IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE LAUREN GLASSMAN, Plaintiff/ Counterclaim Defendant, v. CROSSFIT, INC.

, a Delaware corporation, and GREG GLASSMAN, Defendants/ Counterclaim Plaintiffs ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 7717-VCG

PUBLIC VERSION -FILED OCTOBER 31, 2012

DEFENDANTS OPPOSITION TO PLAINTIFFS AMENDED MOTION TO COMPEL 1. Plaintiffs Amended Motion seeks to compel two categories of material: (1)

documents she wants for use in the Arizona divorce proceedings, and (2) electronic information that she did not even ask for in her Document Requests. Both requests are improper. Plaintiff has no legal basis or actual need for the materials requested in her Amended Motion in this case, and her arguments for production are unsupported. This Court should therefore deny her motion. 2. Plaintiff first moved to compel prior to Defendants final production, seeking

primarily to compel Defendants to produce documents on October 8 the date on which Defendants had already said they would complete their production. Defendants met that selfimposed deadline. Plaintiff then amended her motion, not to assert arguments based on

documents already produced, but to move to compel production of additional documents related to the Divorce Action. Those documents have no bearing on the issues in this case, and her efforts to use this action as an alternative vehicle for discovery should be rejected. 3. The rest of Plaintiffs motion is purportedly a request for metadata, but is really

just an effort to sling mud at Defendants by pointing out an inadvertent error made in the haste of

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responding to Plaintiffs TRO application. While Defendants certainly regret that error, it has no consequence to any issue now before the Court and it caused Plaintiff no prejudice whatsoever. As to the metadata, Plaintiffs motion fails for the simple reason that she never asked for it in her requests. She did not even informally request it until after Defendants were on the verge of completing their significant production, and it would be unduly burdensome to go back and collect and produce it now. However, Defendants have nothing to hide and do not object to providing the metadata at issue, provided Plaintiff bears the cost. I. PROCEDURAL HISTORY 4. Plaintiff first propounded document requests on August 10, 2012, listing 115

separate requests for production (the First Requests), despite the fact that the parties were then in expedited discovery with an anticipated hearing date in late September. See Ex. 1 (First Requests). Defendants note that, in the instructions and definitions to the First Requests,

Plaintiff did not request metadata at most, she requested production in native file format. See id. 5. Defendants, facing an expedited discovery schedule and 115 largely-repetitive

requests, responded and objected less than one week later on Thursday, August 16 submitting a letter response objecting to the breadth of Plaintiffs First Requests on their face, aggregating Plaintiffs 115 topics into 15 general topics on which they would produce materials, and reserving all objections to the First Requests. See Ex. 2 (Aug. 16, 2012 Letter). Defendants made their first production responsive to the First Requests the next day. See Ex. 3 (Aug. 17, 2012 Letter). 6. On August 21, Plaintiff objected to the form of this letter response (although she

did not object to any particular topic on which Defendants agreed to produce documents) and 2
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requested individual responses and objections to each of the 115 requests. See Ex. 4 (Aug. 21, 2012 Letter). Defendants responded the next day, stating that they believed that the scope of Plaintiffs requests were unduly burdensome and patently unreasonable but that they would nonetheless agree to provide individual responses and objections as requested. See Ex. 5 (Aug. 22, 2012 Letter). Defendants subsequently provided a 101-page supplemental response,

incorporating formal objections to each and every one of Plaintiffs 115 requests. See Ex. 6 (Responses and Objections). In those responses and objections, Defendants specifically objected to Plaintiffs request for native file documents, stating that they would produce documents as image or pdf files with associated database load files. 7. Defendants objection to Plaintiffs request for native file documents was more

than mere boilerplate. Defendant CrossFit, unlike larger corporations, does not have an internal email server or file server. Rather, its email system (the source of most relevant documents) is hosted by a commercial internet service provider (Google), which does not provide administrative access to native email files. Rather, Defendants have had to collect emails from individual custodians, one at a time. Plaintiff never responded to Defendants objection

regarding the request for native file documents, and Defendants continued to collect and produce documents on the basis of their responses and objections, and their prior letter. 8. While discovery was proceeding, the Court held an omnibus hearing on

September 5, 2012, at which it became clear that expedited proceedings were no longer required insofar as Defendant Greg Glassman undertook to guarantee the purchase price of the aircraft at issue in Plaintiffs complaint. On that basis, the parties revisited their prior discovery schedule to allow more time.

