Preview
Date Filed 9/6/2022 4:35 PM
Superior Court - Middlesex
Docket Number 2081CV02967
47.1 J
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY 9/6/2022
COMPANY,
Plaintiff, CIVIL ACTION NO. 2081-CV-02967
v.
CYNOSURE, INC., and
KEVIN THORNAL,
Defendants.
CYNOSURE, LLC’S UPDATE TO THE COURT ON STATUS OF DISCOVERY, AND
SUPPLEMENT TO MOTIONS TO COMPEL
Since Cynosure filed its various motions to compel, see Dkts. 38-39.4 (documents), 43-44
(depositions), it has continued to meet-and-confer with Plaintiff rather than seek a ruling from the
Court because it believed progress could be made on many of the outstanding issues. Indeed,
Plaintiff agreed to produce many of the items Cynosure has requested, but inexplicably has not
done so. Given the approaching depositions and end of discovery, Cynosure no longer can wait
indefinitely for Plaintiff to fulfil its promises. Further, Plaintiff has not answered whether it will
produce certain key information, especially critical financial documents. Cynosure thus has no
choice but to seek the Court’s intervention. Accordingly, Cynosure respectfully requests that the
Court (1) compel Plaintiff to produce all documents responsive to Cynosure’s First and Second
Sets of Requests for Production (“RFP”) that Plaintiff can obtain from its centrally maintained
files or any other sources of responsive information, including but not limited to the below specific
items enumerated in Cynosure’s RFPs, and including any responsive documents in the possession
KO
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of Plaintiff’s individual franchisees; and (2) enter an order regarding the deposition dates the
parties agreed to for John Walsh and Kathy DeNicola. A Proposed Order is attached at Exhibit A.
Motions to Compel Document Productions: Cynosure moved to compel because Plaintiff
was not producing critical documents. Despite multiple emails and phone calls since then,1 and
despite plaintiff’s representation that its production was “substantially complete” as of July 22,
critical categories of documents have not yet been produced. These include key items related to
Plaintiff’s financial history, damages claims, and efforts to market the devices at issue in the
litigation, including documents from Plaintiff’s individual franchisees.
These are not tangential issues: Plaintiff alleges that it suffered “its first revenue and
working capital losses in 25 years” as a result of the product lease agreement and seeks lost profits.
See Second Amended Complaint (“SAC”), Dkt. 46, Introduction; id. ¶ 52 (alleging past and
continuing losses, expenses for “changes in [Plaintiff’s] physical space to accommodate Cynosure
equipment,” and asserting that Plaintiff “did not have working capital reserves necessary to meet
the challenge of Covid upon its business”). Plaintiff further asserts that it bears no responsibility
for its losses because it made “commercially reasonable efforts to market and advertise the
Cynosure products.” Id. ¶ 46.
While Plaintiff has agreed to produce certain financial documents, including “responsive
business valuations” and “communications,” “EG’s revenue, profits, losses, etc. over the relevant
See Ex. 1 (June 20, 2022 email from J. Wiesner identifying deficiencies and requesting to
1
meet and confer; August 1, 2022 email from J. Wiesner following up on the timing of Plaintiff’s
production; August 8, 2022 Email from N. Allen confirming that Plaintiffs would supplement
responses “within the next few weeks”); Ex. 2 (August 11, 2022 email from J. Wiesner reiterating
deficiencies and offering to meet and confer); Ex. 3 (August 19, 2022 email from J. Wiesner
following up on deficiencies and offering to meet and confer; August 29, 2022 email from J.
Wiesner expressing that issues remain unresolved and asking to meet and confer).
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time period,” “updated numbers regarding gross/net revenue,” and “documents showing the value
of the business and/or attempts to sell the business during the relevant time period,” see Ex. 1 (June
23, 2022 email from N. Allen); Ex. 3 (August 26, 2022 email from N. Allen), those productions
remain deficient, and Plaintiff has yet to produce even basic financial data such as its audited year-
end financial statements, despite agreeing to do so more than a year ago. See Ex. 4 (March 25,
2021 email from J. Wiesner memorializing March 24, 2021 meet and confer). Nor has Plaintiff
agreed to produce any additional financial data, such as monthly revenue, sales, and expenses
broken down by service; franchise fees; consolidated monthly company-level revenue and expense
data; balance sheets; numbers of procedures performed; capacity data; valuations performed; etc.
The absence of these documents is particularly glaring given the testimony of Plaintiff’s Director
of Franchise Operations, Carla Ringdahl, who testified that she had financial information in her
house including at least cumulative reports reflecting individual franchise performance, and of
Plaintiff’s Director of Salon Operations, Andrea McEvoy, who testified that she regularly received
similar reports regarding company-owned salons and could access additional, specific data.
Likewise, Plaintiff has not produced any documents from its franchisees. Cynosure has
asked twice that plaintiff confirm that it is searching those files, but has received no response. See
Ex. 2 (August 11, 2022 email from J. Wiesner requesting documents from franchisees responsive
to various RFPs); Ex. 3 (August 29, 2022 email from J. Wiesner asking Plaintiff to confirm that it
will search for documents from franchisees). And the production received to date, does not appear
to include any such documents from the franchisees.2 As plaintiff alleges it “lost substantial
2
Such documents certainly exist, as evidenced by public records showing the testimony of
former franchisees that they could not reopen their stores because of financial difficulties resulting
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revenues” due in part to “franchise discontent,” see SAC ¶ 52, it is imperative that Cynosure test
whether and to what extent the franchise stores suffered any losses during the relevant time period,
and the reasons for such losses. Without the items identified below, Cynosure cannot fully
evaluate these allegations and prepare a complete defense.
Even so, Plaintiff has neither responded substantively to Cynosure’s communications,
produced the requested documents, nor explained why it opposes producing the specified items.
See Exs. 1-3. Indeed, when Plaintiff did respond, it did so only to vaguely assert that some
unspecified documents have been produced. See, e.g., Ex. 3 (August 26, 2022 email from N. Allen
noting, for example, that “a number” of responsive documents have been produced). But Plaintiff
has not identified any specific documents it believes are responsive to those requests, indicated
what additional documents will be produced, or confirmed by when they will be produced.
Although Cynosure requested a meet and confer to clarify these issues, it has received no response.
See id. (August 29, 2022 email from J. Wiesner requesting meet and confer). Cynosure has been
left wondering when or if it will receive basic documents such as Plaintiff’s financial data and
records from Plaintiff’s individual franchisees.
Given the upcoming depositions, and in light of Plaintiff’s refusal to engage, it is apparent
that no further meet and confer will resolve these issues, and they are ripe for judicial intervention.
Cynosure accordingly requests that the Court compel production of the items identified in its
Motions to Compel, including at least the below items, which are discussed in more detail in the
RFPs and Cynosure’s correspondences with Plaintiff’s counsel, see Exs. 1-3:
from Covid-19 and the agreement with Cynosure. See Affidavit of Dimitrios Ioannidis, Birtwell
v. Elizabeth Grady, No. 2184-CV-280, Dkt. 15, Ex. 6 at 99:15-100:9 (June 9, 2022).
