IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

OPTIMISCORP, a Delaware corporation, ALAN MORELLI, and ANALOG VENTURES, LLC,

Plaintiff s ,

v. JOHN WAITE, WILLIAM ATKINS, GREGORY SMITH, and WILLIAM HORNE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 8773

- VCP

MEMORANDUM OPINION Submitted: Oc t o ber 22 , 2014 Decided: January 28, 2015
Anthony W. Clark, Esq., Douglas D. Herrmann, Esq., Amy C. Huffman, Esq., SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware ; Attorneys for Plaintiff

s OptimisCorp, Alan Morelli, and Analog Ventures, LLC

. Stephen P

. Brauerman , Esq., Vanessa R. Tiradentes, Esq., Sara E. Bussiere, Esq., BAYARD, P.A., Wilmington, Delaware; Attorneys for Defen d ant s John Waite, William Atkins, and Gregory Smith. Bruce E. Jameson, Esq., Eric J. Juray, Esq., PRICKETT, JONES & ELLIOTT, P.A., Wilmington, Delaware; Attorneys for William Horne

. PARSONS, Vice Chancellor.1

Before the Court are the plaintiffs‟ motion to amend the complaint and the defendants‟ related mo tion in limine to exclude allegedly undisclosed causes of action. In short, the defendants moved for summary judgment , and the plaintiffs responded with evidence that the defendants do not believe fairly was pled or disclosed during discovery. Following argument on the motions for summary judgment, the plaintiffs moved to amend their complaint and the defendants sought to exclude the purportedly new allegations and claims . For the reasons that follow, the plaintiffs‟ motion to amend is
denied and the def

endants‟ motion in limine is granted in part and denied in part

.

I. BACKGROUND Plaintiff OptimisCorp (“Optimis” or the “Company”) is a healthcare technology and service provider. Plaintiff Alan Morelli founded Optimis in 2006 and has been the CEO and chairma n of the board ever since. Morelli also is the managing member of Plaintiff Analog Ventures, LLC (“Analog,” and together with Optimis and Morelli, “Plaintiffs”), a company that owns a significant percentage of Optimis‟s stock. Overall , Morelli directly o r indirectly controls almost 7.4 million Optimis shares

. 1 Defendants John Waite, William Atkins, and Gregory Smith (the “Director Defendants”) served on the Optimis board from June 2007 until their resignations on June 25, 2013. Waite also served as the C ompany‟s Chief Operating Officer from 2009 until June 25, 2013. The Director Defendants became associated with Optimis after they

1 There is no apparent indication in the record as to what percentage ownership these 7.4 million shares represent.2

had sold their company, Rancho Physical Therapy , Inc. (“Rancho”) , to Optimis. As a
result of that sale, the Director Defenda nts acquired nearly eight million shares of Optimis stock.
Defendant William Horne (together with the Director Defendants, “Defendants”) started as a consultant to Optimis in 2006. From January 2008 until May 2013, he served as the company‟s Chief Finan cial Officer. Horne owns slightly less than 170,000 shares
of Optimis stock. On August 5, 2013, Plaintiffs filed their Verified Complaint (the “Complaint”) alleging that Defendants : (1) breached their fiduciary duties ; (2) violated a stockholder agreement to which they were, and are, parties ; (3) tortiously interfered with the Company‟s contracts and business relations ; and (4) generally attempted an unlawful takeover of Optimis by, among other things, using the pretext of purported ly false sexual
harassme nt allegations made by Tina Geller, an Optimis physical therapist . Roughly a year later, after substantial discovery, the Director Defendants and Horne separately moved for summary judgment. The briefing on those motions exceeded 2 80 pages. I heard argu ment on the motions for summary judgment on September 8, 2014, and by
O rder entered on the same day as this Memorandum Opinion, I deny both motions

. The crux of the current dispute relates to arguments made during the briefing on summary judgment. In co nnection with their opposition briefs, on August 24, 2014, Plaintiffs filed three affidavits, one each from Stephen Levine, Helene Fearon, and Catherine Gentry. The Fearon and Levine affidavits, which are almost identical, aver facts that Plaintiffs rely on to support their allegations that Defendants were involved in a3

conspiracy along with Jo e Godges, George Rohlinger, Jea nine Gunn, Fearon, Levine , and
others to undermine Morelli. Those affidavits also allegedly support Plaintiffs‟ tortious
interference claims by detailing the circumstances of what the parties have call ed the “Fearon Rescission.” 2 Of particular note, Plaintiffs entered into Confidential Cooperation and Release Agreements with Fearon and Levine on May 2 and May 11, 2014, respectively, bu t the affidavits first appeared as exhibits to Plaintiffs‟ opposition briefs in late August . The Gentry affidavit purports to support Plaintiffs‟ allegations of continued
interference with Rancho. Intimately inte rtwined with resolution of the summary ju dgment motions are Plaintiffs‟ motion to amend the complaint (the “Motion to Amend”) and Defendants‟ joint motion in limine to exclude undisclosed causes of action (“Defendants‟ Motion in
Limine ”)

. Plaintiffs moved to amend on September 10, 2014, primaril y to allege the
existence of additional co - conspirators, and De fendants filed their Motion in L imine on September 26. T he Motion in L imine represents , in effect, a further opposition to the
Motion to A mend and both parties relied, in part, on arguments ma de in the ir respective summary judgment briefs regarding the motions to amend and in limine

. After full
b riefing on th e latter two motions , the Court heard oral argument on October 22.

2 Tim Fearon, Helene‟s husband, owned FearonPT, a physical therapy company. He sold that company to Optimis in September 2010 in a stock purchase agreement (“SPA”). Under t he terms of the SPA, Tim Fearon could rescind the transaction anytime before midnight on December 21, 2012. He ultimately did so, allegedly at the urging and encouragement of Defendants. Plaintiffs allege that Defendants‟ actions regarding the Fearon Res cission constituted tortious interference.4

Because of the close relationship between the summary judgment motio ns and the
related motion s to amend and to exclude undisclosed causes of action, I consider ed it
most efficient to resolve the latter motions first. This Memorandum Opinion , therefore, constitutes my ruling on Plaintiffs‟ Motion to A mend an d Defendants‟ M otion in
L imine

. 3 In considering the motions at issue , the Court extensively reviewed the items in
the discovery record to which the parties cited in the ir briefs. All told, this required review of over a thousand pages of material in addition to the alr eady substantial briefing

on the several pending motions in this case

. II. STANDARD S OF REVIEW Because Plaintiffs filed their Motion to Amend after the scheduled date for completion of fact discovery and after briefing and argument on comprehensive motions
f or summary judgment, the pending motions require me to consider the intersection of the principles of notice pleading an d the rules governing discovery. C onsiderations of that nature were important in deciding whether to allow the requested amend ment of t he Complaint

.

