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EFiled:Oct10201205:43PMEDT TransactionID46906206 CaseNo.


LAUREN GLASSMAN, Plaintiff/ Counterclaim Defendant, v. CROSSFIT, INC., a Delaware corporation, and GREG GLASSMAN, Defendants/ Counterclaim Plaintiffs.

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C.A. No. 7717-VCG

PLAINTIFFS AMENDED MOTION TO COMPEL DEFENDANTS TO PRODUCE DOCUMENTS AND ANSWER INTERROGATORIES Plaintiff Lauren Glassman (Plaintiff) hereby moves for the entry of an order compelling Defendants CrossFit, Inc. and Greg Glassman (Defendants) to immediately produce documents responsive to Plaintiffs First and Second Requests for Production of Documents (the Document Requests) and provide answers to Plaintiffs Second Set of Interrogatories. 1 The grounds for this motion are as follows: Introduction 1. Plaintiff commenced this action on July 24, 2012, seeking to preclude Defendants

from entering into an agreement for the purchase of a corporate aircraft that was neither brought to nor considered by the Companys Board of Directors. Defendants brought a Counterclaim against Plaintiff arising from her provision of CrossFit information to a third party in connection with its purchase of Plaintiffs 50% interest in the Company.

Copies of Plaintiffs First and Second Document Requests are attached hereto as Exhibits A and B. A copy of Plaintiffs Second Set of Interrogatories is attached hereto as Exhibit C.

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Trial on both the Complaint and Counterclaim is scheduled to commence on

November 26, 2012, before which fact depositions, expert reports, expert depositions and pretrial briefing must be completed. 3. On October 5, 2012, Plaintiff filed a motion to compel Defendants to produce

documents because, notwithstanding the time-sensitive nature of this case and the fact that requests for production were exchanged in early August, Defendants had, among other things, yet to complete their document production to Plaintiff or commit to a firm deadline by which their production would be complete. 2 4. On October 8, 2012, Defendants served Plaintiff with what they represented to be

their final document production. This production, however, is untimely and, as more fully set forth below, does not satisfy their discovery obligations under the rules of this Court. Indeed, despite no less than five written meet and confer attempts by Plaintiff, 3 Defendants have refused to produce core documents relating to the issues raised in their Counterclaim or provide the

Notably, however, Defendants did find time to (1) file a motion to compel against Plaintiff and two additional motions against third parties, (2) insist that Plaintiff complete her production so that briefing on the pending motion could be completed and, most recently, (3) request that the Court hold a separate hearing on the motion against Plaintiff so that Plaintiff, whose production has been complete since August 28, 2012, could no longer delay withholding the documents in question.

Plaintiffs meet and confer efforts focused, as an initial matter, on getting Defendants to serve written responses to her Document Requests. Indeed, although the Court entered an Order requiring the parties to serve written responses to discovery on August 17, 2012 (the Scheduling Order), Defendants informed Plaintiff on August 16th that they would not be responding to Plaintiffs Document Requests and would not be producing documents in response to such requests. Instead, they insisted that the Document Requests were burdensome and unreasonable and that, therefore, they were not required to respond to the Document Requests in the manner provided for in the Courts Scheduling Order. (See August 16, 2012 letter, Ex. D hereto). It was only after two meet and confer letters and additional, oral conversations that Defendants decided to serve written responses to the requests, which came 11 days after the court-ordered deadline. Copies of Defendants Responses and Objections to First Set of Requests for Production are attached hereto as Exhibit E.
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metadata associated with a critical document relied on by Defendants in opposing Plaintiffs application for a temporary restraining order. 5. Plaintiff, therefore, brings this Amended Motion to Compel Defendants to

Produce Documents and Answer Interrogatories and respectfully requests that an order be entered requiring Defendants to provide Plaintiff with this basic discovery. Argument 6. The law applicable to this motion is well known. The rules of the Court of