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1) RFP Nos. 4-8, 37 - Documents surrounding the lead-up to and execution of the Product
Lease Agreement (“PLA”);
2) RFP No. 18 - Advertisements and marketing material created on Plaintiff’s behalf,
including documents relating to any third-party marketing providers Plaintiff may have
used;
3) RFP No. 19 - Documents showing Plaintiff’s marketing expenses related to the SculpSure
and Icon devices, including any comprehensive budgets, plans, or overall expenditure
reports, such as but not limited to profit and loss statements;
4) RFP No. 20 - Documents showing any other expenses regarding the SculpSure and Icon
devices, the Product Lease Agreement, or the Letter Agreement, which Plaintiff agreed to
produce in June 2022, such as fees incurred seeking or obtaining the services of a medical
director to allow for use of the devices;
5) RFP No. 24 - Documents reflecting the total revenue, including both (1) gross revenue and
(2) net revenue as described in Exhibit B to the PLA, obtained by providing services using
the SculpSure device and the Icon device, including monthly reports for the individual
franchisees and corporate locations, aggregated reports, and underlying data;
6) RFP Nos. 25-26, 39 - Documents supporting Plaintiff’s alleged losses;
7) RFP Nos. 27-29, 39 - Documents showing Plaintiff’s gross and net revenue in the last five
years, as well as state and federal tax returns for those years, as well as financial statements,
audit reports, compilations, or reviewed statements for the last five years;
8) RFP Nos. 30-31, 39 - Documents reflecting any attempt by Plaintiff to sell its business
between January 1, 2018 and December 8, 2020, as well as how, if at all, Plaintiff’s
relationship with Cynosure affected the valuation of Plaintiff’s business;
9) RFP No. 43 - Documentation of monthly available and scheduled appointments for the 10
highest revenue-generating procedures in Plaintiff’s stores and franchises, as well as those
for SculpSure and Icon procedures, including documents Andrea McEvoy alluded to in her
deposition;
10) RFP No. 45 - Documents related to business projections and market analyses Plaintiff
performed in the relevant time period, which Plaintiff agreed to produce.
These documents pertain, at minimum, to Plaintiff’s allegations that it “would never have
entered into the Agreement” if not for certain alleged representations by Cynosure, SAC ¶ 53;
incurred damages as a result of entering the PLA, id. ¶¶ 58-59; made “commercially reasonable
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efforts to market and advertise the Cynosure products,” id. ¶ 46; “suffered substantial losses of
revenue,” id. ¶ 52; suffered “a year-end financial loss [in 2019] for the first time in over 25 years
of Walsh’s ownership and did not have working capital reserves necessary to meet the challenge
of Covid upon its business,” id. ¶ 52; “has been substantially damaged, and continues to suffer
damages” as a result of having “agreed to lease certain Cynosure equipment for placement in its
salons,” id. ¶¶ 58-59; was “concern[ed] about providing dedicated space for the machines that
would be non-revenue producing,” id. ¶ 30, and lost “substantial revenues and its working capital
. . . from changes in its physical space to accommodate Cynosure equipment and services,” id. ¶
52. In addition, these documents pertain to Plaintiff’s own financial condition and efforts to
comply with the PLA.
Motions to Compel Depositions: Cynosure filed a motion to compel the depositions of five
fact witnesses and a Rule 30(b)(6) deposition of Plaintiff, first requested on May 10, 2022. After
filing that motion, Plaintiff finally agreed to schedule two depositions subject to that motion: Carla
Ringdahl and Andrea McEvoy were deposed on August 2, 2022 and August 3, 2022, respectively.
Neither the depositions of Ms. DeNicola, Mr. Walsh, nor the 30(b)(6) deposition of Plaintiff have
occurred. Although those depositions have now been scheduled, Plaintiff provided dates only after
repeated requests by Cynosure. See, e.g., Ex. 3 (August 19, 2022 email from J. Wiesner); Ex. 7
(August 4, 2022 email from J. Wiesner; July 29, 2022 email from J. Wiesner). Given the delay in
scheduling those depositions, and the fact that they are happening much later in the discovery
period than originally intended, Cynosure believes that it is necessary to enter an order requiring
those depositions to occur on the noticed dates. Specifically, Cynosure and Plaintiff have agreed
to the following deposition dates:
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Docket Number 2081CV02967
1) Deposition of Kathy DeNicola (and Rule 30(b)(6) topics) - September 14, 15, and, if
necessary, thereafter until completed or otherwise adjourned or continued;
2) Deposition of John Walsh (and Rule 30(b)(6) topics) - October 18, 19, and, if necessary,
thereafter until completed or otherwise adjourned or continued.
See Ex. 7 (August 10, 2022 email from J. Wiesner and August 23, 2022 response from N. Allen
scheduling deposition of John Walsh); Ex. 5 (combined deposition notices for Kathy DeNicola,
John Walsh, and Elizabeth Grady Face First Inc. dba the Elizabeth Grady Company).3
Because of the repeated challenges in obtaining dates, Cynosure cannot afford to wait any
longer to take these depositions. As discussed above, however, Plaintiff has not yet produced
documents and information essential to each deposition. Cynosure has repeatedly requested that
Plaintiff confirm that those documents will be produced no later than two weeks before the pending
depositions so that Cynosure can have sufficient time to review and prepare. See Ex. 2 (August
11, 2022 email from J. Wiesner requesting documents “sufficiently in advance of the upcoming
depositions”); Ex. 3 (August 19, 2022 email from J. Wiesner requesting documents “a minimum
of two weeks in advance of Ms. DeNicola’s deposition”). Plaintiff has not done so. Nor, given
the dates, can Plaintiff now produce documents sufficiently in advance of Ms. DeNicola’s
deposition. As such, Cynosure respectfully requests that this Court enter an order requiring the
above witnesses to be made available for a further depositions related to any documents subject to
the aforementioned requests, to the extent such documents have not been produced at least two
weeks before each witness’s scheduled deposition.4
Plaintiff’s counsel has represented that Ms. DeNicola and Mr. Walsh will be adequately
3
prepared to answer all 30(b)(6) topics noticed.
4
Cynosure also has requested depositions of Cate Tool, Kristen Salerno, and Stephanie
Scarano, see Ex. 3 (August 19, 2022 email from J. Wiesner); Ex. 7 (August 4, 2022 email from J.
Wiesner), but Plaintiff has not confirmed dates.
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Docket Number 2081CV02967
Dated: September 2, 2022 Respectfully submitted,
/s/ Michael J. Pineault
Michael J. Pineault (BBO No. 555314)
ANDERSON & KREIGER LLP
50 Milk Street, 21st Floor
Boston, MA 02109
mpineault@andersonkreiger.com
T: +1 617.621.6578
F: +1 617.621.6619
Daniel S. Pariser (pro hac vice)
J. A. Wiesner (pro hac vice)
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, D.C. 20001
daniel.pariser@arnoldporter.com
J..wiesner@arnoldporter.com
T: +1 202.942.5000
F: +1 202.942.5999
Lori B. Leskin (pro hac vice)
Leah R. Novak (pro hac vice)
ARNOLD & PORTER KAYE SCHOLER LLP
250 West 55 St.,
New York, N.Y. 10019
lori.leskin@arnoldporter.com
leah.novak@arnoldporter.com
T: +1 212.836.8000
F: +1 212.836.8689
Counsel for Defendant Cynosure, LLC
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Docket Number 2081CV02967
CERTIFICATE OF SERVICE
I certify that, pursuant to the agreement of counsel, I caused this document to be served
on counsel of record for the other parties by email this second day of September, 2022.
/s/ Michael J. Pineault
Michael J. Pineault
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Docket Number 2081CV02967
EXHIBIT A
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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.
