Sayce v. Forescout Technologies, Inc.

Background

The court addressed several discovery disputes presented in joint letters filed by the parties. The plaintiffs’ disputes concerned their first set of requests for production served on June 23, 2023. They asked the court to impose a substantial-completion deadline and to resolve objections to specific requests. The defendants separately sought additional documents from the Glazer plaintiffs, along with a possible renewed deposition of Mark Ort and permission to file a supplemental response concerning class certification.

Plaintiffs’ Discovery Requests

The plaintiffs argued that the defendants were improperly trying to divide discovery into separate periods tied to different alleged statements. The defendants proposed separate periods for requests concerning the 2019 statements and the May 11, 2020 merger statement.

The court rejected the proposed division into two separate discovery periods. It found some discovery before and after the class period relevant and proportional to the needs of the case. The court found the plaintiffs’ proposed start date reasonable but found no explanation for extending discovery through June 2023. It therefore set the relevant period at January 1, 2018, through December 31, 2020, unless an individual request stated otherwise.

For Request for Production No. 29, concerning documents and communications related to Forescout’s 2019 decision to sell the company or take it private, the court found the request reasonably specific. It ordered the defendants to produce all responsive, nonprivileged documents within the court’s defined time period.

For Request for Production No. 30, concerning documents provided to Advent during merger negotiations that related to the sales pipeline, transactions, discounts, payment terms, earnings, or financial performance, the court found that the defendants had unduly narrowed the potentially relevant documents. It ordered production of responsive, nonprivileged documents within the defined time period.

For Request for Production No. 32, concerning documents produced to Advent in the Delaware litigation, the court found the request overbroad as written but recognized that the parties had agreed to search terms narrowing it. The court ordered the defendants to apply those agreed search terms to documents from January 1, 2018, through December 31, 2020.

Defendants’ Discovery Requests

The defendants sought three categories of documents from the Glazer plaintiffs: communications containing “Forescout” or “FSCT” from January 1 through May 20, 2020, in the files of five investment-team members; notes and other files of Mark Ort, Paul Glazer, or Anthony Baumann relating to Forescout; and centrally maintained investor communications and materials reviewed by Glazer’s investment team concerning its Forescout investment.

The defendants argued that Mark Ort’s deposition and references to a “Work File” showed that additional contemporaneous communications could provide information relevant to Glazer’s adequacy and typicality as a class representative. The plaintiffs responded that they had already produced the Work File, nearly 2,000 pages of documents, and other materials describing Glazer’s investment goals, strategy, and decision-making process.

The court found the requested documents relevant and the requests reasonably specific. It ordered the Glazer plaintiffs to produce all responsive, nonprivileged documents within the three categories, to the extent they had not already been produced. Publicly available documents did not have to be produced.

Additional Deposition, Supplemental Filing, and Scheduling

The court granted the defendants the opportunity to re-depose Mark Ort and file a supplemental response concerning the plaintiffs’ class-certification opposition if warranted after the ordered production. It set February 13, 2024, as the substantial-completion deadline for the ordered discovery. The court also ordered the parties to meet and confer about the deadline for the plaintiffs’ class-certification reply, a date for the defendants’ supplemental filing, and a new class-certification hearing date. If the parties could not agree, they could notify the court, which would schedule a status conference.

Judge Susan Illston entered the order on January 16, 2024.