3 In a separate Order being entered this same date, I deny Defendants‟ motions for summary judgment. I also note that Defendants argued that the Motion to Amend should be denied as futile because none of the cla ims would survive a Rule 12(b)(6) motion to dismiss. Defendants raised similar arguments in their summary judgment briefing. I do not consider those arguments persuasive, and that contributed to my decision to deny the motions for summary judgment. This Memorandum Opinion focuses almost entirely on Plaintiffs‟ timeliness, the prejudice to Defendants, and Plaintiffs‟ actions during discovery.5 A. Notice Pleading A complaint must contain sufficient facts to place the opposing party on notice of the claims asserted and the basis for relief. 4 This pleading standard is “minimal.” 5 The Court must “ accept even vague allegatio ns in the Com plaint as „well

- pleaded‟ if they provide the defendant notice of the claim .” 6
B. Amendment of Pleadings Court of Chancery Rule 15 governs motions fo r leave to amend

. After a responsive pleading ha s been filed, as it was long ago in this case, a party may a mend its pleading “only by leave of Court or by written consent of the adverse party; and leave
shall be freely given when justice so requires. ” 7 Courts have interpreted this provision to allow for liberal amendment in the interest of resolving cases on t he merits. 8 “A motion to amend may be denied, however, if the amendment would be futile, in the sense that the

4 Ct. Ch. R. 8(a) (“ A pleading

. . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the party deems itself entitled. ”).

5 Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC , 27 A.3d 531, 536 (Del. 2011).

6 Id.

7 Ct. Ch. R. 15(a).

8 See, e.g

. , Thos e Certain Underwriters at Lloyd’ s, London v. Nat ’ l Installment Ins. Servs., Inc. , 2008 WL 2133417, at *7 (Del. Ch. May 21), aff’d , 962 A.2d 916 (Del. 2008); Franklin Balance Sheet Inv. Fund v. Crowley , 2006 WL 3095952, at *3 (Del. Ch. Oct. 19, 2006)

.6

legal insufficiency of the amendment is obvious on its face.” 9 That is, the motion may be denied if the proposed amendment immediately would fa ll to a Rule 12(b)(6) motion to dismiss. 10 L eave to amend also may be denied if there is a showing of substantial prejudice, bad faith, dilatory motive, or repeated failures to cure by prior amendment

. 11 Ultimately, a motion for leave to amend is left to t he sound discretion of the trial court. 12 In the specific circumstances of this case , I also consider Court of Chancery Rule 15(aaa) relevant by analogy

. Plaintiffs filed their motion to amend after conclusion of the briefing and argument on Defendants‟ mo tions for summary judgment. While this procedural posture technically falls outside the scope of Rule 15(aaa), 13 I consider the theory underlying the rule instructive . “ The purpose of the rule is to minimize situations

9 NACCO Indus., Inc. v. Applica Inc. , 2008 WL 2082145, at *1 (Del. Ch. May 7, 2008).

10 See St. James Recreation, LLC v. Rieger Opportunity P’rs, LLC , 2003 WL 22659875, at *5 (Del. Ch. Nov. 5, 2003).

11 See, e.g. , Nat’ l Installment Ins. Servs., Inc. , 20 08 WL 2133417 , at *7; NACCO Indus., Inc , 2008 WL 2082145, at *1 ; Crowley , 2006 WL 3095952, at *3

. 12 See, e.g. , Nat ’ l Installment Ins. Servs., Inc. , 2008 WL 2133417, at *7 (citing Bokat v. Getty Oil Co., 262 A.2d 246, 251 (Del. 1970)); NACCO Indus., Inc. , 2008 WL 2082145, at *1.

13 Cf. Stern v. LF Capital P’rs, LLC , 820 A.2d 1143, 1147 (Del. 2003) (construing Rule 15(aaa) to preclude a plaintiff, after responding to a motion to dismiss, from dismissing the case pursuant to Rule 41(a) and re

- filing the case, despite the fact that Rule 15(aaa) did not mention Rule 41(a) at the time, nor did Rule 41(a) then reference Rule 15(aaa)). Rule 15(aaa) later was amended in conformance with the reasoning of the Stern decision.7

where this Court must adjudicate mul tiple motions to dismiss in the same action.” 14 Here, granting the motion to amend would expand the scope of the issues the parties and
the Court would have to face at trial , not to mention the difficulties it may have created
for Defendants in the final s tages of discovery. The trial in this action will begin on February 6, 2015 . Accordingly, I am reluctant to afford Plaintiffs, who delayed moving to amend until after the conclusion of briefing and argument on motions for summary judgment , the full benef it of the liberal standards generally governing amendment of pleadings , especially when the amendments they seek relate directly to the issues addressed in the summary judgment motions and pose problems in terms of fair notice

. C. Discovery The “purpose of discovery is to advance issue formation, to assist in fact revelation, and to reduce the element of surprise at trial.” 15 Interrogatories are one method of discovery , and parties served with interrogatories must answer them fully and truthfully. 16 Addition ally, Court of Chancery Rule 26(e) requires supplementation of discovery responses in certain instances. As relevant here, Rule 26(e) provides that :

(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to

14 Crowley , 2006 WL 3095952, at *3.

15 Lev

y v. Stern , 687 A.2d 573 (Table), 1996 WL 118160, at *2 (Del. 1996) (citing Buchanan Serv., Inc. v. Crew , 122 A.2d 914 (Del. Super. 1956)).