[PROPOSED] ORDER
Upon review, and after hearing on Defendant Cynosure’s Motions to Compel Production
of Documents (Dkts. 38, 39) and Defendant Cynosure’s Motion to Compel Deposition
Appearances of Key Plaintiff Witnesses (Dkt. 43), it is HEREBY ORDERED as follows:
1. Cynosure’s Motions to Compel Production of Documents (Dkts. 38, 39) are
ALLOWED. Within 15 days of this Order, Plaintiff Elizabeth Grady Face First Inc. (“Plaintiff”
or “Elizabeth Grady”) shall produce all documents responsive to Cynosure’s First and Second Sets
of Requests for Production (“RFP”) that Plaintiff can obtain from its centrally maintained files or
any other sources of responsive information, including but not limited to the below specific items
enumerated in Cynosure’s RFPs, and including any responsive documents in the possession of
Plaintiff’s individual franchisees:
a. RFP Nos. 4-8, 37 - Documents surrounding the lead-up to and execution of the Product
Lease Agreement (“PLA”);
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Docket Number 2081CV02967
b. RFP No. 18 - Advertisements and marketing material created on Plaintiff’s behalf,
including documents relating to any third-party marketing providers Plaintiff may have
used;
c. RFP No. 19 - Documents showing Plaintiff’s marketing expenses related to the
SculpSure and Icon devices, including any comprehensive budgets, plans, or overall
expenditure reports, such as but not limited to profit and loss statements;
d. RFP No. 20 - Documents showing any other expenses regarding the SculpSure and
Icon devices, the Product Lease Agreement, or the Letter Agreement, which Plaintiff
agreed to produce in June 2022, such as fees incurred seeking or obtaining the services
of a medical director to allow for use of the devices;
e. RFP No. 24 - Documents reflecting the total revenue, including both (1) gross revenue
and (2) net revenue as described in Exhibit B to the PLA, obtained by providing
services using the SculpSure device and the Icon device, including monthly reports for
the individual franchisees and corporate locations, aggregated reports, and underlying
data;
f. RFP Nos. 25-26, 39 - Documents supporting Plaintiff’s alleged losses;
g. RFP Nos. 27-29, 39 - Documents showing Plaintiff’s gross and net revenue in each of
the last five years, as well as state and federal tax returns for those years, as well as
financial statements, audit reports, compilations, or reviewed statements for each of the
last five years;
h. RFP Nos. 30-31, 39 - Documents reflecting any attempt by Plaintiff to sell its business
between January 1, 2018 and December 8, 2020, as well as how, if at all, Plaintiff’s
relationship with Cynosure affected the valuation of Plaintiff’s business;
i. RFP No. 43 - Documentation of monthly available and scheduled appointments for the
10 highest revenue-generating procedures in Plaintiff’s stores and franchises, as well
as those for SculpSure and Icon procedures, including documents Andrea McEvoy
alluded to in her deposition;
j. RFP No. 45 - Documents related to business projections and market analyses Plaintiff
performed in the relevant time period, which Plaintiff agreed to produce.
2. Cynosure’s Motion to Compel Deposition Appearances of Key Plaintiff Witnesses
(Dkt. 43) is ALLOWED. It is HEREBY ORDERED that:
a. The deposition of Kathy DeNicola, both individually and as Plaintiff’s representative
regarding all Rule 30(b)(6) topics for which she has been designated, shall take place
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on September 14 and 15, and, if necessary, shall continue from day to day thereafter
until completed or otherwise adjourned or continued;
b. The deposition of John Walsh, both individually and as Plaintiff’s representative
regarding all Rule 30(b)(6) topics for which he has been designated, shall take place
on October 18 and 19, and, if necessary, shall continue from day to day thereafter
until completed or otherwise adjourned or continued;
c. In addition to the foregoing, Plaintiff shall make both Ms. DeNicola and Mr. Walsh
available for further deposition with respect to any documents not produced by
Plaintiff at least two weeks before each witness’s scheduled deposition dates; and
d. Within 7 days of this Order, Plaintiff shall provide to Cynosure specific dates prior to
October 31, 2022 on which Cate Tool, Kristen Salerno, and Stephanie Scarano shall
make themselves available for deposition.
SO ORDERED.
__________________________
Justice of the Superior Court
Date: _____________
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Docket Number 2081CV02967
Exhibit 1
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Docket Number 2081CV02967
From: Allen, Nicholas
To: Wiesner, Jocelyn; Zucker, William
Cc: Leskin, Lori B.; Pariser, Daniel; Novak, Leah; Michael J. Pineault; Sharon, William
Subject: RE: Elizabeth Grady v. Cynosure – Discovery Follow-Up Questions
Date: Monday, August 8, 2022 9:26:53 AM
External E-mail
Jocelyn:
We are working on supplementing interrogatory answers 17 and 19, and perhaps others. Our goal
is to serve those within the next few weeks, and well in advance of the rescheduled 30(b)(6)
depositions and Walsh/DeNicola depositions. We also have supplemental documents that we will
produce in the same time frame. Some of those documents will be responsive to the requests
identified in the below emails.
Thanks,
Nick
From: Wiesner, Jocelyn
Sent: Monday, August 1, 2022 1:34 PM
To: Allen, Nicholas ; Zucker, William
Cc: Leskin, Lori B. ; Pariser, Daniel
; Novak, Leah ; Michael J.
Pineault ; Sharon, William
Subject: RE: Elizabeth Grady v. Cynosure – Discovery Follow-Up Questions
**External Message**
Nick:
I am writing to check on the status of Plaintiff’s production in response to each of the RFPs identified
below, as well as the timing of Plaintiff’s supplemental response to Interrogatory Nos. 17/19.
Thank you,
Jocelyn
From: Allen, Nicholas
Sent: Thursday, June 23, 2022 1:12 PM
To: Wiesner, Jocelyn ; Zucker, William
Cc: Leskin, Lori B. ; Pariser, Daniel
; Novak, Leah ; Michael J.
Pineault
Subject: RE: Elizabeth Grady v. Cynosure – Discovery Follow-Up Questions
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Docket Number 2081CV02967
External E-mail
Jocelyn:
Please consider this as a response to your emails from last Friday and Monday. We address below
the various points raised in those emails.
1. Document Productions/Custodians: We see no reason at this point for Cynosure to be
unwilling to commit to substantially completing document productions by the second week of
July. The custodians with relevant records should have long been known to Cynosure. We
have been consistent with our position regarding custodians – all Cynosure employees who
attended the December 3, 2018 meeting should have been included as custodians (they were
not), and it was Cynosure’s burden to identify other management level custodians (as
Elizabeth Grady is not privy to that information, which is why we requested an organizational
chart, which request has been repeatedly ignored). We have never had a formal agreement
regarding custodians. The document productions recently made by Cynosure to date finally
shed light on other custodians. It is our position that all custodians identified in our email
from June 15 should have their records searched for responsive materials, and that until
records from those custodians are searched/produced, Cynosure’s document productions are
incomplete. We reserve our right to seek records from additional custodians as well, as
Cynosure has not been forthcoming on the identities of its custodians.
2. Depositions: We remain committed to making our witnesses available for deposition as soon
as possible. We will speak with those witnesses shortly concerning their availability for the
dates listed in your updated notices, and will propose alternative dates if necessary.
However, we still insist that both parties substantially complete document productions before
depositions begin. Obviously the Court will decide on some of the issues that have held up
discovery to date, but otherwise there should be no further delays in completing
productions. As noted above, we reject any attempt to blame Elizabeth Grady for fabricated
delays merely because we have recently identified custodians that Cynosure should have
disclosed long-ago. It was and remains Cynosure’s burden to identify and produce all relevant
records.
3. Specific Discovery Requests:
a. RFP 15 – we still question the relevancy of this request, but in the spirit of compromise
we will check applicable personnel records for any job applications or resumes that
might be responsive.
b. RFP 17 – we are investigating the reason why certain documents were produced
without images. I expect to have an answer soon, but I suspect we will make a
supplemental production to replace any affected documents already produced. I will
provide an update as soon as I can.
c. RFP 20 – we will produce responsive, non-privileged records identified after a diligent
search.