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9.

At the same time, as part of the Arizona Divorce Action, Greg Glassman

confirmed that he intended to match the financial and legal terms of Anthos Capital LLCs (Anthos) offer to acquire Plaintiffs interest in CrossFit. See Ex. 7 (Sept. 6, 2012 Letter from H. Brown). Mr. Glassmans acquisition of Ms. Glassmans interest would have the potential to resolve most, if not all, of the ongoing litigation between Plaintiff and Defendants, both in Arizona and Delaware, without depriving Ms. Glassman of the benefit of her proposed sale to Anthos. On September 19, Mr. Glassman submitted a formal notice of tender to the Arizona court and sought a ruling from the Court allowing him to match Anthos offer. See Ex. 8 (Notice of Tender). In an October 3 hearing before the Arizona court, Ms. Glassmans counsel agreed that the monetary and legal terms of Mr. Glassmans offer were equal to those of Anthos, and that Ms. Glassmans only concern was whether Mr. Glassman had the ability to raise the needed funds. See Ex. 9 (Glassman v. Glassman Oct. 3 Tr.) at 45:20-46:1; 46:25-47:4. The Court in Arizona further indicated that Mr. Glassman should complete the borrowing process expeditiously. 10. Plaintiff, however, apparently opposes Mr. Glassmans efforts to match Anthos

offer. Accordingly, she is pursuing this discovery in an attempt to undermine Mr. Glassmans matching offer, either by arguing that he cannot obtain the necessary funds or by harassing the lenders into abandoning the process. 11. Ms. Glassman has attempted on several occasions to acquire from Mr.

Glassmans Arizona counsel information provided by Defendants to the potential lenders. See Ex. 10 (Sept. 25, 2012 Letter). Mr. Glassmans divorce counsel responded to the request in the Arizona proceeding and questioned why Plaintiff would need access to such materials, stating, [I]f your client is going to accept the proposal, then its a simple matter to acknowledge the 4
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acceptance and provide a reasonable period of time to complete the transaction. If for any reason Mr. Glassman and/or Cross Fit is not able to fund the transaction . . . then your client has lost nothing since apparently she still has her argument to try and convince the Court to accept the Anthos offer. See Ex. 11 (September 25, 2012 letter from R. Schwartz to C. Hamilton). 12. Tellingly, Ms. Glassman has not sought formal discovery on the matter in Arizona

perhaps because of the high likelihood that the Arizona court would find the discovery sought irrelevant for the reasons that Mr. Glassmans counsel explained. Ms. Glassman is also in no position to ask for such discovery in the Arizona action, because she has taken the position in that case that the Court may rule upon her motion without an evidentiary hearing. 13. Instead, Plaintiff is attempting to leverage the present proceedings to acquire

discovery for use in her divorce proceedings, and to harass the lenders. 1 On September 20, Plaintiff served a Second Request for Production of Documents, seeking documents related to the lending process for the financing tied to Mr. Glassmans notice of tender in the Divorce Action (the Second Requests). See Ex. 13 (Second Requests). Plaintiff followed that

discovery demand with her first motion to compel production, filed on October 3, 2012, even though Defendants had committed in writing to provide the final tranche of documents on October 8. Defendants completed their production as promised on October 8; they also served objections and responses to Plaintiffs Second Requests on that date. See Ex. 14. 14. On October 10, 2012, Plaintiff filed the present Amended Motion to Compel (the

Amended Motion), withdrawing her request that Defendants produce documents relevant to

Plaintiffs intention to use these Delaware proceedings as a means to acquire information for use in Arizona is documented. According to an email between Ms. Glassmans attorneys and Anthos on August 10, they considered whether, information of wrongdoing discovered from the Delaware action [might] be useful in the Arizona divorce proceeding. See Ex. 12 (Aug. 10 email) 5