16 Ct. Ch. R. 33(b)(1) (“ Each interrogatory

. . . shall be answered separately and fully in writing under oath, unle ss it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable .”).8 (A) the identity and location of persons having knowledge of discoverable matters

. . . . (2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. With these concepts in mind, I turn to the merits of Plaintiffs‟ Motion to Amend and Defendants‟ Motion in Limine

. III. ANALYSIS At the outset, I note some of the procedural backdrop in this case. Plaintiffs filed
the ir Complaint on August 5, 2013. Along with the Complaint, Plaintiffs mov ed for a preliminary injunction and for expedited treatment . Although I denied the motion to expedite, I mad e clear to the parties that I intended this action to proceed relatively promptly, 17 and, to that end, that I expected “strict adherence to the requ irements of the Court of Chancery rules.” 18 The initial scheduling order established October 15, 2013 as
the deadline for Plaintiffs to amend the ir Complaint, with trial scheduled for June 17

- 20, 2014. A second scheduling order , granted on March 19, 2014, moved the trial date to August 25

- 28, 2014. A third scheduling order granted on June 5, 2014, again postponed
the trial date , this time to October 20

- 23, 2014. On October 9, being confronted with a

17 Mot. to Expedite Arg. Tr. 72 (Aug. 16, 2013).

18 Id. at 71. During argument on the motion to expedite, I also observed as to Plaintiffs‟ Complaint that the “claims, to my mind, are fairly nebulous.” Id. at 67.9

flurry of pre

- trial motions, including the two motions currently before me, I rescheduled the trial yet again, to February 6

- 13, 2015. Thus , after Plaintiffs originally moved to expedite this matter, after repeated ly rescheduling the trial date, and nearly eleven months
after the relevant deadline for amend in g the Complaint expired , this Court was faced in September and October 2014 with a motion to amend the C omplaint and a related motion
to exclude undisclosed causes of action

. 19
Plaintif fs‟ proposed Amended Complaint, in addition to making several changes in the substantive allegations, sets for th new independent counts for civil conspiracy and aiding and abetting , and adds to each of the breach of contract counts an allegation of breach of the implied covenant of good faith and fair dealing

. In moving to am end,
Plaintiffs also maintained , essentially in the alternative, that an amendment i s
unnecessary here because the claims set forth in the proposed Amended Complaint adequately we re pled in the initial Complaint. 20 Defendants argue that the proposed
amendm ents are futile because they cannot survive a motion to dismiss and also that the Court should deny the amendments in the exercise of its discretion for reasons such as untimeliness. Defendants‟ Motion in L imine to exclude undisclosed causes of action
red oubles their efforts to defeat the Motion to A mend and also seeks to exclude certain

19 I heard argument on these two motions, among others, on October 22, 2014.

20 Pls.‟ Mot. to Am. 4 (“Plaintiffs‟ proposed amend ments simply clarify the claims which plaintiffs have pursued and continue to pursue in connection with this litigation.”).10

evidence , including documents that Defendants assert were produced too late to be
considered at trial. 21
A. The Discovery Record The Complaint alleges three categories of wr ongs by Defendants: (1) undermining Morelli‟s authority and frustrating the Company‟s strategic plans; (2) seizing control of Rancho; and (3) blocking the Company‟s efforts to obtain financing. 22 The Complaint explicitly uses the term “conspiracy” only onc e. 23 The overall tenor of the C omplaint , however, evinces an overarching theory of a conspiracy by Defendants to oust Morelli and take control of Optimis. 24 Paragraph 16, which mentions a conspiracy, illustrates this point: Thus, starting in 2010, just two years into the partnership with

Morelli to which they freely agreed

— and after opting not to exercise their rescission rights to unwind the transaction

— and despite their contractual promise that Morelli would have complete control for seven years, the Ranc ho Defendants decided that, rather than forthrightly raise their concerns with the Board, they would secretly prepare to mount a hostile takeover of the Company. The Rancho Defendants began a campaign to undermine Morelli and his software development stra tegy, recruited Joseph Godges

— a director and employee

21 Aside from the specific holdings in this Memorandum Opinion, I reject Defendants‟ arguments about untimely document production. The most recent rescheduling of the trial has provided Defendants sufficient time to review the disputed categories of documents.

22 Compl. ¶ 3.

23 Id. ¶ 16.

24 The Complaint repeatedly uses phrases such as “secret plan,” “secret plot,” and “coup attempt .” Id. ¶¶ 16, 17, 23

- 25, 27, 30, 32.11 of the Company who Morelli had learned was moonlighting in violation of his employment agreement with the Company and was holding Godges accountable to the Company for his breaches

— to their cause, and e ntered into a secret plot to seize control of OptimisCorp, in breach of their contract with Morelli (and the other stockholders) and in breach of their fiduciary duties to the Company and all of its stockholders. In February 2012, the Rancho Defendants al so enlisted defendant Horne

— who had been involved in a clandesti ne romantic affair with Morelli‟ s ex - wife for several years

— to join their unlawful conspiracy. 25
Thus , a good argument can be made that Defendants were on notice from the early stages
of this litigation that Plaintiffs were alleging a conspiracy of some sort. 26 Counsel for Plaintiffs directly stated as much in June 2014 at the argument on Horne‟s motion to compel. 27 Furthermore , to the extent that the Complaint alleged a conspiracy, it also
all eged aiding and abetting. If the two concepts are not co n terminous in th e corporate context, 28 then aiding and abetting is the narrower of the two and fairly is encompassed within the overarching conspiratorial allegations in the Complaint.

25 Id . ¶ 16.

26 As discussed below, Horne‟s interrogatories show that he understood the Complaint to be alleging some form of conspiracy. Because Defendants coordinated their discovery, I find that all Defendants were on notice.

27 Defs.‟ Mot. to Compel Arg. Tr. 49 (Plaintiffs‟ counsel: “You don‟t have to be an actor in every element of the conspiracy to be liable for all of the harm of the conspiracy. And that‟s exactly the situation which we‟re alleging here.”).

28 See, e.g. , Malpiede v. Townson , 780 A.2d 1075, 1089 n.82 (Del. 2001) (noting overlap between the two theories and collecting cases); Allied Capital Corp. v. GC

- Sun Hldgs., L.P. , 910 A.2d 1020, 1038

- 39 (Del. Ch. 2006).12

The controversy over whether to allow Plaintiffs ‟ proposed amendments to the Complaint relates closely to how the parties cond ucted discovery in this case. T he real

source of contention appears to involve the following questions: (1) Who were the
members of the conspira cy? (2) What were the predicate b ad acts of the conspiracy? and (3) When did the conspiracy terminate , if ever ? The relevant standard in Delaware is notice pleading. Plaintiffs need not plead every fact supporting their case, nor must they plead a legal theory per se . In the context of conspiracy, however, answers to the foregoing questions become vitally important. “ The benefit to a plaintiff of establishing a civil conspiracy claim is that all conspirators will be vicariously liable for the acts of c o conspirators in furtherance of the conspiracy. ” 29 Consequently , both the number and identity of the actors and the duration of the conspiracy dramatically will affect the scope
of this case and the potential liability of D efendants . I therefore address next each of the three questions identified above

.

