, responsive communications with Goldman that have as their subject the divestiture of Cynosure from the custodial email files of Kevin Thornal using the following responsive search terms: Goldman or GS.com or “Project Lotus.” Additionally, subject to and without waiver of its objections, Cynosure states that it will search the custodial email files of Kathy Latu to produce non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure or non-privileged, non-protected, responsive communications with Goldman that have as their subject the divestiture of Cynosure using the following responsive search terms: Goldman or GS.com or “Project Lotus.” REQUEST NO. 71. All documents that identify the date on which Cynosure and/or Hologic first contacted Goldman in connection with the anticipated sale or disposition of the Cynosure business and the documents that constitute Hologic’s agreement(s) with Goldman to manage or provide advice with respect to the Cynosure sale. RESPONSE TO REQUEST NO. 71: Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks the production of “all” documents and to the extent it seeks the production of documents pertaining to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also objects to this Request to the extent it is duplicative of Request No. 3 in Plaintiff’s Hologic Subpoena, and that it calls for information or documents that are in the possession, custody, or control of Hologic, Inc. Cynosure further objects to this Request to the extent it is duplicative of 8 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 Request No. 1 in Plaintiff’s Subpoena Duces Tecum served on Goldman (the “Goldman Subpoena”). See Dkt. No. 30, Ex. A. Subject to and without waiver of its objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure from the custodial email files of Kevin Thornal and Blake Ahitow using the following responsive search terms: Goldman or GS.com or “Project Lotus.” Also, subject to and without waiver of its objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non- protected, responsive communications with Goldman that have as their subject the divestiture of Cynosure from the custodial email files of Kevin Thornal using the following responsive search terms: Goldman or GS.com or “Project Lotus.” Additionally, subject to and without waiver of its objections, Cynosure states that it will search the custodial email files of Kathy Latu to produce non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure or non-privileged, non-protected, responsive communications with Goldman that have as their subject the divestiture of Cynosure using the following responsive search terms: Goldman or GS.com or “Project Lotus.” REQUEST NO. 72. Any and all documents or other communications that involve one or more of Kevin Thornal, Blake Ahitow, Karleen Oberton, John Griffin, Steve MacMillan, Kathleen Latu, Eric Anderson, and/or Andrea Schwab, that reference, discuss, relate to, identify and/or reflect (a) any disposition or reorganization of Cynosure or its business components, (b) the decision to sell the Cynosure business, (c) the marketing of the Cynosure business for sale, and (d) any reason(s) therefore. 9 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 RESPONSE TO REQUEST NO. 72: Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks the production of “all” documents and to the extent it seeks the production of documents pertaining to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also objects to this Request as compound. Cynosure also objects to this Request to the extent it is duplicative of Request No. 4 in Plaintiff’s Hologic Subpoena, and that it calls for information or documents that are in the possession, custody, or control of Hologic, Inc. Cynosure further objects to this Request to the extent it seeks the documents of Andrea Schwab, as—based on a reasonable investigation to date—Ms. Schwab did not participate in the Elizabeth Grady deal nor did she participate in the decisions to sell the Cynosure business, the marketing of the Cynosure business for sale, or any matter related to the divestiture. Cynosure also objects to this request as duplicative of Request No. 69. Subject to and without waiver of its objections, Cynosure incorporates its objections and response to Request No. 69, and states that, as previously communicated to Plaintiff, Cynosure does not possess the files of Mr. Anderson. Further, subject to and without waiver of its objections, as previously communicated to Plaintiff, Mr. Oberton, Mr. Griffin, and Mr. MacMillan are not and were not Cynosure employees. REQUEST NO. 73. All documents that constitute the “comprehensive turnaround plan” (as referenced on Page 15 of a certain “Project Lotus Confidential Information Presentation” dated from July of 2019) (or whatever terminology Cynosure management used to describe the plan referenced in the Goldman 10 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 presentation), for Cynosure’s medical aesthetics business in 2018 and 2019, together with all memorandum or reports having as their subject matter the reasons for implementing the turnaround plan, and Cynosure’s performance against such plan. RESPONSE TO REQUEST NO. 73: Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks the production of “all” documents and to the extent it seeks the production of documents pertaining to the divestiture of Cynosure, which has no bearing on the claims brought by Plaintiff as those claims only pertain to the contractual relationship between Cynosure and Plaintiff. Cynosure also objects to this Request to the extent it is duplicative of Request No. 5 in Plaintiff’s Hologic Subpoena, and that it calls for information or documents that are in the possession, custody, or control of Hologic, Inc. Finally, Cynosure objects to this Request to the extent that, as already communicated to Plaintiff—based on a reasonable investigation to date—a “turnaround plan” does not exist. See, e.g., J. Wiesner. August 4, 2022 email (“In any case, we previously informed you on July 13, 2022 that we had done a reasonable and diligent search for documents reflecting a business initiative termed or referred to as a ‘turnaround plan’ and had not identified any such documents.”). Subject to and without waiver of its objections, Cynosure states that it has agreed to produce, and has produced, high-level business plans related to its medical aesthetics business in 2018 and 2019, from the custodial email files of Kevin Thornal and Blake Ahitow and centrally maintained and reasonably accessible locations using reasonable and targeted electronic searching, including, but not limited to, Cyno_EG_00033110 - Cyno_EG_00033095. Additionally, subject to and without waiver of its objections, Cynosure also states that it ran a search, “turnaround w/3 11 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 plan,” in the custodial files of Blake Ahitow and Kevin Thornal and did not identify responsive documents. See, e.g., J. Wiesner April 4, 2022 email (noting that Cynosure would run this search). Further, subject to and without waiver of its objections, Cynosure states that it will search the custodial email files of Kathy Latu to produce non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure or non-privileged, non-protected, responsive communications with Goldman that have as their subject the divestiture of Cynosure using the following responsive search term: “turnaround w/3 plan.” REQUEST NO. 74. The documents that formed the basis for the computation of historic revenue performance for “body” and “skin” together with documents showing the historic revenue for each component of “body” and “skin”, which are set forth on page 90 of that certain “Project Lotus Confidential Information Presentation” dated from July of 2019. RESPONSE TO REQUEST NO. 74: Cynosure objects to this Request as irrelevant, overly broad, unduly burdensome, and disproportionate to the needs of this case particularly but not exclusively to the extent that it seeks the production of “all” documents. Cynosure also objects to this Request as vague and ambiguous insofar as it fails to define “computation of historic revenue performance,” and “historic revenue for each component of.” Cynosure also objects to this Request to the extent it is duplicative of Request No. 6 in Plaintiff’s Hologic Subpoena, and that it calls for information or documents that are in the possession, custody, or control of Hologic, Inc. Cynosure further objects to this Request to the extent that it did not prepare the Project Lotus Confidential Information presentation dated from July of 2019. 12 Date Filed 9/6/2022 12:51 PM Superior Court - Middlesex Docket Number 2081CV02967 Subject to and without waiver of its objections, Cynosure states that it has agreed to produce, and has produced, non-privileged, non-protected, responsive documents reflecting corporate decisions regarding the sale, disposition, or reorganization of Cynosure from the