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d. RFP 26 – we will produce records responsive to this request (and those records will not
be limited to 2019), although we are still in the process of identifying these records.
e. RFP 30/31 – we will produce responsive business valuations, to the extent any exist;
there may also be responsive communications that we will agree to produce; we are
still in the process of identifying these possible records.
f. RFP 33 – Elizabeth Grady has already begun to produce records related to
service/repair issues; we will continue to do so, assuming additional responsive records
are identified.
g. RFP 34 – Elizabeth Grady has already produced some email communications that
identify customer/patient complaints, issues, or physical injuries; we would request an
opportunity to designate those documents confidential, although many of those
documents do not identify the patient by name; should we identify records with
personal health information that would require a HIPAA order, we are happy to revisit
the issue.
h. RFP 35/36 – Elizabeth Grady is searching for and producing records responsive to these
requests.
i. Rog. 17/19 – we will respond separately to this inquiry, which will require further
investigation/discussion with our client. We will also have a further discussion about
tracking/record keeping by service type, and respond as soon as possible.
Thank you,
Nick
From: Wiesner, Jocelyn
Sent: Monday, June 20, 2022 8:23 AM
To: Allen, Nicholas ; Zucker, William
Cc: Leskin, Lori B. ; Pariser, Daniel
; Novak, Leah ; Michael J.
Pineault
Subject: Elizabeth Grady v. Cynosure – Discovery Follow-Up Questions
**External Message**
Counsel,
We are in the process of reviewing Plaintiff’s discovery responses and productions. Based on our
preliminary review of documents produced to date, we have concerns regarding certain of Plaintiff’s
responses. We understand that Plaintiff’s productions will be completed the week of July 11.
Nonetheless, we wanted to raise these issues with you now so that the parties can resolve any
pending disputes and productively move discovery forward. Specifically:
RFP. No. 15 requests “documents sufficient to show the education, training, and qualification
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of each individual employed by You between January 1, 2018 and the present whose duties or
responsibilities include the provision of marketing expertise, support, or services, such as,
without limitation, resumes or curriculum viteas.” Following several meet and confers about
this and other RFPs, see J. Wiesner May 17, 2021 email (asking about RFP Nos. 3, 15, 20, 21,
and 23), you confirmed that Plaintiff would produce documents responsive to RFP No. 5. See
N. Allen June 30, 2021 email. We believe that this was a typographic error. Please confirm
that Plaintiff intends to produce documents responsive to RFP No. 15.
RFP No. 17 requests “advertisements and marketing material created by You for Your
services, including but not limited to online or social media advertisements or marketing, that
has ever mentioned the SculpSure device, Icon device, or that relates to the Produce Lease
Agreement and/or the Letter Agreement.” Plaintiff has produced marketing materials, for
example e-blasts. However, these have been produced in a non-readable format (an example
is attached, EG00004646). Please reproduce these in a readable format.
RFP No. 20 requests “documents sufficient to show any other expenses related to the
Devices, the Product Lease Agreement, and/or the Letter Agreement.” The parties met and
conferred about the request, and Cynosure explained that this was relevant to, at minimum,
Plaintiff’s contractual and regulatory obligation to hire a medical director. See J. Wiesner
March 25, 2021 email (recapping March 24, 2021 M&C). We also maintain that this request is
relevant to damages. Please confirm you will produce responsive documents rather than
standing on your objections.
RFP No. 26 requests “documents substantiating Your allegation that ‘Elizabeth Grady had a
year-end financial loss for the first time under Walsh’s management’ in Paragraph 49 of the
Complaint.” Plaintiff levied objections but also agreed to produce its financial statement for
2019, which has yet to be produced. In any case, the production of only a 2019 financial
statement is insufficient to contextualize and support a statement that Plaintiff experienced
its first financial loss under Walsh. Please confirm that Plaintiff will produce financial
statements for more than the 2019 year, which we understand Plaintiff intended to do in
response to other RFPs. See, e.g., J. Wiesner March 25, 2021 email (recapping March 24,
2021 Meet & Confer, and confirming that Plaintiff will produce year-end financial statements).
RFP Nos. 30 and 31 request, respectively, documents and communications “related to any
plans or attempts to sell” Elizabeth Grady or “relating to how the Product Lease Agreement,
the Letter Agreement, and/or Your relationship with Cynosure impacted the valuation of Your
business.” The parties agreed that Plaintiffs would produce audited year-end financial
statements and that Cynosure would reserve its right to further pursue documents responsive
to this request. See J. Wiesner March 25, 2021 email (recapping March 24, 2021 Meet &
Confer). Based on our further review of documents, and in light of the theories Plaintiff is
pursuing in this case, we do not believe that year-end financial statements will satisfy these
RFPs and renew our request that Plaintiff produce responsive materials. Plaintiff contends
that entering into business with Cynosure caused it financial and/or reputational harm. As
such, Cynosure is entitled to understand how Plaintiff characterized the value of its business
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Superior Court - Middlesex
Docket Number 2081CV02967
to third parties, their valuations, and whether the Purchase Lease Agreement had an impact.
Accordingly, Cynosure maintains its request for documents responsive to RFP Nos. 30 and 31.
Please advise whether plaintiff will produce responsive material.
RFP No. 33 requests “service or repair records for Your Devices and any related
communications.” During our March 24, 2021 Meet & Confer, Cynosure noted it would be
open to withdrawing this RFP if Plaintiff was willing to stipulate that it was not alleging any
product failure or a failure of Cynosure to perform any contractual service obligation. Plaintiff
was unwilling to so stipulate at that time but said it would consider the issue further. See J.
Wiesner March 25, 2021 email (recapping March 24, 2021 Meet & Confer). We would like to
revisit this issue for clarity – is Plaintiff willing to stipulate that it is not alleging any product
failure or a failure of Cynosure to Perform any contractual service obligation? If not, please
confirm that Plaintiff will produce documents responsive to RFP 33.
RFP No. 34 requests “each and every document reflecting a patient, employee, or other
individual’s complaint, compliment, or other feedback regarding Your treatment of that
person using the SculpSure device or the Icon device.” Following our March 24, 2021 M&C,
Plaintiff stated that it was amenable to producing responsive documents with appropriate
redactions. See J. Wiesner March 25, 2021 email. Cynosure accordingly prepared a proposed
HIPAA order on March 31, 2021, which it sent to Plaintiff. It appears that the order was never
entered, however. Please confirm that Plaintiff is amenable to entry of this order, reattached
here for convenience, so that we may promptly enter it with the Court to facilitate Plaintiff’s
production.
RFP Nos. 35 and 36 request, generally, communications about the SculpSure and Icon
devices, the Product Lease Agreement, and this Action. Following our March 24, 2021 meet
and confer, Plaintiff indicated it was concerned with the scope of these requests and any
corresponding burden, and Cynosure suggested revisiting these RFPs after Plaintiff
determined its approach to ESI. See March 25, 2021 J. Wiesner email. Now that Plaintiff’s ESI
approach has been determined, and it is using a custodial approach which will result in no
additional burden producing these documents, please confirm that Plaintiff is searching for
and will produce responsive documents from the custodial files and using the search terms
identified in my February 17, 2022 Email. See also March 2, 2022 Email from N. Allen (stating
that Plaintiff was “in the process of gathering documents from the custodians listed in your
prior email”).
Rog. Nos. 17 and 19 request that Plaintiff provide certain information on a store-by-store
location. In response, Plaintiff provided a table with stores identified by an internal EG
number. Plaintiff did not, however, provide any other identifying information for the stores,
rendering this information unusable. Please provide such information, including but not
limited to the business address for each store, so that Cynosure can properly analyze relevant
information about each franchise. Further, please confirm if information responsive to Rog 19
is available on a daily, weekly, monthly, or annual basis, and if so, please provide. Presently,
Plaintiff has just provided the information between “2019 – 4/30/22.”
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Docket Number 2081CV02967
Additionally, Plaintiff stated that “it does not track revenue numbers based on the specific
type of appointment or in-store service provided in the manner described in the
Interrogatory, except that Icon/SculpSure services and revenues are tracked as required by
the agreement with Cynosure.” (Answer Rog. No. 19). Please confirm whether Plaintiff
tracks appointments that are available, scheduled and/or canceled by service type. Such
information is relevant to contextualize how the Icon/SculpSure devices were performing
per store in relationship to how other in-store services were performing per store.