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the First Requests, but now seeking to compel production pursuant to her Second Request. Plaintiff did so without making any effort to meet and confer regarding Defendants objections to the Second Requests. Plaintiffs Amended Motion also seeks the production of metadata for a single document, even though Plaintiffs document requests included no request for metadata, and even though there is no question about the date and time that the particular document was sent. Plaintiff also argues that Defendants waived their right to object to Plaintiffs requests, notwithstanding Defendants provision of lengthy objections and responses more than a month before the present motion. 15. Plaintiff has also served subpoenas on two of the financial services firms who

may lend the funds to match Anthos offer, and to depose CrossFit about the information it provided to those lenders. Concurrent with the filing of this opposition to the Amended Motion, Defendants have moved to quash those subpoenas and to prevent Plaintiff from obtaining this information in the deposition of CrossFits corporate designee. II. ANALYSIS. A. 16. Defendants Objections Were Timely Made and Not Subject to Waiver. Plaintiffs argument for waiver is a blatant attempt to rewrite history and the

course of the parties dealings. Plaintiff contends that the fact that Defendants first served a letter response to Plaintiffs overly-long and unduly burdensome initial requests for production (the absurdity of which was only heightened by the expedited schedule in place at that time) constitutes waiver of all objections. Yet, as set out above, Defendants timely responded to Plaintiffs discovery requests in a manner consistent with expedited discovery, objected to them in toto, and reserved all further objections. Defendants response also specifically identified what documents they would produce and invited Plaintiff to serve a more reasonable set of 6
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document requests to which Defendants would provide particularized responses and objections. See Ex. 2. When Plaintiff objected to the form of Defendants objections and responses,

Defendants amended their responses and objections to suit Plaintiffs unreasonable request. The parties then conducted discovery for over a month on the basis of those responses and objections. Plaintiff cannot now assert that Defendants waived their right to object. 17. Delaware Courts do not apply the deadlines set out in Court of Chancery Rule 34 See, e.g.,

in a mechanical manner, but rather look to the facts and circumstances of each case.

Electra Inv. Trust v. Crews, 1999 WL 1204844, at *2 (Del. Ch. Nov. 30, 1999) (holding that no waiver occurred where the parties disputed whether an agreement to stay discovery had been formed); Reserves Dev. LLC v. R.T. Props., LLC, 2009 WL 3320578, at *1 (Del. Super. Ct. Sept. 21, 2009) (finding no waiver where expedited time frame and unanticipated events rendered compliance impractical). 18. In fact, the Gower v. Bedlock case cited by Plaintiff in her brief provides that,

under these circumstances, a finding of waiver is not appropriate where an initial response was timely served. In that matter, the responding party filed both initial and amended responses to discovery requests; at issue was the timing of the amended responses. As the Court stated, if the defendants initial response to the second request for documents was timely, the revised response would relate back to the initial response and would be considered timely as well. Gower, 1998 WL 2000267, at *3 (Del. Ch. Apr. 21 1998) (emphasis added). The Gower court concluded, however, that the date of the initial responses could not be ascertained, and therefore that the relation-back doctrine did not apply. Here, there is no question that Defendants timely served their initial response to Plaintiffs objections a response that reserved objections, identified the scope of Defendants production, and noted the impropriety of Plaintiffs overly7
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broad requests. Defendants supplemented that response, at Plaintiffs request, not to alter the scope of their intended production, but to provide itemized responses to each of the 115 individualized document requests. For Plaintiff to act now as though this exchange did not occur, and to argue for waiver, is nothing more than gamesmanship. 2 19. Further, none of the authority cited by Plaintiff arises in the context of expedited

discovery for purposes of a preliminary injunction hearing, as was the case at the time this exchange occurred. See Reserves Dev., 2009 WL 3320578 (noting expedited time frame as a Here, the parties agreed to a shortened time frame for discovery and

reason to deny waiver).

depositions far less than the time allotted under the Court of Chancery Rules and were attempting to work within those schedules in an efficient manner. Even had Defendants not agreed to Plaintiffs request for supplemental responses and objections, Defendants letter response was sufficient under the circumstances. 3