1. Who are the member s of the alleged conspiracy? The proposed Amended Complaint does not seek to add any additional defendants.
I t does identify, however, several potential co - conspirators who were not fair ly disclosed in the original Complaint or discovery . Beyond the four named Defendants, the original Complaint identified only Joe Godges as another co

- conspirator. Thus, Defendants received adequate notice that Godges was an alleged co - conspirator. The only other individuals identified in the original Complaint are Tina Geller and Terry Doherty. The

29 Allied Capital Corp. , 910 A.2d at 1 036.13

language of the C omplaint is broad enough to suggest that Geller may have been a member of the conspiracy , 30 but Plaintiffs have not pressed that position

. Beyond these specifics, the Complaint includes only vague additional language suggesting that others were, or may have been, involved in some unspecified manner. 31 Discovery enables the par ties to uncover the factual base s for the allegations in a complaint . Contention interrogatories usefully advance this purpose. In this case, b oth sets of Defendants served such interrogatories on Plaintiffs. 32 Plaintiffs responded to the Director Defendants‟ Interrogatories and Horne‟s Interrogatories on January 14, 201 4, and February 1, 2014, respectively. Horne specifically asked that Plaintiffs : “Identify every fact you contend supports your allegations in paragraph 16 of the Verified Complaint,” with specific reference to the conspiracy. Plaintiffs responded by iden tifying George Rohlinger as an additional co

conspirator. Without specifically naming anyone else not mentioned in the Complaint,

30 E.g. , Compl. ¶ 20 (“[T]he Rancho Defendants, Horne and others acting at their direction . . . bribed Geller into cooperating in an investigation against Morelli by offering her a raise and other perquisites.”).

31 E.g. , id. ¶ 17 (“[D]efendants soli cited and indoctrinated key employees

— including several officers who directly reported to Morelli

— and consultants of the Company to oppose Morelli and his initiatives by telling them that the Rancho Defendants were working on a plan to oust him from the Co mpany.”); id. ¶ 20 (“ . . . the Rancho Defendants, Horne and others . . . ”); id. ¶ 22 (“Waite and others contacted certain of the other directors and stockholders . . . and offered them lucrative employment contracts, stock options and other valuable inducements . . . .”).

32 Plaintiffs‟ responses to the Director Defendants‟ Interrogatories and Horne‟s Interrogatories will be cited as “DD.I. Resp. [#]” and “H.I. Resp. [#],” respectively.14

Plaintiffs ‟ response three times used the phrase: “Defendants, individually and working with other employees, consultants, st ockholders, business pa rtners, and third parties

. . . . ” 33 In defending against a claim for conspiracy, few facts are more important than the identity of the members of the conspiracy. Yet, Plaintiffs‟ response to H orne‟s Interrogatory 5 fails to mention anyone new except Rohlinger. Based on the position
Plaintiffs took in opposing Defendants‟ motion for summary judgment

— namely , their contention that the conspiracy involved at least three other individuals

— it is difficult to see how Plaintiffs‟ a nswer “fully” 34 responded to the interrogatory, which asked for “every fact.” Through their proposed Amended Complaint , Plaintiffs seek to include Helene Fearon, Stephen Levine, Geo rge Rohlinger, and Jeanine Gunn as co - conspirators, in
addition to the ind ividuals listed in the original Complaint. Fearon, Levine, and Gunn are all new additions, not fairly indentified as co

- conspirators during discovery. I conclude , therefore, that Plaintiffs should not be permitted to amend their Complaint to allege, or t o assert at trial on the basis of the original Complaint , that these individuals a re co conspirators. In that regard, I find unpersuasive Plaintiffs ‟ argument that Fearon, Levine, and Gunn were fairly disclosed as co

- conspirators because their names were mentioned elsewhere in the discovery record. For instance, Fearon and Gunn were identified, along

33 H.I. Resp. 5; see also DD.I. Resp. 1.

34 Ct. Ch. R. 33(b)(1).15

with fifty

- two other people or entities, as individuals with knowledge of the allegations in the Complaint. 35 But, someone having knowledge of those allegat ions is not necessarily

a co - conspirator. Morelli, for example, is identifie d as a knowledgeable individual; yet, no one would contend that he was a member of the alleged conspiracy. Levine was not included in the list of persons with relevant knowledge , but he was listed as one of twenty

- four or more employees who we re “solicited and indoctrinated ” by Defendants. 36 There is no basis in the existing record for inferring that everyone identified as an employee who was “solicited and indoctrinated” was a me mber of the conspiracy. A plaintiff claiming a conspiracy must prove : “ (1) the existence of a confederation or combination of two or more persons; (2) that an unlawful act was done in furtherance of the conspiracy; and (3) that the conspirators caused ac tual damage to the plaintiff.” 37
I t does not follow , as a matter of fact or logic, that an employee who was “solicited and indoctrinated” necessarily agreed, for example, to be part of a conspiracy to achieve an unlawful purpose. Plaintiffs knew how to na me different sets of individuals in response
to different interrogatories ; they cannot pick and choose among those lists at this late stage in the proceeding to expand the scope of their claim for conspiracy by adding new

35 DD.I. Resp. 14; H.I. Resp. 36.

36 H.I. Resp. 6. Plaintiffs‟ answer to Horne‟s Interrogatory 6 also cross

- references their response to Horne‟s Interrogatory 5.

37 Allied Capital Corp. , 910 A.2d at 1036.16

co - conspirators

. 38 This is espe cially true where nothing in the discovery indicates that a

new co - conspirator engaged in an allegedly wrongful act beyond the acts in which one or
more of the co

- conspirators named in the original Complaint allegedly engaged. 2. What bad acts allegedly were committed as part of the conspiracy? Identifying the bad acts that were committed as part of the conspiracy remains difficult. The record is murky as to exactly what purported wrongs underlie several of Plaintiffs‟ theories. The Complaint identified the three categories of wrongs already mentioned. Plaintiffs‟ responses to Defendants‟ interrogatories further fleshed out some of the allegations in the Complaint. Both sets of Defendants asked specifically for an
identification of the contracts or business relationships with which Defendants allegedly interfered. Plaintiffs listed, “among other things,” eleven contracts or business relationships , and stated that “[o]ther instances of interference may be identified as discovery progresses

. ” 39 In the circums tances of this case , Defendants contend that they did not receive fair notice in discovery of certain acts recently identified in Plaintiffs‟ opposition to summary judgment

.

