IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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`ACERO CAPITAL, L.P.
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`Plaintiff,
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`SWRVE MOBILE, INC., et al.
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`Defendants.
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`C. A. No. 2020-0876-PAF
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`AFFIDAVIT OF SHANE M. BRADWELL, ESQ.
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`I, Shane M. Bradwell, being first duly sworn according to law, do hereby
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`depose and say:
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`1.
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`I am competent to make a declaration, am over the age of 18 years of
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`age, and have personal knowledge of the facts set out herein.
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`2.
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`I am an associate in the law firm of O’Hagan Meyer, LLC, and counsel
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`to the Defendants in this matter. I am licensed to practice law in the State of Illinois
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`and will be seeking admission pro hac vice for this case.
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`3.
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`On July 30, 2021, lead counsel for Defendants, Alan Albert, emailed
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`Plaintiff’s counsel and advised that the first tranche of documents was ready to be
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`produced following agreement on a protective order. Mr. Albert attached a proposed
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`agreement to his emails for Plaintiff’s counsel’s review.
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`1
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`EFiled: Oct 10 2022 11:56AM EDT
`Transaction ID 68231535
`Case No. 2020-0876-PAF
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`ACERO CAPITAL, L.P.
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`Plaintiff,
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`SWRVE MOBILE, INC., et al.
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`Defendants.
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`C. A. No. 2020-0876-PAF
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`AFFIDAVIT OF SHANE M. BRADWELL, ESQ.
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`I, Shane M. Bradwell, being first duly sworn according to law, do hereby
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`depose and say:
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`1.
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`I am competent to make a declaration, am over the age of 18 years of
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`age, and have personal knowledge of the facts set out herein.
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`2.
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`I am an associate in the law firm of O’Hagan Meyer, LLC, and counsel
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`to the Defendants in this matter. I am licensed to practice law in the State of Illinois
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`and will be seeking admission pro hac vice for this case.
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`3.
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`On July 30, 2021, lead counsel for Defendants, Alan Albert, emailed
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`Plaintiff’s counsel and advised that the first tranche of documents was ready to be
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`produced following agreement on a protective order. Mr. Albert attached a proposed
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`agreement to his emails for Plaintiff’s counsel’s review.
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`1
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`EFiled: Oct 10 2022 11:56AM EDT
`Transaction ID 68231535
`Case No. 2020-0876-PAF
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`4.
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`On September 22, 2021, Plaintiff’s counsel finally responded to Mr.
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`Albert with his edits to the protective order. Later that day, Mr. Albert agreed to
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`Plaintiff’s proposed changes.
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`5.
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`Two days later, on September 24, 2021, I produced to Plaintiff’s
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`counsel the first tranche of documents from Defendants, Bates Nos. Swrve 1 to 367.
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`6.
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`On December 3, 2021, Plaintiff’s counsel provided defense counsel
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`with an initial set of proposed search terms and custodians. On December 17, 2021,
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`Plaintiff’s counsel followed up with defense counsel and requested a time to discuss
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`the search terms. Defense counsel responded that day and provided his availability.
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`Three weeks later, on January 7, 2022, Plaintiff’s counsel responded to defense
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`counsel with his availability, and a meet and confer was scheduled for the following
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`week.
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`7.
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`During the January 2022 meet and confer, Defense counsel advised
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`Plaintiff’s counsel that the 236 search terms were excessive and overly broad, and
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`requested they be refined. In subsequent meet and confers, Defense counsel
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`reiterated his concerns regarding the search terms.
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`8.
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`On July 26, 2022, the parties filed the Scheduling Order, which
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`provided for completion deadlines of September 1, 2022, and September 15, 2022.
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`9.
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`On August 10, 2022, Plaintiff’s counsel wrote Defense counsel and
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`stated that since they had not received a hit report, yet – “we assume that you are
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`2
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`running our proposed search terms”. Defense counsel responded on August 12,
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`2022, that “collection has been a challenge because the custodians you have named
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`are located in multiple countries. We’ve pulled in additional attorney to help to
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`expedite matters.” Defense counsel also wrote “I strongly urge you to pare down
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`these requests. It bears keeping in mind that this is, at heart, a fairness case. The
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`core issues center on the transaction made and its financial implications. A wild
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`goose chase through 236 terms is unlikely to produce much that is relevant to those
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`core issues, let alone likely to be admissible.”
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`10. On September 12, 2022, Defense counsel through its ESI Vendor
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`produced the first set of documents related to the search terms and requested
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`custodians. Defense counsel has continued to produced documents as quickly as
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`possible on a rolling basis through September and into October 2022.
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`11. To date, all named custodians’ ESI (with the exception of third-party
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`material unavailable to Defendants) has been collected and searched pursuant to
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`Plaintiff’s desired search terms, with the minor exception of the personal E-mail of
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`a former director, not under Defendants’ control, who has professed an intention to
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`cooperate but whose cooperation has been slow in coming and finally resulted in
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`provision of access to the ESI vendor on October 9.
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`12. Despite diligent efforts on the part of Defendants, some isolated
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`potential repositories of ESI not under Defendants’ control have not been made
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`accessible for collection and search. In particular, Defendants have not been
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`provided access to non-Company E-mail accounts utilized by a former employee
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`(Mr. Mersch) and a former director not a party to this action (Mr. Stang), and E-mail
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`resident on the servers of an Irish government agency, the National Treasury
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`Management Agency (NTMA). If Plaintiff wishes to conduct third-party discovery
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`to seek access to these resources that are unavailable to Defendants, Defendants will
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`cooperate fully.
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`13. To date, all available ESI has been searched pursuant to Plaintiff’s
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`broad, desired search parameters, and all documents yielded by those searches had
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`been produced.
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`14. A team of 15 attorneys, operating under the direction of undersigned
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`counsel, has conducted a fulsome privilege review of materials initially flagged by
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`a narrow privilege screen, and privilege logs based on those efforts are expected to
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`be complete within approximately seven days.
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`15. Hit reports have been generated for the collected ESI, by custodian, and
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`furnished or requested they be furnished to Plaintiff’s counsel, and – as Defendants
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`have made clear for weeks – Defendants are ready, willing and able to re-produce
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`ESI pursuant to further narrowing of the search parameters by Plaintiff’s counsel.
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`16. Defendants are ready, willing and able to negotiate revised search terms
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`and parameters, and to re-produce documents in accordance with those revised terms
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`4
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`and parameters and following a responsiveness review of the documents thereby
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`generated.
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`17. The ESI collection process on this matter has been extremely
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`challenging given the breadth of search terms, and the fact that custodians email
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`accounts were preserved by a number of different companies, with different IT
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`Departments – many not parties to this litigation.
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`18. Additionally, there was confusion amongst Defense counsel, the
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`custodians, and the ESI vendor, regarding the collection process and the status of
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`collection efforts which further delayed Defendants’ document production.
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Executed on October 10, 2022.
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`Shane Bradwell
`O’Hagan Meyer LLC
`Counsel for Defendants
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`SWORN TO AND SUBSCRIBED BEFORE ME
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`this 10th day of October, 2022
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`_____________________
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`Notary Public
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`My Commission Expires
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`5
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