Chancery provide for broad and liberal discovery. Parties are obligated to provide discovery into any subject, not privileged, that is likely to lead to the discovery of admissible evidence. See Grace Bros., Ltd. v. Siena Holdings, Inc., 2009 WL 1547821, at *1 (Del. Ch. June 2, 2009) (granting a motion to compel and ordering that the documents be produced expeditiously) (citing Court of Chancery Rule 26(b)(1)). Moreover, parties must submit their responses to the requested discovery in the time and manner prescribed by Court of Chancery Rule 34 or by order of the Court. 7. In furtherance of these objectives, the Court has broad discretion to make any

appropriate order concerning the scope and timing of discovery. Ch. Ct. R. 26(d); Omnicare, Inc. v. Mariner Health Care Mgmt. Co., 2009 WL 1515609, at *7 (Del. Ch. May 29, 2009) (referring to the Courts inherent equitable powers and the wide discretion to manage discovery under Court of Chancery Rule 26). This includes the discretion to order a promptor immediateproduction of documents where, as here, the defendants intentionally violated an order of the Court and seek to delay the completion of the discovery process. 8. To avoid the production of documents requested in discovery, the burden is on the

resisting party to showin a timely mannerhow a particular discovery request is improper.

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General objections, such as those that a request is burdensome or unreasonable, are insufficient. Van De Walle v. Unimation, Inc., 1984 WL 8270 (Del. Ch. Oct. 15, 1984) (granting requesting partys motion to compel because responding party did not meet burden of showing that discovery requests were improper). Instead, the party resisting discovery must show specifically how each request is burdensome or unreasonable. Id. I. Defendants Have Waived Their Right to Object to Plaintiffs Document Requests. 9. As a threshold matter, Defendants tactical decision not to respond to Plaintiffs

Document Requests within the time set by the Courts Scheduling Order results in their waiver of the right to object to such requests. Indeed, this Court has held that the failure of a party to object to a document request in a timely manner results in the waiver of any objections. Gower v. Beldock, 1998 WL 200267, at **2-3 (Del. Ch. Apr. 21, 1998) (ruling that any objections to request for production were waived when responses were not timely served); Fingold v. Computer Entry Sys. Corp., 1990 WL 11633 at *1 (Del. Ch. Jan. 26, 1990) (finding that objection to document request based on attorney-client privilege was waived because it was not asserted in a timely manner); see also Standard Chlorine of Del., Inc. v. Sinibaldi, 821 F. Supp. 232, 261-62 (D. Del. 1992) (citing substantial federal precedent and holding that defendants failure to serve timely responses and objections to requests for production constitutes waiver of any and all objections to said request) (citations omitted). By intentionally failing to serve objections within the deadline provided in the Scheduling Order, Defendants shouldconsistent with Court precedentbe deemed to have waived any objections to Plaintiffs requests, including those based on burdensomeness or the attorney-client privilege. 10. Moreover, the positions taken by Defendants in refusing to produce the requested

documents and answer interrogatories, each of which are directly relevant to this proceeding and

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fall squarely within the scope of Rule 26, are insufficient to meet their burden in resisting discovery. II. Defendants Must Produce Documents Responsive to Plaintiffs Second Request for Production. 11. In their Counterclaim, Defendants allege that Plaintiff entered into a

nondisclosure agreement with Anthos Capital, a third party interested in purchasing her 50% interest in CrossFit, and, in connection therewith, provided confidential information to Anthos without any prior notice to, or permission from, the Company or the Board of Directors. (Counterclaim at 71). They further allege that CrossFit was neither a party to the [nondisclosure agreement] nor was it identified as a third-party beneficiary. (Id.). These activities, Defendants allege, were concealed from CrossFits Board of Directors and, as a result, Defendants claim that Plaintiff has breached her fiduciary duties to the Company. (Id. at 73). 12. In the divorce proceeding currently pending between Plaintiff and Defendant

Glassman in Arizona, Mr. Glassman has submitted preliminary indications of interest from two third-party investors, THL Credit Advisors LLC and Level Equity Management, LLC, which Mr. Glassman identified as entities willing to finance his offer to purchase Plaintiffs 50% interest in CrossFit. In each of their proposals, the investors made reference to certain Company information they were provided by Mr. Glassman in connection with their consideration of whether to finance his purchase of Plaintiffs stock. (See Ex. F (We appreciate the opportunity to have reviewed financial and operational information relating to the historical and projected performance of Crossfit and to have discussed the business, its history and prospects with several members of your senior team.); Ex. G (Based on the materials you have shared with us, we are pleased to provide you with the attached preliminary proposal) (emphasis added)).