38 Compare H.I. Resp. 6 (name every key employee D efendants solicited and indoctrinated: “employees include” twenty

- four people), with H.I. Resp. 13 (name everyone comprising the “others” referenced in ¶ 20 of the Complaint as “acting at the[] direction [of the Director Defendants]” in connection with Gel ler‟s claim: listing seven people), with H.I. Resp. 18 (name everyone comprising the “others” referenced in ¶ 22 of the Complaint as having acted with Defendant Waite in connection with the alleged vote buying scheme: listing “at least” six people).

39 DD. I. Resp. 2; H.I. Resp. 20.17

In their effort to defeat summary judgment as to the tortious interference claims , Plaint iffs pointed to the following items or entities of relevance here 40 : (1) the Fearon
R escission; (2) Bank of the I nternet (“BofI”) ; (3) P hysical T herapy P rovider N etwork (“PTPN”) ; (4) the Distance Swim Challenge; (5) solicitation of Rancho‟s referral contracts by the Director Defendants, as employees of All

- Star Physical Therapy ; and (6) improper use of Rancho‟s confidential information

. I find that Plaintiffs adequately
identified t he alleged tortious i nterference with BofI, PTPN, and the Distance Sw im Challenge in their discovery responses. Therefore, I need not discuss those matters
further . Any issues relating to continued interference with Rancho are addressed in Section III.A.3 infra

. The Fearon Rescission 41 was not identified in the original Co mplaint or in the interrogatories as a contract or business relationship with which Defendants interfered. The Fearon Rescission was identified , however, by Morelli during the first day of his deposition on April 29, 2014, as one of three rescissions for which Defendants allegedly are responsible

. 42 It is a close call whether the relevant excerpt from Morelli‟s deposition placed Defendants on notice that Plaintiffs would be pursuing tortious interference claims

40 This list excludes events relating to the alleged “coup,” such as the Geller sexual harassment investigation, the contested renewal of the employment agreements by the Directors Defendants, and the Stockholders Agreement. T hose matters have been in this case from the beginning.

41 See supra note 2.

42 The other rescissions were the Sovereign rescission and the Schreir PT rescission. Morelli Dep. 162

- 73, 249

- 50.18

relating to the Fearon Rescission . Plaintiff s cited no other portion of the record as disclosing the Fearon Rescission. The Company‟s other deponents appear not to have alluded to the Fearon
Rescission at all . Indeed, the depositions of Laurent O‟Shea undermine Plaintiffs‟ position. O‟Shea was t he Company‟s 30(b)(6) witness and a member of Optimis‟s board‟s independent committee . Defendants deposed him on two days: May 1 and July
30 , 2014 . On the second day, O‟Shea was asked whether, other than the items identified in the Company‟s response to the Director Defendants‟ Interrogatory 2, he was “aware of any business or contractual relationship with which [the Director Defendants] have interfered.” 43 O‟Shea could not recall anything beyond what was listed in the interrogatories , with the exception of a company called WorkWell, and O‟Shea knew almost nothing about what happened with WorkWell. 44 This answer by Optimis‟s 30(b)(6) witness is telling in at least two respects. First, the Company settled with Fearon

an d Levine on May 2 and May 11 , 2014, r espectively . A ccordingly, the Company must have been aware of the Fearon Rescission by the second day of O‟Shea‟s deposition

. Second, on the first day of his deposition, O‟Shea was asked whether he had come into possession of any information that would “ alter or change the answers given in” response

43 O‟Shea Dep. 346

- 47.

44 Id. at 349

- 50, 355

- 56.19

to Horne‟s Interrogatories, and he stated that the Company had received a lot of information that “would add to” but not change the Company‟s answers. 45
When asked about the various instances of tortious inte rference, O‟Shea stated that
most of the interference occurred before he joined the Optimis board and that the most knowledgeable person would be Morelli. T he tortious interference claims are a significant p art of this case. D espite admitting a general l ack of knowledge about the
instances o f alleged tortious interference and despite identifying Morelli as the person who would know the most about the tortious interference claims, O‟Shea did not discuss
the se items with Morelli before being deposed or, app arently, otherwise seek to inform
himself as to those matters

. 46 Having designated O‟Shea as its 30(b)(6) witness, Optimis had a duty to prepare him appropriately. 47 To the extent O‟Shea or Optimis failed to do so, Optimis is responsible for the consequenc es of his testimony and apparent lack of preparation. 48

45 Id. at 75

. 46 Id. at 349.

47 See generally D ONALD J. W OLFE , J R

. & M ICHAEL A. P ITTENGER , C ORPORATE AND C OMMERCIAL P RACTICE IN THE D ELAWARE C OURT OF C HANCERY § 6.06[c] (2008) (describing process, procedure, and responsibilities involved in Rule 30(b)(6) depositions ). See also Fitzgerald v. Cantor , 1999 WL 252748, at *3 (Del. Ch. Apr. 5, 1999) (“ In the course of preparation

. . . the organization must ensure that before testifying the witness [is] aware of the organization‟ s full knowledge of the matters on which [h e] will testify and any relevant information reasonably available to the organization.”).

48 Ct. Ch. R. 30(b)(6). See generally Highland Select Equity Fund, L.P. v. Motient Corp. , 906 A.2d 156, 166 & nn.47

- 48 (Del. Ch. 2006) (describing the expectations20

Brian Wing also is an Optimis Director and was deposed on July 21, 2014 . He serves on both the board‟s independent committee and its special committee. 49 Although not entirely clear from the depositio ns, the special committee apparently was responsible for dealing with the earlier action filed under 8 Del. C. § 225, which involved a number of the same parties to this action. 50 T he independent committee , on the other hand, deals with subject matter rele vant to this lawsuit. Wing also verified the Complaint in this
action

. As such, one would expect Wing to be a knowledgeable witness. Generally, however, he could not answer a number of relevant questions and appears to have received a substantial amount of his information solely from discussions with counsel , as to which Plaintiffs claimed privilege

. 51 Having considered all the circumstances, I have decided to exclude the Fearon Rescission from this case. Plaintiffs were aware of the Fearon Rescission wh en Morelli testified about it on April 29, 2014 , at the absolute latest

. Plaintiffs also settled with Fearon and Levine shortly thereafter. Notwithstanding these facts, O‟Shea could not provide much, if any, relevant information about the tortious interf erence claims or

o f a Rule 30(b)(6) witness and noting that a “ designee under Rule 30(b)(6) is expected to inform himself as to the entity‟ s knowledge, and to testify t o the limits of the designation”).

49 O‟Shea Dep. 260

- 61; Wing Dep. 98.

50 Morelli v. Waite , Civ. A. No. 8 001

- VCP.