The Fingold case cited by Plaintiff is also not on point. In that case, the failure to assert attorney-client privilege as to a particular document constituted waiver after the moving party sought to compel production of that document. This case does not apply to Plaintiffs argument for blanket waiver of all objections. See Fingold v. Computer Entry Sys. Corp., 1990 WL 11633 at *1 (Del. Ch. Jan. 26, 1990). Defendants have served a privilege log, which Plaintiff has not challenged, asserting the bases for their withholding of individual materials. If Plaintiffs argument were correct, it would be effectively impossible to object to a set of discovery requests on the ground that they were overbroad and unduly burdensome. Suppose, for example, that a plaintiff had propounded 5,000 interrogatories and 10,000 requests for admission in the context of a two-week preliminary injunction proceeding. Under Plaintiffs theory, the defendant would need to propound individual responses to each and every one of those interrogatories and document requests in order to preserve the objection that the requests were overbroad and unduly burdensome in the first place. That cannot be, and is not, the law. See Ct. Ch. R. 1 (Court of Chancery Rules shall be construed and administered to secure the just, speedy and inexpensive determination of every proceeding). 8

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B.

Plaintiffs Second Requests Are Irrelevant, Unlikely to Lead to the Production of Relevant Evidence, and an Improper Attempt to Obtain Discovery for Use in Another Matter. Plaintiffs Second Requests seek information about Defendants efforts to obtain

20.

funding for Mr. Glassmans matching offer in the Divorce Action. That information is irrelevant to the claims at issue in this case and should be properly sought in the Divorce Action to the extent it is even relevant there. Accordingly, Plaintiffs Amended Motion in this proceeding should be denied with respect to that information. 21. As a threshold matter, Plaintiff did not meet and confer regarding Defendants

responses and objections to the Second Requests, ignoring the suggestion of Court of Chancery Guideline 7(a): Parties should meet and confer before bringing discovery disputes to the Courts attention. The Court will not be inclined to consider arguments or authorities that have not previously been presented to the other side. If the argument or authority had been presented, perhaps the dispute would have been resolved. On that basis alone, Plaintiffs request should be denied. 22. Moreover, Plaintiffs sole argument for the relevance of the requested materials is

the purported similarity between Mr. Glassmans actions in seeking financing for his offer in the Divorce Action, and Plaintiffs original misuse of confidential CrossFit information to sell her equity interest in the Company. Plaintiff apparently believes that because the Company has shared its own documents with potential lenders, her conduct is excusable. That argument demonstrates a complete misunderstanding of Defendants counterclaims in fact, the present situation has no similarity to Defendants breach of duty claims. 23. Any corporate information provided to potential lenders was done by the

Company and with the full knowledge of CrossFits management. The Company determined 9
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what information should be provided to the lenders, and the Company had the opportunity to impose confidentiality protections as it deemed necessary. Moreover, the Company would have standing to bring suit for misuse of that data in the event that the lenders did not safeguard it appropriately. On the other hand, when Plaintiff surreptitiously disclosed CrossFits information to Anthos, she did not inform the Company that she intended to turn over confidential information to Anthos, did not allow the Company to decide what information could be turned over, and did not afford the Company a chance to impose confidentiality obligations that it deemed appropriate.4 Rather, she breached her fiduciary duties by secretly turning over

corporate information for her own gain, without so much as even informing CrossFit of her intent to do so let alone requesting its permission. 24. Management determined that it was appropriate to provide information to the

lenders, and Plaintiff offers no authority, nor are Defendants aware of any, for the proposition that management cannot make such a decision without board approval. As a general rule, management is generally free to operate the corporation in the ordinary course without board approval; a chief executive officer has no obligation to continuously inform the board of his actions as CEO, or to receive prior authorization for those actions. In re Walt Disney Co. Derivative Litig., 907 A.2d 693, 761 (Del. Ch. 2005). By contrast, as set out in Defendants Motion for a Temporary Restraining Order, a director may not use company data for her own purposes, without notice to the company of how that data is being distributed. See Motion for Temporary Restraining Order (Aug. 31, 2012) at 10-12.
4

Thus, Defendants dealings with

Defendants have particular reason to be concerned about sharing information with Anthos, as it has direct connections to competitors of CrossFit and its partners. Moreover, the purported Nondisclosure Agreement between Anthos and Ms. Glassman does not provide any rights to CrossFit to enforce its terms, and does not appear to have been executed by the Anthos entities who actually signed the purchase and sale agreement. See Ex. 15 (Nondisclosure Agreement between Anthos Capital LLC and Lauren Glassman). 10