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The similarities between Defendants actions and the actions of Plaintiff, as

alleged in Defendants Counterclaim, are hard to ignore. Like Plaintiff, Mr. Glassman provided Company information to a third party for the purpose of purchasing Plaintiffs 50% interest in CrossFit. Also like Plaintiff, Mr. Glassman did not bring the provision of Company information to the full Board. Thus, the information Mr. Glassman provided to these entities and the measures he took to protect CrossFits confidences from being disseminated are directly relevant to the Counterclaim asserted against Plaintiff. 14. For this reason, upon learning of Mr. Glassmans provision of information to

these entities, Plaintiff promptly served a second request for production on Defendants, seeking documents provided to any Person that was contacted for the purpose of providing financing in connection with the acquisition of Plaintiffs interest in CrossFit, including but not limited to THL Credit Advisors LLC and Level Equity Management, LLC. (Ex. B). Plaintiff further sought documents relating to any nondisclosure or confidentiality arrangement agreed to by Mr. Glassman and any person to which such information was provided. (Id.). For the avoidance of doubt, Plaintiff made clear in her request that she was not seeking discovery into the terms of any proposed financing, but simply the production of documents provided to these parties in connection with their consideration of whether to provide such financing. (Id.). 15. Along with her Document Requests, Plaintiff served a Second Set of

Interrogatories directed to Defendants, in which she asked Defendants to [i]dentify all Persons to whom documents were provided for the purpose of such Persons consideration whether to provide financing in connection with the acquisition of Plaintiffs interest in CrossFit. (Ex. C). 16. Defendants served objections to Plaintiffs second set of discovery on October 8,

2012, in which they claim that the requests (1) are vague, ambiguous, overly broad, and unduly

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burdensome, (2) call[]for the production of information that is not in the possession, custody, or control of Defendants, or is equally available to Plaintiff, and (3) are wholly irrelevant to the claims alleged in Plaintiffs Verified Complaint and Defendants Counterclaims, and not reasonably calculated to lead to the discovery of admissible evidence. (See Exs. H and I hereto). Based on these objections, Defendants have refused to produce any documents in response to Plaintiffs Document Requests or answer Plaintiffs interrogatories. 17. As an initial matter, Defendants objections based on vagueness, ambiguity, over

breadth, and burdensomeness are unaccompanied by any substantive reason for their assertion. Defendants general objection on these issues, without more, are insufficient. Van De Walle, 1984 WL 8270. But given the specificity with which Plaintiff requested the relevant information, any plausible objection on these grounds cannot be made. Plaintiff even included with her requests a copy of the letters from THL Credit Advisors and Level Equity, in which the information she is seeking was referenced. It is, thus, difficult to envision a more direct request than that made by Plaintiff. 18. Defendants objection to the extent Plaintiffs request calls for documents not in

the possession, custody, or control of Defendants is equally unavailing. In the event Defendants do not possess the requested information, they could have indicated as much to Plaintiff in their response to her request. But asserting an objection on these grounds, and then refusing to produce documents based on this objection, leaves Plaintiff in the dark as to whether Defendants do possess responsive documents and creates potentially needless motion practice. 19. Lastly, to assert an objection, as Defendants do, based on grounds of relevancy is

to ignore entirely the fundamental premise on which Defendants Counterclaim is based. Given the striking similarity between Mr. Glassmans actions and the alleged actions of Plaintiff, which