51 For example, Wing could not identify any facts about Paragraphs 16, 17, or 23 of the Complaint beyond his communications with counsel, as to which Optimis‟s counsel directed him not to answer on privilege or work product grounds. Wing Dep. 64

- 68, 80.21

identify the Fearon Rescission as a relevant contract in his capacity as a Rule 30(b)(6) witness. 52 A ny relevant knowledge Wing may have had apparently came from the lawyers and was not disclosed in his deposition

. In addition, Plaintiffs did not list t he
Fearon Rescission as a n item of tortious interference in their interrogatory responses or supplement those responses in that regard before they responded to Defendants ‟ motion
for summary judgment in late August 2014

. Under these circums tances, I find that
Defendants did not receive fair notice that Plaintiffs were pursuing a claim based on the Fearon Rescission. Plaintiffs‟ effective concealment of the settlements Optimis entered
into with Fearon and Levine in May 2014 , and the ex tent o f Fearon‟s apparent first hand knowledge of the Fearon Rescission reflected in her belated affidavit, further support s excluding th at incident from this case.

3. What is the temporal scope of the alleged conspiracy? Defendants, in their Motion in L imine and at argument, vigor ously argued against allowing claims t hat post

- date Defendants‟ employment with Optimis , which had ended

52 See Highland Select Equity Fund , 906 A.2d at 166 n.47 (“„[P] roducing a person who knows nothing about the subject matter of the litigation is the functional equivalent of having spurned the deposition altogether. Consequently, Rule 30(b)(6) can be violated when a corporate party literally sends a human being to the deposition but the person is unequipped to participate meaningfully in the deposition. ‟ ” ) (quoting J AMES W M

. M OORE ET AL ., M OORE ‟ S F EDERAL P RACTICE 30.72 (3d ed. 2006)). O‟Shea may ha ve been able to participate meaningfully in other parts of his 30(b)(6) deposition, but that issue is not before me. The problem here stems primarily from his testimony regarding the tortious interference claims.22

by June 25, 2013

. 53 I conclude, however, that the original Complaint adequately alleged ongoing interference with the Company and that P laintiffs reiterated that position in their responses to Defendants‟ i nterr ogatories. Notwithstanding this conclusion, I grant Defendants‟ Motion in Limine as it relates to striking the affidavits of Fearon, Levine, and Catherine Gentry for purposes of D efendants ‟ motion for summary judgment on the ground that they amounted to unfair surprise and were not consistent with the rules of discovery or this Court‟s scheduling orders. 54 Plaintiffs produced all three of the affidavits challenged in the Motion in L imine

— Fearon, Levine, and Gentry

— well after
the August 1, 2014 cutoff for fact discovery. 55 The Complaint repeatedly references ongoing harm to Optimis . For example, Paragraph 5 begins: “Therefore, in order to restrain defendants from continuing to harm

53 I note, for completeness, that Defendan ts appear to have accepted as fairly within this case a brief period in May and June 2013 after Horne was terminated during which the Director Defendants continued their employment.

54 Gentry is the Director of Marketing and Network Operations for Rancho , a company related to Optimis. Thus, she appears to have been under the control of Optimis at all relevant times. Nevertheless, Gentry was not identified in Plaintiffs‟ interrogatories as a person with knowledge of matters asserted in the Complaint. Se e infra notes 62

- 64 and accompanying text.

55 A scheduling order is an order of the Court that serves important purposes. IQ Hldgs., Inc. v. Am. Commercial Lines Inc. , 2012 WL 3877790, at *2 (Del. Ch. Aug. 30, 2012) (“ Scheduling orders and discovery cutof fs further these important purposes and policies [of discovery] by ensuring that parties provide discovery in a timely fashion, thereby avoiding trial by surprise and the prejudice that results from belated disclosure. ”).23

th e C ompany . . . ” 56 L ater in the same sentence , Plaintiffs request that the Court “restrain any further misconduct by ” Defendants

. 57 Addi tionally, the Complaint includes three
separa t e counts for injunctive relief

— Counts I, III, and V

— request ing that I enjo in further breaches of fiduciary duty, breaches of the Stockholders Agreement, and tortious
interference , respectively

. As to Count I , I note that neither Horne nor the Director Defendants continued to work for Optimis in a fiduciary capacity during the pendency of this lawsuit . As such, the only basis for Count I appears to be a theory based on some sort of continuing wrong to Optimis based on an action taken by one or more of the named Defendants while employed . Here, Count I seems premised on alleged unfair competition b y the Director
Defendants based on confidential information they obtained while still employed at
Rancho and took with them, or, at least, remembered and ultimately misused after they
left Rancho

. 58 Horne‟s Interrogatory 32 specificall y asked whether breaches of fiduciary duty by Horne were ongoing when the Complaint was filed and whether those alleged
breaches continue d as of the date of Plaintiffs‟ response. Plaintiffs responded that breaches were ongoing and cited “Defendants‟ ongoi ng efforts to interfere with the

56 Compl. ¶ 5.

57 Id.

58 See Trito n Constr. Co. v. E. Shore Elec. Servs., Inc. , 2009 WL 1387115, at *15 (Del. Ch. May 18, 2009) (“ An agent has a duty not to use or communicate confidential information of the principal for the agent‟ s own purpo ses or those of a third party. This duty includ es a prohibit ion on the use of the principal‟ s confidential information in competition with the principal. ”) (footnote omitted).24

company‟s business and the efforts of OptimisCorp to obtain financing and settle the false claims with Geller.” 59 Similarly, Count III requests an injunction for continuing breaches of the Stockholders Agreement , and Count V asks the Court to enjoin alleged continuing tortious interference. Overall , the Complaint makes clear that Plaintiffs seek relief for ongoing wrongs. The depositions also included questions related to any evidence of continuing violations by Defendants

. 60 On the second day of Morelli‟s deposition, for example , he

was asked : “What, if any, specific instances of interference occurred after [the Director Defendants] were no longer officers or directors of OpimisCorp, or employees?” 61 Morelli responded with a laundry list of interference by the Director Defendants relating

to practically everyone involve d with Optimis or Rancho. Thus , b ased on the Complaint, the interrogatories, and the depositions, I reject Defendants ‟ argument that they did not
receive ade quate notice that Plaintiffs are, and have been, alleging wrongs by Defendants that post

- dat e their employment with Optimis or Rancho. The Gentry Affidavit is another matter entirely. Plaintiffs did not identify Gentry in discovery as a person knowledge able about the matters asserted in the Complaint. 62 Unlike Levine, she is not listed anywh ere else in the interrogatory responses either . In

59 H.I. Resp. 32.

60 E.g. , Morelli Dep. 200

- 13, 288

- 99; O‟Shea Dep. 144

- 45.

