52200729 cleanedcrossfit letter to glasscock response to anthos letter
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October 16, 2012 VIA FEDEX & EFILING The Honorable Sam Glasscock, III Court of Chancery 34 The Circle P.O. Box 424 Georgetown, Delaware 19947
Re: Glassman v. CrossFit, Inc., et al., C.A. No. 7717VCG
Dear Vice Chancellor Glasscock:
We write in response to the letter of today's date from counsel for nonparty
Anthos Capital ("Anthos") regarding this Court's Order granting Defendants' motion to
compel the production of certain documents in Plaintiff Lauren Glassman's possession,
custody or control. While stating that Anthos does "not intend to reargue the Court's
Decision," Anthos then requests an opportunity to do exactly that asking that this Court
hold "in abeyance" its decision regarding "the documents withheld by Plaintiff on
common interest grounds" until such time as Anthos can weigh in on the subject. Anthos
then asks that it be given until October 22 to do so. Anthos' request is improper and
unwarranted, particularly in light of the significant delays that Defendants have already
endured in seeking to obtain these documents.
Raymond J. DiCamillo 3026517786 [email protected]
EFiled: Oct 16 2012 04:20PM EDT Transaction ID 47085328 Case No. 7717VCG
The Honorable Sam Glasscock, III October 16, 2012 Page 2
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As the Court is aware, Defendants filed their motion to compel on August 31,
2012. Plaintiff responded on September 4, 2012, and the motion was argued for the first
time on September 5, 2012. During that hearing, Your Honor stated that a reply brief
addressing the choice of law issue that Plaintiff had raised would be helpful. Defendants
submitted their reply on September 18, 2012. Plaintiff then submitted a "supplemental"
letter brief on September 19, 2012 ostensibly to address choiceoflaw issues, but in
fact dropping the issue entirely and rearguing other points. Defendants replied on
September 21, 2012.
After Defendants were advised that Your Honor intended to hear argument on that
motion at the same time as the argument on Defendants' motions to compel against
Anthos and Plaintiff's financial advisor (WTAS), Defendants wrote the Court to express
concern about the delay that would result, and to request that the fullybriefed motion to
compel against Ms. Glassman proceed to decision. In that letter we noted that Anthos
was unquestionably aware of the pending motion, but had chosen not to intervene or
assert its position in any way. We included with that submission a September 17, 2012
letter from Anthos' counsel, confirming that Anthos was aware of the pending motion.
Our letter was filed publicly on September 28, 2012. (A copy of our letter, with the
attached letter from Anthos' counsel, is attached as Exhibit A.) Notably, Plaintiff the
party who purportedly has a "common interest" with Anthos raised no objection to the
Court's proceeding in that manner. The Court heard another oral argument on
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Defendants' motion to compel on Monday, October 8th, and advised the parties that a
decision would issue by the end of the week.
Anthos was unquestionably aware that this Court was preparing to rule on the
motion filed against Plaintiff by the end of the week. On Wednesday, October 10th,
Anthos' counsel stated in an email that Anthos would not be able to respond to
Defendants' motion to compel against Anthos by October 15th, and noted that she
assumed "both sides will want the benefit of any decision by Vice Chancellor Glasscock
on that motion before finalizing briefing on the motion against Anthos." Defendants
specifically advised Anthos' counsel that Your Honor had indicated that a decision would
issue this week. (See email dated October 10, 2012 from Paul Serritella to Angela
Dunning, attached hereto as Exhibit B.) Yet Anthos still did not object, intervene or ask
the Court to hold its decision "in abeyance."
It was only after this Court granted Defendants' motion that Anthos first
announced it had a problem with the procedure. Although Defendants have been waiting
two months through two rounds of briefing and two arguments to receive these
documents, and although trial is now scheduled for November 26, 2012, Anthos now
belatedly asks the Court to effectively give Ms. Glassman a third bite at the evidence
withholding apple, only this time by proxy. Anthos' request is a patently obvious tactic to
delay the production of relevant evidence and interfere with Defendants' ability to prepare
for trial. It is particularly inappropriate given that the compressed time frame is entirely
The Honorable Sam Glasscock, III October 16, 2012 Page 4
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due to Anthos and Ms. Glassman, whose putative contract expires by its terms on
December 31, 2012. Having created the "emergency" that has required a compressed
time frame, Anthos is in no position to complain about the "burdens" associated with it.
Nor is Anthos in any position to ask Defendants to wait even longer to obtain documents
from Ms. Glassman, after Anthos sat passively on the sidelines for two months rather
than assert the position it now advances.
Anthos' letter also shows that it intends to further delay the resolution of
Defendants' motion to compel against Anthos, stating that it intends to serve a privilege
log by "the end of October," which would make it difficult for the Court to assess the
validity of Anthos' privilege claims before then. Defendants have been asking Anthos for
such a log since at least September 13, 2012. (See Letter from William O. Reckler to
Angela Dunning dated September 13, 2012, attached as Exhibit C.)
Notably, Plaintiff has yet to produce any of the documents that were the subject of
Defendants' motion. Although Plaintiff's counsel has stated that it intends to do so
"within a reasonable time," Plaintiff has yet to give a date certain for doing so despite
Defendants' request. The gamesmanship is obvious.
Anthos has plainly been working hand in glove with Ms. Glassman for some time.
There is no reason why this Court should delay anything with respect to Ms. Glassman,
nor is there any reason why Anthos should need yet additional time to respond to a
motion its counsel received no later than October 10th. Defendants respectfully request
The Honorable Sam Glasscock, III October 16, 2012 Page 5
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that the Court reject Anthos' request that its order be held "in abeyance," that it order Ms.
Glassman to produce the documents in question immediately, and that it order Anthos to
respond to the pending motion by no later than October 18th.
If Your Honor has any questions regarding this matter, counsel are available at the
Court's convenience.
Respectfully, /s/ Raymond J. DiCamillo Raymond J. DiCamillo (#3188)
cc: Philip Trainer, Jr., Esquire (by efile)
ToniAnn Platia, Esquire (by efile) Brian C. Ralston, Esquire (by efile)