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potential lenders have no relevance to whether Plaintiff was justified in disclosing confidential CrossFit information to Anthos. 25. As discussed above, Plaintiffs efforts to obtain information related to

Defendants interactions with potential lenders are therefore only relevant (if at all) to the Arizona Divorce Action where Ms. Glassman is apparently desperate to avoid being required to accept Mr. Glassmans tender of the same amount currently promised by Anthos. The Court of Chancery has squarely held that its processes should not be used solely for the purposes of gathering discovery for parallel actions. In United Nuclear Corp. v. Energy Conversion Devices, Inc., 1980 WL 272832 (Del. Ch. Aug. 29. 1980), the Court faced a situation much like this one. The plaintiff in that matter sought discovery in a suit in Illinois state court, which the defendants strongly resisted. Plaintiff withdrew a motion to compel discovery in the Illinois proceeding, and subsequently focused its efforts on obtaining the same discovery against the same defendants through a subsequently-filed litigation in this Court. This Court declined to allow the discovery therein, noting that it was clear what is really involved here is an attempt by the plaintiff to take discovery in the Delaware action which, for some reason, it does not desire to take in the Illinois action although it intends to use the fruits of the discovery in the Illinois action. Id. at *2. 26. Here, Plaintiff ostensibly continues to oppose Mr. Glassmans efforts to match

Anthos offer, despite the equal economic value of the two deals, and has pressed in Arizona for information regarding the financing process. See Exs. 10-11. However, she has not attempted to use the discovery processes available in the Arizona Court; rather she is attempting to leverage this Courts authority for that purpose. For these reasons, it appears that these document requests are not made for a legitimate purpose, but rather for use in a foreign proceeding, and to interfere with Defendants ability to obtain the financing. 11
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C. 27.

Plaintiff Did Not Request And Is Not Entitled to Metadata. Plaintiffs motion seeks to compel production of metadata related to one

document a July 26th email and its scanned attachment sent from Ken Smith to Cirrus Aircraft (Cirrus) confirming CrossFits intention to move ahead with the purchase of an airplane. See Motion Ex. L. However, Plaintiff did not even ask for the production of metadata in her document requests, or at any time before Defendants completed their production. Indeed, none of the parties have produced any metadata thus far. Accordingly, Plaintiff has no basis to compel its production now. Further, the metadata is not dispositive, or even relevant, to any question at issue in this case and its production now would be unduly burdensome. That said, Defendants do not object to the production of the requested metadata so long as Plaintiff bears the costs of collection and production. 1. 28. Plaintiff Did Not Request Metadata, and Cannot Now Request that Defendants Perform Document Discovery a Second Time.

First, Plaintiffs did not ask for metadata in her document requests. To the extent

that Plaintiff requested native files in her First Requests which is not the same thing as metadata Defendants objected to that request and stated that they would provide documents in the form of image files and database load files, without regard for any particular metadata fields. 5 See Ex. 6. Plaintiff did not take issue with that objection. 29. There is no basis for Plaintiff to move to compel the production of data not sought

in her document requests. Under Court of Chancery Rule 37, a motion to compel can be brought
5

Defendants understand Plaintiffs original request for native files to mean production of the file in a format readable by the same program that created it originally. Defendants further understand Plaintiffs present request for metadata to mean information related to an electronic file or email, describing when and how the file was created or modified. Production of a file in native format does not necessarily preserve metadata, nor does production of a file as a series of linked images (as Defendants have done so far) necessarily destroy metadata. Preservation of metadata usually requires the engagement of technology professionals to extract files from the target computer. 12

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when a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested in which case, the party who submitted the request may move for an order compelling inspection in accordance with the request. See Ct. Ch. R. 37(a)(2) (emphasis added). Because there was no request for metadata, there cannot be an order compelling inspection in accordance with such a request. 30. Moreover, as a practical matter, neither party has produced metadata in this case.