61 Morelli Dep. 479.

62 DD.I. Resp. 14.25

fact, Gentry‟s name surfaces only a handful of times in the depositions , all in the context
of a passing reference to her position as the D irector of M arketing

. 63 Defendants otherwise were not appris ed of the fact that Gentry was a potential witness with relevant knowledge

. Based on the evidence they belatedly attempted to introduce through Gentry‟s affidavit, I find that P laintiffs failed to satisfy their obligation seasonably to supplement their interrogatory responses under Rule 26(e)(1)(A)

. 64 As a sanction for that
failure , the Gentry affidavit will be stricken from the record and Plaintiffs may be precluded from calling Gentry as a witness at trial.

B. Additional Factors Influencing This Decision 1. It remains impossible to determine who all the alleged member s of the conspiracy are . As previously mentioned, the number and identity of the members of a conspiracy dramatically affect the scope and mechanics of a case. Between the Complaint and their interrogatory responses, Plaintiffs fa irly identified six members of the alleged conspiracy
here : the named Defendants (John Waite, William Atkins, Gregory Smith, and William Horne) , George Rohlinger, and Joe Godges. The proposed Amended Complaint seeks to
add as co - conspirators at least Helene Fearon, Stephen Levine, and Jeanine Gunn. Granting the amendment , therefore, would make each of the named Defendants potentially liable for the actions of these three new actors whether or not any of the

63 Atkins Dep. 84; Kreille Dep. 36; Waite Dep. 298, 331, 486.

64 Ct. Ch. R. 26(e)(1)(A) (“ A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of d iscoverable matters . . . .”).26

named Defendants was involved in those actions

. M oreover , if I were to grant the motion to amend, it still would not be clear who else allegedly is a member of the conspiracy , because the pr oposed Amended Complaint repeatedly refers generally to defendants “and
their co

- conspirators,” and to the latter category as including “others

. ” In the proposed Amended Complaint, t he phrase “and others” appears at least six times. 65 Most troubling are the instances alleging acts in furtherance of the alleged conspiracy and naming Defendants, the new actors, and then including the phrase “and others,” 66 or some similar variant. 67 Plaintiffs‟ proposed amendments would leave open the possibility of their a dding new co

- conspirators even after the trial date already has been rescheduled three times. Plaintiffs‟ witnesses have been no more inf or m ative in
terms of pinning down the alleged participants in the conspiracy. M orelli identified sixteen potential co - conspirators

. 68 O‟Shea made a blanket accusation with virtually no supporting details that all twenty

- four individuals listed in Plaintiffs‟ response to H orne‟s Interrogatory 6 were members of the conspiracy, in addition to the named Defendants. 69

65 Proposed Am. Compl. ¶¶ 4, 17, 20, 22, 64, 68.

66 Id. ¶ 17 (“They

— along with Fearon, Levine, Rohlinger, Gunn, Godges and others . . .”).

67 Id. ¶ 18 (“Waite and his co

- conspirators . . .”); id. ¶ 20 (“ . . . defendants and their co - conspirators . . .”).

68 Morelli Dep. 14

- 18, 29

- 35, 48

- 49, 150

- 51 (listing Defendants, Godges, Geller, Laura Brys, Gunn, Jessica Eastman, Doherty, James Lynch, Chuck Speraza, Ashraf Abdelhamid, Robert Johnson, Rohlinger, and Robert Wilbanks).

69 O ‟Shea Dep. 80.27

In sum, Defendants face a proposed eleventh

- hour Amended Complaint asserting a conspiracy composed of at least nine member s and the possibility of “others,” sworn
statements by Morelli as to a sixteen

- member conspiracy, and conclusory deposition testimony from O‟ Shea as to a twenty

- eight

- member conspiracy. At this late stage , it is
unreasonable and inexcusable that the conspiracy remains so amorphous and ill

- defined.
I conc lud e , therefore, that granting Plaintiffs‟ motion to amend would be highly prejudicial to Defendants and deprive them and this Court of the ability to try this case in an orderly and fair way

. 70 For example, Defendants might assert new counterclaims in conjunction with their answer s to an amended complaint. The timing and other
circumstances t hat gave rise to Plaintiffs‟ Motion to Amend and Defendants‟ Motion in
Limine also persuade me that it would be in appropriate and in equitable to address these problems by entertaining the possibility of yet another postponement of the trial. 2. Plaintiffs’ ar guments that “ Defendants knew all along ” are unconvincing. Plaintiffs argue that Defendants can claim no unfair surprise as to the matters currently before me . According to Plaintiffs, because this was Defendants‟ conspiracy, they knew all along the iden tities and actions of their co

- conspirators. This argument is circular and presumes what Plaintiffs must prove at trial. The burden is on Plaintiffs to

70 The proposed Amended Complaint also alleges breaches of the implied covenant of good faith and fair dealing. I will permit those claims to be included in the trial of this matter. As noted during the September 8, 2014 argument on the mo tions for summary judgment, I consider the allegations regarding a breach of the implied covenant to be fairly within the scope of the original Complaint. Mots. for Summ. J. Arg. Tr. 51. Accordingly, an amendment to the Complaint is not required on that issue.28

support their claims and prove them by a preponderance of the evidence; the burden is
not on D efendant s to prove they were not members of a conspiracy. Additionally, Plaintiffs possess, and have possessed throughout this case, a significant amount of the information at issue, largely because of the imaging of Optimis‟s computers that was
done in connectio n with the Section 225 Action. 71 Thus , I reject Plaintiffs‟ argument that Defendants have suffered no prejudice because they allegedly knew the disputed
information all along. To the cont rary, Plaintiffs must prove at trial the existence and composition o f the alleged conspiracy , and they were required to provide Defendants fair notice of the nature and scope of their conspiracy claims during the pre

- trial proceedings

.