We are continuing to review Plaintiff’s productions, and reserve the right to identify additional
deficiencies, particularly as those productions are not yet completed. Please let us know your
position on the above and availability for a meet and confer.
Thank you,
Jocelyn
_______________
Jocelyn A. Wiesner
Senior Associate
Arnold & Porter
601 Massachusetts Ave., NW
Washington | District of Columbia 20001-3743
T: +1 202.942.5810
Jocelyn.Wiesner@arnoldporter.com | www.arnoldporter.com
This communication may contain information that is legally privileged, confidential or
Preview
Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 47.1 J COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT ELIZABETH GRADY FACE FIRST INC. D/B/A THE ELIZABETH GRADY 9/6/2022 COMPANY, Plaintiff, CIVIL ACTION NO. 2081-CV-02967 v. CYNOSURE, INC., and KEVIN THORNAL, Defendants. CYNOSURE, LLC’S UPDATE TO THE COURT ON STATUS OF DISCOVERY, AND SUPPLEMENT TO MOTIONS TO COMPEL Since Cynosure filed its various motions to compel, see Dkts. 38-39.4 (documents), 43-44 (depositions), it has continued to meet-and-confer with Plaintiff rather than seek a ruling from the Court because it believed progress could be made on many of the outstanding issues. Indeed, Plaintiff agreed to produce many of the items Cynosure has requested, but inexplicably has not done so. Given the approaching depositions and end of discovery, Cynosure no longer can wait indefinitely for Plaintiff to fulfil its promises. Further, Plaintiff has not answered whether it will produce certain key information, especially critical financial documents. Cynosure thus has no choice but to seek the Court’s intervention. Accordingly, Cynosure respectfully requests that the Court (1) compel Plaintiff to produce all documents responsive to Cynosure’s First and Second Sets of Requests for Production (“RFP”) that Plaintiff can obtain from its centrally maintained files or any other sources of responsive information, including but not limited to the below specific items enumerated in Cynosure’s RFPs, and including any responsive documents in the possession KO Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 of Plaintiff’s individual franchisees; and (2) enter an order regarding the deposition dates the parties agreed to for John Walsh and Kathy DeNicola. A Proposed Order is attached at Exhibit A. Motions to Compel Document Productions: Cynosure moved to compel because Plaintiff was not producing critical documents. Despite multiple emails and phone calls since then,1 and despite plaintiff’s representation that its production was “substantially complete” as of July 22, critical categories of documents have not yet been produced. These include key items related to Plaintiff’s financial history, damages claims, and efforts to market the devices at issue in the litigation, including documents from Plaintiff’s individual franchisees. These are not tangential issues: Plaintiff alleges that it suffered “its first revenue and working capital losses in 25 years” as a result of the product lease agreement and seeks lost profits. See Second Amended Complaint (“SAC”), Dkt. 46, Introduction; id. ¶ 52 (alleging past and continuing losses, expenses for “changes in [Plaintiff’s] physical space to accommodate Cynosure equipment,” and asserting that Plaintiff “did not have working capital reserves necessary to meet the challenge of Covid upon its business”). Plaintiff further asserts that it bears no responsibility for its losses because it made “commercially reasonable efforts to market and advertise the Cynosure products.” Id. ¶ 46. While Plaintiff has agreed to produce certain financial documents, including “responsive business valuations” and “communications,” “EG’s revenue, profits, losses, etc. over the relevant See Ex. 1 (June 20, 2022 email from J. Wiesner identifying deficiencies and requesting to 1 meet and confer; August 1, 2022 email from J. Wiesner following up on the timing of Plaintiff’s production; August 8, 2022 Email from N. Allen confirming that Plaintiffs would supplement responses “within the next few weeks”); Ex. 2 (August 11, 2022 email from J. Wiesner reiterating deficiencies and offering to meet and confer); Ex. 3 (August 19, 2022 email from J. Wiesner following up on deficiencies and offering to meet and confer; August 29, 2022 email from J. Wiesner expressing that issues remain unresolved and asking to meet and confer). 2 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 time period,” “updated numbers regarding gross/net revenue,” and “documents showing the value of the business and/or attempts to sell the business during the relevant time period,” see Ex. 1 (June 23, 2022 email from N. Allen); Ex. 3 (August 26, 2022 email from N. Allen), those productions remain deficient, and Plaintiff has yet to produce even basic financial data such as its audited year- end financial statements, despite agreeing to do so more than a year ago. See Ex. 4 (March 25, 2021 email from J. Wiesner memorializing March 24, 2021 meet and confer). Nor has Plaintiff agreed to produce any additional financial data, such as monthly revenue, sales, and expenses broken down by service; franchise fees; consolidated monthly company-level revenue and expense data; balance sheets; numbers of procedures performed; capacity data; valuations performed; etc. The absence of these documents is particularly glaring given the testimony of Plaintiff’s Director of Franchise Operations, Carla Ringdahl, who testified that she had financial information in her house including at least cumulative reports reflecting individual franchise performance, and of Plaintiff’s Director of Salon Operations, Andrea McEvoy, who testified that she regularly received similar reports regarding company-owned salons and could access additional, specific data. Likewise, Plaintiff has not produced any documents from its franchisees. Cynosure has asked twice that plaintiff confirm that it is searching those files, but has received no response. See Ex. 2 (August 11, 2022 email from J. Wiesner requesting documents from franchisees responsive to various RFPs); Ex. 3 (August 29, 2022 email from J. Wiesner asking Plaintiff to confirm that it will search for documents from franchisees). And the production received to date, does not appear to include any such documents from the franchisees.2 As plaintiff alleges it “lost substantial 2 Such documents certainly exist, as evidenced by public records showing the testimony of former franchisees that they could not reopen their stores because of financial difficulties resulting 3 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 revenues” due in part to “franchise discontent,” see SAC ¶ 52, it is imperative that Cynosure test whether and to what extent the franchise stores suffered any losses during the relevant time period, and the reasons for such losses. Without the items identified below, Cynosure cannot fully evaluate these allegations and prepare a complete defense. Even so, Plaintiff has neither responded substantively to Cynosure’s communications, produced the requested documents, nor explained why it opposes producing the specified items. See Exs. 1-3. Indeed, when Plaintiff did respond, it did so only to vaguely assert that some unspecified documents have been produced. See, e.g., Ex. 3 (August 26, 2022 email from N. Allen noting, for example, that “a number” of responsive documents have been produced). But Plaintiff has not identified any specific documents it believes are responsive to those requests, indicated what additional documents will be produced, or confirmed by when they will be produced. Although Cynosure requested a meet and confer to clarify these issues, it has received no response. See id. (August 29, 2022 email from J. Wiesner requesting meet and confer). Cynosure has been left wondering when or if it will receive basic documents such as Plaintiff’s financial data and records from Plaintiff’s individual franchisees. Given the upcoming depositions, and in light of Plaintiff’s refusal to engage, it is apparent that no further meet and confer will resolve these issues, and they are ripe for judicial intervention. Cynosure accordingly requests that the Court compel production of the items identified in its Motions to Compel, including at least the below items, which are discussed in more detail in the RFPs and Cynosure’s correspondences with Plaintiff’s counsel, see Exs. 1-3: from Covid-19 and the agreement with Cynosure. See Affidavit of Dimitrios Ioannidis, Birtwell v. Elizabeth Grady, No. 2184-CV-280, Dkt. 15, Ex. 6 at 99:15-100:9 (June 9, 2022). 