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are the subject of Defendants Counterclaim, and the indisputable relevance of this information to Plaintiffs defense to these claims, Plaintiff requests that Defendants be compelled to produce documents responsive to this request. III. Plaintiff is Entitled to the Metadata Associated with the July 24, 2012 Letter Instructing Cirrus Aircraft to Proceed with the Transaction. 20. This action was initiated on July 24, 2012 by Plaintiffs filing of an application

for a temporary restraining order by which she sought to restrain Defendants from entering into a transaction to purchase a corporate aircraft. The Court held a hearing on Plaintiffs application the following day, during which Defendants informed the Court that the transaction had already been consummated on the day Plaintiffs application was filed and that, therefore, the application was moot. As proof of the transactions consummation, Defendants submitted as an exhibit a letter dated July 24, 2012 from CrossFit to Cirrus Aircraft (Ex. J hereto) and represented to the Court that this letter had been executed and sent to Cirrus [b]efore receiving the complaint and associated motion papers. (Defendants Opposition to Plaintiffs Motion for Temporary Restraining Order at 1). 21. Plaintiffs Document Requests, therefore, sought documents concerning what

time on July 24, 2012 CrossFit, Mr. Glassman, and the other signatory to the letter signed and sent the letter to proceed with the purchase of the aircraft. (Ex. A). Defendants have since represented to Plaintiff that all documents responsive to this request have been produced. (See Ex. K at p. 3). 22. The documents produced to date, however, indicate that the July 24, 2012 letter to

Cirrus Aircraft was not sent until two days after the filing of Plaintiffs application and one day

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after the hearing before this Court. (See Ex. L). 4 23. For these reasons, Plaintiff seeks the native file and metadata for any version of

the July 24, 2012 letter. In both her Document Requests and meet and confer attempt, Plaintiff requested that Defendants provide the metadata associated with the letter. Defendants refused, claiming that CrossFit would need to use an outside vendor to collect the metadata and that it was not willing to incur that expense. (See Ex. K at pp. 4-5). 24. As an initial matter, it should be clear that Plaintiff is not asking Defendants to

undergo a significant change to their document collection process. Based on the manner in which Defendants counsel has described this process in its meet and confer response, it would seem that the metadata associated with these files was already captured in counsels collection efforts. (See Ex. K at p. 5). Providing this data to Plaintiff would, therefore, require little additional work and cost for Defendants counsel. 25. To the extent the metadata was somehow not captured by counsel in its collection

efforts, the reality is that Plaintiff has requested this information for a single document. The cost for a vendor to provide this information, which is collected as part of the standard discovery practice in their field, for one document is negligible. 26. Thus, given the import of this information and the glaring inconsistencies in

Defendants representations to the Court and their production to date, Plaintiff requests that Defendants be compelled to provide the metadata for all versions of the July 24, 2012 letter. 5

Exhibit L hereto is an email from CrossFits Chief Financial Officer to Cirrus Aircraft, which was sent on July 26, 2012 and to which he attaches a July 24th letter, stating I have attached that authorization from Greg and I to proceed with the build out of the aircraft.

This metadata should include, where applicable, the following fields: Custodian, Accessed, Application, Author, BCC, CC, DateTimeMaster, DateTimeCreate, DateTimeLastMod, DateTimeRcvd, DateTimeSent, DocExt, FileName, FolderPath, From, MD5 Hash, Printed, RecordType, Subject, Title, and To.
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WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests that the Court enter an order (i) finding that Defendants have waived any objection to Plaintiffs Document Requests; (ii) compelling Defendants to immediately supplement their document production, including the documents identified in this motion; (iii) compelling Defendants to provide metadata associated with all versions of the July 24, 2012 letter sent by CrossFit to Cirrus Aircraft; (iv) compelling Defendants to provide answers to Plaintiffs Second Set of Interrogatories; and (v) granting such other and further relief as the Court deems necessary or appropriate.

ASHBY & GEDDES, P.A. Of Counsel: BERGESON, LLP Daniel Bergeson Grace Y. Park 303 Almaden Blvd. Suite 500 San Jose, CA 95110 /s/ Philip Trainer, Jr. (#2788) Philip Trainer, Jr. (#2788) Toni-Ann Platia (#5051) 500 Delaware Avenue, 8th Floor P.O. Box 1150 Wilmington, Delaware 19899 (302) 654-1888 Attorneys for Plaintiff/Counterclaim Defendant Lauren Glassman

Dated: October 10, 2012

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