Indeed, Plaintiff has produced numerous documents in undifferentiated and unsearchable PDF files, requiring Defendant to take time to separate and render searchable Plaintiffs production. Thus, there is nothing in the parties course of dealing that would imply an expectation of receiving metadata. 31. Finally, having waited until after Defendants collected their documents to request

metadata works an undue burden on Defendants. As described above, Defendants do not have a central email server and have had to work with individual custodians to collect emails. As such, it was not effective or efficient to gather metadata. The burden of re-collecting these materials for purposes of gathering metadata would far exceed its probative value. 2. 32. Metadata Is Not Probative of Any Issue in this Case.

Metadata is not relevant to any issue in this case. Plaintiff asks for metadata

about a single email that was sent on July 26, 2012, attaching a scan of the confirmation letter sent to Cirrus in July. There is no dispute that the email and letter were sent on July 26 the date reflected on the face of the email and documents produced by Cirrus indicate that they received that email. Plaintiff does not need metadata to establish those facts. 33. Rather, Plaintiff only raises the metadata issue to point out an inadvertent error

made by Defendants in oral argument before this Court in July, regarding the sequence of events 13
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surrounding CrossFits confirmation of its intent to purchase the aircraft. While Defendants certainly regret that error, it is no longer relevant to any pending issue and has been obviated by subsequent proceedings in this case. 34. The relevant facts are as follows: in mid-July, Cirrus requested confirmation that

CrossFit planned to move ahead with the aircraft purchase. Ken Smith, head of Finance at CrossFit, told Cirrus during the week of July 16 that he would send Cirrus a signed confirmation letter. Affidavit of Kenneth Smith, 3. At a breakfast meeting on July 24, Mr. Smith met with Mr. Glassman, and they executed the confirmation letter. Id. 4. Mr. Smith then contacted Cirrus and told them that the letter was signed. Id. 5. 35. This action was commenced on the same day: Shortly after Mr. Smith assured

Cirrus that the letter had been executed, CrossFit was informed that Ms. Glassman was seeking expedited relief to halt the transaction. Id. 6. As the letter had already been signed, and that fact had already been communicated to Cirrus, CrossFit believed that the deal was confirmed. However, CrossFit did not send a copy of the July 24 letter to Cirrus until two days later, on July 26. Id. 7. That letter was sent by means of the email at issue in Plaintiffs Amended Motion. 36. In collecting information in anticipation of oral argument on Plaintiffs initial

request for a temporary restraining order, CrossFits counsel mistakenly believed that the letter had been placed in the mail to Cirrus on July 24th, when in fact it had not. Instead, the letter had only been signed and the fact of that signature communicated to Cirrus. As a result of its misunderstanding, CrossFits counsel mistakenly reported to the Court during oral argument that the letter had already been sent. Defendants regret the inaccuracy. However, to be clear: Defendants do not dispute that the letter was not sent until July 26. Accordingly, the metadata related to the email and its attachment is irrelevant. 14
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37.

Ultimately, the date on which the letter was sent caused Plaintiff no prejudice, as

this Court considered Plaintiffs motion and declined to grant the requested injunctive relief because the balance of harms did not weigh in Plaintiffs favor. See Aug. 3, 2012 Tr. at 18:2119:1 (assuming that the loss here does represent irreparable harm, if there is an ultra vires action -- I am at a loss here to say that [the harm] is greater if I direct a certain action than if I dont.) Further, Plaintiff has since abandoned her claim for injunctive relief as to the aircraft given Defendant Greg Glassmans undertaking to acquire it if the Court rules against Defendants. 38. Therefore, there is no need for the production of the requested metadata, and

Plaintiffs Motion to Compel should be denied. However, to the extent Plaintiff undertakes to bear the costs of collection and production, Defendants are nonetheless willing to re-produce the requested email with metadata. III. CONCLUSION 39. Therefore, for the reasons set forth above, Defendants respectfully submit that

Plaintiffs Motion to Compel be denied. /s/ Raymond J. DiCamillo Raymond J. DiCamillo (#3188) Kevin M. Gallagher (#5337) Richards, Layton & Finger, P.A. 920 North King Street Wilmington, Delaware 19801 (302) 651-7700 Attorneys for Defendants CrossFit, Inc. and Greg Glassman

OF COUNSEL: Blair G. Connelly William O. Reckler Paul Serritella Kyle L. Wallace Latham & Watkins LLP 885 Third Avenue New York, New York 10022 (212) 906-1200 Dated: October 25, 2012

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