4 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 1) RFP Nos. 4-8, 37 - Documents surrounding the lead-up to and execution of the Product Lease Agreement (“PLA”); 2) RFP No. 18 - Advertisements and marketing material created on Plaintiff’s behalf, including documents relating to any third-party marketing providers Plaintiff may have used; 3) RFP No. 19 - Documents showing Plaintiff’s marketing expenses related to the SculpSure and Icon devices, including any comprehensive budgets, plans, or overall expenditure reports, such as but not limited to profit and loss statements; 4) RFP No. 20 - Documents showing any other expenses regarding the SculpSure and Icon devices, the Product Lease Agreement, or the Letter Agreement, which Plaintiff agreed to produce in June 2022, such as fees incurred seeking or obtaining the services of a medical director to allow for use of the devices; 5) RFP No. 24 - Documents reflecting the total revenue, including both (1) gross revenue and (2) net revenue as described in Exhibit B to the PLA, obtained by providing services using the SculpSure device and the Icon device, including monthly reports for the individual franchisees and corporate locations, aggregated reports, and underlying data; 6) RFP Nos. 25-26, 39 - Documents supporting Plaintiff’s alleged losses; 7) RFP Nos. 27-29, 39 - Documents showing Plaintiff’s gross and net revenue in the last five years, as well as state and federal tax returns for those years, as well as financial statements, audit reports, compilations, or reviewed statements for the last five years; 8) RFP Nos. 30-31, 39 - Documents reflecting any attempt by Plaintiff to sell its business between January 1, 2018 and December 8, 2020, as well as how, if at all, Plaintiff’s relationship with Cynosure affected the valuation of Plaintiff’s business; 9) RFP No. 43 - Documentation of monthly available and scheduled appointments for the 10 highest revenue-generating procedures in Plaintiff’s stores and franchises, as well as those for SculpSure and Icon procedures, including documents Andrea McEvoy alluded to in her deposition; 10) RFP No. 45 - Documents related to business projections and market analyses Plaintiff performed in the relevant time period, which Plaintiff agreed to produce. These documents pertain, at minimum, to Plaintiff’s allegations that it “would never have entered into the Agreement” if not for certain alleged representations by Cynosure, SAC ¶ 53; incurred damages as a result of entering the PLA, id. ¶¶ 58-59; made “commercially reasonable 5 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 efforts to market and advertise the Cynosure products,” id. ¶ 46; “suffered substantial losses of revenue,” id. ¶ 52; suffered “a year-end financial loss [in 2019] for the first time in over 25 years of Walsh’s ownership and did not have working capital reserves necessary to meet the challenge of Covid upon its business,” id. ¶ 52; “has been substantially damaged, and continues to suffer damages” as a result of having “agreed to lease certain Cynosure equipment for placement in its salons,” id. ¶¶ 58-59; was “concern[ed] about providing dedicated space for the machines that would be non-revenue producing,” id. ¶ 30, and lost “substantial revenues and its working capital . . . from changes in its physical space to accommodate Cynosure equipment and services,” id. ¶ 52. In addition, these documents pertain to Plaintiff’s own financial condition and efforts to comply with the PLA. Motions to Compel Depositions: Cynosure filed a motion to compel the depositions of five fact witnesses and a Rule 30(b)(6) deposition of Plaintiff, first requested on May 10, 2022. After filing that motion, Plaintiff finally agreed to schedule two depositions subject to that motion: Carla Ringdahl and Andrea McEvoy were deposed on August 2, 2022 and August 3, 2022, respectively. Neither the depositions of Ms. DeNicola, Mr. Walsh, nor the 30(b)(6) deposition of Plaintiff have occurred. Although those depositions have now been scheduled, Plaintiff provided dates only after repeated requests by Cynosure. See, e.g., Ex. 3 (August 19, 2022 email from J. Wiesner); Ex. 7 (August 4, 2022 email from J. Wiesner; July 29, 2022 email from J. Wiesner). Given the delay in scheduling those depositions, and the fact that they are happening much later in the discovery period than originally intended, Cynosure believes that it is necessary to enter an order requiring those depositions to occur on the noticed dates. Specifically, Cynosure and Plaintiff have agreed to the following deposition dates: 6 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 1) Deposition of Kathy DeNicola (and Rule 30(b)(6) topics) - September 14, 15, and, if necessary, thereafter until completed or otherwise adjourned or continued; 2) Deposition of John Walsh (and Rule 30(b)(6) topics) - October 18, 19, and, if necessary, thereafter until completed or otherwise adjourned or continued. See Ex. 7 (August 10, 2022 email from J. Wiesner and August 23, 2022 response from N. Allen scheduling deposition of John Walsh); Ex. 5 (combined deposition notices for Kathy DeNicola, John Walsh, and Elizabeth Grady Face First Inc. dba the Elizabeth Grady Company).3 Because of the repeated challenges in obtaining dates, Cynosure cannot afford to wait any longer to take these depositions. As discussed above, however, Plaintiff has not yet produced documents and information essential to each deposition. Cynosure has repeatedly requested that Plaintiff confirm that those documents will be produced no later than two weeks before the pending depositions so that Cynosure can have sufficient time to review and prepare. See Ex. 2 (August 11, 2022 email from J. Wiesner requesting documents “sufficiently in advance of the upcoming depositions”); Ex. 3 (August 19, 2022 email from J. Wiesner requesting documents “a minimum of two weeks in advance of Ms. DeNicola’s deposition”). Plaintiff has not done so. Nor, given the dates, can Plaintiff now produce documents sufficiently in advance of Ms. DeNicola’s deposition. As such, Cynosure respectfully requests that this Court enter an order requiring the above witnesses to be made available for a further depositions related to any documents subject to the aforementioned requests, to the extent such documents have not been produced at least two weeks before each witness’s scheduled deposition.4 Plaintiff’s counsel has represented that Ms. DeNicola and Mr. Walsh will be adequately 3 prepared to answer all 30(b)(6) topics noticed. 4 Cynosure also has requested depositions of Cate Tool, Kristen Salerno, and Stephanie Scarano, see Ex. 3 (August 19, 2022 email from J. Wiesner); Ex. 7 (August 4, 2022 email from J. Wiesner), but Plaintiff has not confirmed dates. 7 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 Dated: September 2, 2022 Respectfully submitted, /s/ Michael J. Pineault Michael J. Pineault (BBO No. 555314) ANDERSON & KREIGER LLP 50 Milk Street, 21st Floor Boston, MA 02109 mpineault@andersonkreiger.com T: +1 617.621.6578 F: +1 617.621.6619 Daniel S. Pariser (pro hac vice) J. A. Wiesner (pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, D.C. 20001 daniel.pariser@arnoldporter.com J..wiesner@arnoldporter.com T: +1 202.942.5000 F: +1 202.942.5999 Lori B. Leskin (pro hac vice) Leah R. Novak (pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55 St., New York, N.Y. 10019 lori.leskin@arnoldporter.com leah.novak@arnoldporter.com T: +1 212.836.8000 F: +1 212.836.8689 Counsel for Defendant Cynosure, LLC 8 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 CERTIFICATE OF SERVICE I certify that, pursuant to the agreement of counsel, I caused this document to be served on counsel of record for the other parties by email this second day of September, 2022. /s/ Michael J. Pineault Michael J. Pineault 9 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 EXHIBIT A Date Filed 9/6/2022 4:35 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. [PROPOSED] ORDER Upon review, and after hearing on Defendant Cynosure’s Motions to Compel Production of Documents (Dkts. 38, 39) and Defendant Cynosure’s Motion to Compel Deposition Appearances of Key Plaintiff Witnesses (Dkt. 43), it is HEREBY ORDERED as follows: 1. Cynosure’s Motions to Compel Production of Documents (Dkts. 38, 39) are ALLOWED. Within 15 days of this Order, Plaintiff Elizabeth Grady Face First Inc. (“Plaintiff” or “Elizabeth Grady”) shall produce all documents responsive to Cynosure’s First and Second Sets of Requests for Production (“RFP”) that Plaintiff can obtain from its centrally maintained files or any other sources of responsive information, including but not limited to the below specific items enumerated in Cynosure’s RFPs, and including any responsive documents in the possession of Plaintiff’s individual franchisees: a. RFP Nos. 4-8, 37 - Documents surrounding the lead-up to and execution of the Product Lease Agreement (“PLA”); Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 b. RFP No. 18 - Advertisements and marketing material created on Plaintiff’s behalf, including documents relating to any third-party marketing providers Plaintiff may have used; c. RFP No. 19 - Documents showing Plaintiff’s marketing expenses related to the SculpSure and Icon devices, including any comprehensive budgets, plans, or overall expenditure reports, such as but not limited to profit and loss