3. Plaintiffs’ “supplementation” was untimely. On September 5 , 2014 , Plaintiffs “suppleme nted” the ir interrogatory responses by incorporating all information raised in their summary judgment opposition briefs and supporting documents

. 72 Tho se supporting documents include the Fearon, Levine, and Gentry a ffidavits. As noted, Rule 26(e) requires parties “seasonably” to amend or supplement interrogatory responses in certain specified circumstances . Delaware case law provides sparse guidance on the meaning of the term “seasonably.” Black‟s Law

71 See supra note 50.

72 Defs.‟ Mot. to Exclude Untimely Evidence and Previously Undisclosed Causes of Action at Trial, Exs. C

- D (“Plaintiffs amend and supplement their objections and responses with the information contained in Plaintiffs‟ Brief in Opposition to [the Director Defendants‟] Motion for Summary Judgment . . . Plaintiffs‟ Brief in Opposition to Defendant William Horne‟s Motion for Summary Judgment, and all documents filed therewith.”).29

Dictionary defines “seasonable” as: “Within the time agreed on; within a reasonable time.” 73 Here, the parties did not agree on a time frame for supplementation. Thus, I interpret “seasonably” to mean within a reasonable time. Court of Chancery Rule 26(e)(2) requires amendment to a prior discovery
response if “the party knows that the response was incorrect when made” or “ the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. ” Hor ne‟s Interrogatory 5 requested that Plaintiffs: “Identify every fact that you contend supports your allegations in paragraph 16 of the Verified Complaint that the [Director] Defendants „began a campaign to undermine Morelli and his software development str ategy [and that] the [Director] Defendants also enlisted defendant Horne . . . to join their unlawful conspiracy.‟” At the argument on the Motion to A mend and various motions in limine on October 22, 2014, Plaintiffs pointed to this interrogatory as evid ence that Defendants understood that the Complaint allege d a conspiracy. 74 Plaintiffs‟ lengthy response to Horne‟s Interrogatory 5 described generally a
broad

- ranging conspiracy involving other unnamed individuals. Besides the named Defendants, it identi fied only Rohlinger specifically

. Throughout this Memorandum Opinion, I have stressed the importance of timely identifying co - conspirators, because the

73 B LACK ‟ S L AW D ICTIONARY 1470 (9th ed. 2009).

74 Mot . to Amend Arg. Tr. 30 (“That was his questioning. He wanted to know what were the facts.”). As noted previously, Paragraph 16 of the Complaint contains the only use of the term “conspiracy.”30

addition of a new co

- conspirator adds potential liability for all other co

- conspirators for
actions tak en by the new co

- conspirator in furtherance of the conspiracy. Depending on when Plaintiffs came into possession of the information specifically identifying the other alleged co

- conspirators addressed in this Memorandum Opinion , their response either

was “incorrect when made” or else became no longer correct. Accordingly, Plaintiffs had a duty to seasonably supplement their interrogatory responses to disclose the identities of
all co

- conspirators once Plaintiffs became aware of the identity of additional purported

co - conspirators. Because of the effect on liability of adding co

- conspirators, I find that Plaintiffs‟ failure to supplement their interrogator y responses with the identities of the other alleged co

- conspirators amounted in substance to a “knowi ng concealment” within the meaning of Rule 26(e)(2)

. Plaintiffs knew about the involvement of Fearon and Levine by at least April 2014, and settled with them in May 2014. From at least that point onward, 75 Plaintiffs had a duty to supplement their i nterrogatory responses within a reasonable time. Pursuant to the third scheduling o rder entered on June 5, 2014 , fact discovery closed on August 1, 201 4. There is no bright

- line rule as to when supplementation is seasonable.

75 Plaintiffs may have been aware of Fearon and Levine‟s alleg ed co

- conspirator status much earlier. The Fearon Rescission occurred in December 2012. As Plaintiffs repeatedly emphasized, Morelli noted the Fearon Rescission in his April 29, 2014 deposition, several days before Optimis settled with Fearon. In the ca se of Plaintiffs‟ settlement with Tina Geller, another source of controversy in this case, the negotiations appear to have lasted from roughly May 30, 2013, until December 2, 2013. Even assuming the Company‟s negotiations with Fearon and Levine were compl eted much more quickly, I conclude that Plaintiffs had a duty to supplement promptly after the May 2014 settlements.31

Given the crucial manner in which c onspiracy law affects liability and the likely impact of adding new co

- conspirators on the scope of discovery, however, Plaintiffs had to have supplemented their interrogatory responses before the close of discovery to meet the “seasonably ” requirem ent

. Three full months of discovery remained after the May 2014
settlements

. Wherever the outer limits of seasonable supplementation lay, Plaintiffs‟ September 5 supplementation falls significantly outside of those bounds. I consider the Fearon, Levine, and Gentry affidavits equally untimely to the extent Plaintiffs might rely on them or their summary judgment briefs as the equivalent of the required supplementation

. 4. Summary The orig inal Complaint adequately placed Defendants on notice of the existence of an alleged conspiracy , wrongs that could amount to aiding and abetting , and breach of contract claims that would include a breach of the implied covenant of good faith and fair dealing . Those claims a re in this case. During discovery , however, Plaint iffs did not identify adequately the members of the conspiracy or all of the wrongful acts committed as part of the conspiracy. Based on Plaintiffs ‟ failure seasonably to supplement their discovery responses and undue delay in revealing additional alleged members of the conspiracy, the substantial prejudice those actions have caused to Defendants in terms of time, expense, inconvenience , and the difficulty in preparing for trial, and the prejudice Defendants will co ntinue to suffer if I grant Plaintiffs le ave to file their proposed Amended Complaint , I hold as follows:32

(1) The conspiracy , as originally pled and fairly disclosed in discovery , is
limited in terms of co

- conspirators to John Waite, William Atkins, Gregory Smith, William Horne, Joe Godges , and Georg e Rohlinger. Any wrongful acts proven to have been committed by one or more of those co

- conspirators in furtherance of the conspiracy may be attributed to the four named Defendants; (2) Plaintiffs may not add additional co

- conspirators to the alleged conspira cy or seek to impose liability on Defendants on a theory of conspiracy or aiding and abetting for any acts that are not currently disclosed in the record of this action or that do not involve actions of one or more of the alleged co

- conspirators identified in Paragraph (1) above; (3) Any and all claims based on t he Fearon Rescission are excluded from this

case; (4) Plaintiffs adequately have pled and disclosed c laims relating to Defendants‟
conduct after their employment with Optimis ended to the extent indicated i n this Memorandum Opinion; and (5) Catherine Gentry‟s affidavit is stricken from the record and, because of Plaintiffs‟ failure to comply with the discovery rules with regard to Gentry , Plaintiffs may be prohibited from calling her as a witness at trial

.33 IV. C ONCLUSION For the foregoing reasons, Plaintiffs‟ Motion to Amend is denied and Defendants‟
Motion in L imine is granted in part and denied in part to the extent indicated in this Memorandum Opinion

. IT IS SO ORDERED.