statements; d. RFP No. 20 - Documents showing any other expenses regarding the SculpSure and Icon devices, the Product Lease Agreement, or the Letter Agreement, which Plaintiff agreed to produce in June 2022, such as fees incurred seeking or obtaining the services of a medical director to allow for use of the devices; e. RFP No. 24 - Documents reflecting the total revenue, including both (1) gross revenue and (2) net revenue as described in Exhibit B to the PLA, obtained by providing services using the SculpSure device and the Icon device, including monthly reports for the individual franchisees and corporate locations, aggregated reports, and underlying data; f. RFP Nos. 25-26, 39 - Documents supporting Plaintiff’s alleged losses; g. RFP Nos. 27-29, 39 - Documents showing Plaintiff’s gross and net revenue in each of the last five years, as well as state and federal tax returns for those years, as well as financial statements, audit reports, compilations, or reviewed statements for each of the last five years; h. RFP Nos. 30-31, 39 - Documents reflecting any attempt by Plaintiff to sell its business between January 1, 2018 and December 8, 2020, as well as how, if at all, Plaintiff’s relationship with Cynosure affected the valuation of Plaintiff’s business; i. RFP No. 43 - Documentation of monthly available and scheduled appointments for the 10 highest revenue-generating procedures in Plaintiff’s stores and franchises, as well as those for SculpSure and Icon procedures, including documents Andrea McEvoy alluded to in her deposition; j. RFP No. 45 - Documents related to business projections and market analyses Plaintiff performed in the relevant time period, which Plaintiff agreed to produce. 2. Cynosure’s Motion to Compel Deposition Appearances of Key Plaintiff Witnesses (Dkt. 43) is ALLOWED. It is HEREBY ORDERED that: a. The deposition of Kathy DeNicola, both individually and as Plaintiff’s representative regarding all Rule 30(b)(6) topics for which she has been designated, shall take place 2 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 on September 14 and 15, and, if necessary, shall continue from day to day thereafter until completed or otherwise adjourned or continued; b. The deposition of John Walsh, both individually and as Plaintiff’s representative regarding all Rule 30(b)(6) topics for which he has been designated, shall take place on October 18 and 19, and, if necessary, shall continue from day to day thereafter until completed or otherwise adjourned or continued; c. In addition to the foregoing, Plaintiff shall make both Ms. DeNicola and Mr. Walsh available for further deposition with respect to any documents not produced by Plaintiff at least two weeks before each witness’s scheduled deposition dates; and d. Within 7 days of this Order, Plaintiff shall provide to Cynosure specific dates prior to October 31, 2022 on which Cate Tool, Kristen Salerno, and Stephanie Scarano shall make themselves available for deposition. SO ORDERED. __________________________ Justice of the Superior Court Date: _____________ 3 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 Exhibit 1 Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 From: Allen, Nicholas To: Wiesner, Jocelyn; Zucker, William Cc: Leskin, Lori B.; Pariser, Daniel; Novak, Leah; Michael J. Pineault; Sharon, William Subject: RE: Elizabeth Grady v. Cynosure – Discovery Follow-Up Questions Date: Monday, August 8, 2022 9:26:53 AM External E-mail Jocelyn: We are working on supplementing interrogatory answers 17 and 19, and perhaps others. Our goal is to serve those within the next few weeks, and well in advance of the rescheduled 30(b)(6) depositions and Walsh/DeNicola depositions. We also have supplemental documents that we will produce in the same time frame. Some of those documents will be responsive to the requests identified in the below emails. Thanks, Nick From: Wiesner, Jocelyn Sent: Monday, August 1, 2022 1:34 PM To: Allen, Nicholas ; Zucker, William Cc: Leskin, Lori B. ; Pariser, Daniel ; Novak, Leah ; Michael J. Pineault ; Sharon, William Subject: RE: Elizabeth Grady v. Cynosure – Discovery Follow-Up Questions **External Message** Nick: I am writing to check on the status of Plaintiff’s production in response to each of the RFPs identified below, as well as the timing of Plaintiff’s supplemental response to Interrogatory Nos. 17/19. Thank you, Jocelyn From: Allen, Nicholas Sent: Thursday, June 23, 2022 1:12 PM To: Wiesner, Jocelyn ; Zucker, William Cc: Leskin, Lori B. ; Pariser, Daniel ; Novak, Leah ; Michael J. Pineault Subject: RE: Elizabeth Grady v. Cynosure – Discovery Follow-Up Questions Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 External E-mail Jocelyn: Please consider this as a response to your emails from last Friday and Monday. We address below the various points raised in those emails. 1. Document Productions/Custodians: We see no reason at this point for Cynosure to be unwilling to commit to substantially completing document productions by the second week of July. The custodians with relevant records should have long been known to Cynosure. We have been consistent with our position regarding custodians – all Cynosure employees who attended the December 3, 2018 meeting should have been included as custodians (they were not), and it was Cynosure’s burden to identify other management level custodians (as Elizabeth Grady is not privy to that information, which is why we requested an organizational chart, which request has been repeatedly ignored). We have never had a formal agreement regarding custodians. The document productions recently made by Cynosure to date finally shed light on other custodians. It is our position that all custodians identified in our email from June 15 should have their records searched for responsive materials, and that until records from those custodians are searched/produced, Cynosure’s document productions are incomplete. We reserve our right to seek records from additional custodians as well, as Cynosure has not been forthcoming on the identities of its custodians. 2. Depositions: We remain committed to making our witnesses available for deposition as soon as possible. We will speak with those witnesses shortly concerning their availability for the dates listed in your updated notices, and will propose alternative dates if necessary. However, we still insist that both parties substantially complete document productions before depositions begin. Obviously the Court will decide on some of the issues that have held up discovery to date, but otherwise there should be no further delays in completing productions. As noted above, we reject any attempt to blame Elizabeth Grady for fabricated delays merely because we have recently identified custodians that Cynosure should have disclosed long-ago. It was and remains Cynosure’s burden to identify and produce all relevant records. 3. Specific Discovery Requests: a. RFP 15 – we still question the relevancy of this request, but in the spirit of compromise we will check applicable personnel records for any job applications or resumes that might be responsive. b. RFP 17 – we are investigating the reason why certain documents were produced without images. I expect to have an answer soon, but I suspect we will make a supplemental production to replace any affected documents already produced. I will provide an update as soon as I can. c. RFP 20 – we will produce responsive, non-privileged records identified after a diligent search. Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 d. RFP 26 – we will produce records responsive to this request (and those records will not be limited to 2019), although we are still in the process of identifying these records. e. RFP 30/31 – we will produce responsive business valuations, to the extent any exist; there may also be responsive communications that we will agree to produce; we are still in the process of identifying these possible records. f. RFP 33 – Elizabeth Grady has already begun to produce records related to service/repair issues; we will continue to do so, assuming additional responsive records are identified. g. RFP 34 – Elizabeth Grady has already produced some email communications that identify customer/patient complaints, issues, or physical injuries; we would request an opportunity to designate those documents confidential, although many of those documents do not identify the patient by name; should we identify records with personal health information that would require a HIPAA order, we are happy to revisit the issue. h. RFP 35/36 – Elizabeth Grady is searching for and producing records responsive to these requests. i. Rog. 17/19 – we will respond separately to this inquiry, which will require further investigation/discussion with our client. We will also have a further discussion about tracking/record keeping by service type, and respond as soon as possible. Thank you, Nick From: Wiesner, Jocelyn Sent: Monday, June 20, 2022 8:23 AM To: Allen, Nicholas ; Zucker, William Cc: Leskin, Lori B. ; Pariser, Daniel ; Novak, Leah ; Michael J. Pineault Subject: Elizabeth Grady v. Cynosure – Discovery Follow-Up Questions **External Message** Counsel, We are in the process of reviewing Plaintiff’s discovery responses and productions. Based on our preliminary review of documents produced to date, we have concerns regarding certain of Plaintiff’s responses. We understand that Plaintiff’s productions will be completed the week of July 11. Nonetheless, we wanted to raise these issues with you now so that the parties can resolve any pending disputes and productively move discovery forward. Specifically: RFP. No. 15 requests “documents sufficient to show the education, training, and qualification Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 of each individual employed by You between January 1, 2018 and the present whose duties or responsibilities include the provision of marketing expertise, support, or services, such as, without limitation, resumes or curriculum viteas.” Following several meet and confers about this and other RFPs, see J. Wiesner May 17, 2021 email (asking about RFP Nos. 3, 15, 20, 21, and 23), you confirmed that Plaintiff would produce documents responsive to RFP No. 5. See N. Allen June 30, 2021 email. We believe that this was a typographic error. Please confirm that Plaintiff intends to produce documents responsive to RFP No. 15. RFP No. 17 requests “advertisements and marketing material created by You for Your services, including but not limited to online or social media advertisements or marketing, that has ever mentioned the SculpSure device, Icon device, or that relates to the Produce Lease Agreement and/or the Letter Agreement.” Plaintiff has produced marketing materials, for example e-blasts. However, these have been produced in a non-readable format (an example is attached, EG00004646). Please reproduce these in a readable format. RFP No. 20 requests “documents sufficient to show any other expenses related to the Devices, the Product Lease Agreement, and/or the Letter Agreement.” The parties met and conferred about the request, and Cynosure explained that this was relevant to, at minimum, Plaintiff’s contractual and regulatory obligation to hire a medical director. See J. Wiesner March 25, 2021 email (recapping March 24, 2021 M&C). We also maintain that this request is relevant to damages. Please confirm you will produce responsive documents rather than standing on your objections. RFP No. 26 requests “documents substantiating Your allegation that ‘Elizabeth Grady had a year-end financial loss for the first time under Walsh’s management’ in Paragraph 49 of the Complaint.” Plaintiff levied objections but also agreed to produce its financial statement for 2019, which has yet to be produced. In any case, the production of only a 2019 financial statement is insufficient to contextualize and support a statement that Plaintiff experienced its first financial loss under Walsh. Please confirm that Plaintiff will produce financial statements for more than the 2019 year, which we understand Plaintiff intended to do in response to other RFPs. See, e.g., J. Wiesner March 25, 2021 email (recapping March 24, 2021 Meet & Confer, and confirming that Plaintiff will produce year-end financial statements). RFP Nos. 30 and 31 request, respectively, documents and communications “related to any plans or attempts to sell” Elizabeth Grady or “relating to how the Product Lease Agreement, the Letter Agreement, and/or Your relationship with Cynosure impacted the valuation of Your business.” The parties agreed that Plaintiffs would produce audited year-end financial statements and that Cynosure would reserve its right to further pursue documents responsive to this request. See J. Wiesner March 25, 2021 email (recapping March 24, 2021 Meet & Confer). Based on our further review of documents, and in light of the theories Plaintiff is pursuing in this case, we do not believe that year-end financial statements will satisfy these RFPs and renew our request that Plaintiff produce responsive materials. Plaintiff contends that entering into business with Cynosure caused it financial and/or reputational harm. As such, Cynosure is entitled to understand how Plaintiff characterized the value of its business Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 to third parties, their valuations, and whether the Purchase Lease Agreement had an impact. Accordingly, Cynosure maintains its request for documents responsive to RFP Nos. 30 and 31. Please advise whether plaintiff will produce responsive material. RFP No. 33 requests “service or repair records for Your Devices and any related communications.” During our March 24, 2021 Meet & Confer, Cynosure noted it would be open to withdrawing this RFP if Plaintiff was willing to stipulate that it was not alleging any product failure or a failure of Cynosure to perform any contractual service obligation. Plaintiff was unwilling to so stipulate at that time but said it would consider the issue further. See J. Wiesner March 25, 2021 email (recapping March 24, 2021 Meet & Confer). We would like to revisit this issue for clarity – is Plaintiff willing to stipulate that it is not alleging any product failure or a failure of Cynosure to Perform any contractual service obligation? If not, please confirm that Plaintiff will produce documents responsive to RFP 33. RFP No. 34 requests “each and every document reflecting a patient, employee, or other individual’s complaint, compliment, or other feedback regarding Your treatment of that person using the SculpSure device or the Icon device.” Following our March 24, 2021 M&C, Plaintiff stated that it was amenable to producing responsive documents with appropriate redactions. See J. Wiesner March 25, 2021 email. Cynosure accordingly prepared a proposed HIPAA order on March 31, 2021, which it sent to Plaintiff. It appears that the order was never entered, however. Please confirm that Plaintiff is amenable to entry of this order, reattached here for convenience, so that we may promptly enter it with the Court to facilitate Plaintiff’s production. RFP Nos. 35 and 36 request, generally, communications about the SculpSure and Icon devices, the Product Lease Agreement, and this Action. Following our March 24, 2021 meet and confer, Plaintiff indicated it was concerned with the scope of these requests and any corresponding burden, and Cynosure suggested revisiting these RFPs after Plaintiff determined its approach to ESI. See March 25, 2021 J. Wiesner email. Now that Plaintiff’s ESI approach has been determined, and it is using a custodial approach which will result in no additional burden producing these documents, please confirm that Plaintiff is searching for and will produce responsive documents from the custodial files and using the search terms identified in my February 17, 2022 Email. See also March 2, 2022 Email from N. Allen (stating that Plaintiff was “in the process of gathering documents from the custodians listed in your prior email”). Rog. Nos. 17 and 19 request that Plaintiff provide certain information on a store-by-store location. In response, Plaintiff provided a table with stores identified by an internal EG number. Plaintiff did not, however, provide any other identifying information for the stores, rendering this information unusable. Please provide such information, including but not limited to the business address for each store, so that Cynosure can properly analyze relevant information about each franchise. Further, please confirm if information responsive to Rog 19 is available on a daily, weekly, monthly, or annual basis, and if so, please provide. Presently, Plaintiff has just provided the information between “2019 – 4/30/22.” Date Filed 9/6/2022 4:35 PM Superior Court - Middlesex Docket Number 2081CV02967 Additionally, Plaintiff stated that “it does not track revenue numbers based on the specific type of appointment or in-store service provided in the manner described in the Interrogatory, except that Icon/SculpSure services and revenues are tracked as required by the agreement with Cynosure.” (Answer Rog. No. 19). Please confirm whether Plaintiff tracks appointments that are available, scheduled and/or canceled by service type. Such information is relevant to contextualize how the Icon/SculpSure devices were performing per store in relationship to how other in-store services were performing per store. We are continuing to review Plaintiff’s productions, and reserve the right to identify additional deficiencies, particularly as those productions are not yet completed. Please let us know your position on the above and availability for a meet and confer. Thank you, Jocelyn _______________ Jocelyn A. Wiesner Senior Associate Arnold & Porter 601 Massachusetts Ave., NW Washington | District of Columbia 20001-3743 T: +1 202.942.5810 Jocelyn.Wiesner@arnoldporter.com | www.arnoldporter.com This communication may contain information that is legally privileged, confidential or