IN the COURT of CHANCERY of the STATE of DELAWARE in RE WEWORK LITIGATION ) ) Consolidated C.A. No. 2020-0258-AGB the WE COMPAN

EFiled: Aug 11 2020 09:57AM EDT Transaction ID 65838297 Case No. 2020-0258-AGB IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE WEWORK LITIGATION ) Consolidated ) C.A. No. 2020-0258-AGB

THE WE COMPANY’S OPENING BRIEF IN SUPPORT OF ITS OBJECTIONS TO THE SPECIAL COMMITTEE’S REQUESTED DISCOVERY IN CONNECTION WITH THE WE COMPANY’S MOTION FOR LEAVE TO DISMISS THE COMPLAINT PURSUANT TO COURT OF CHANCERY RULE 41(a)

Robert S. Saunders (ID No. 3027) OF COUNSEL: Sarah R. Martin (ID No. 5230) SKADDEN, ARPS, SLATE, George A. Zimmerman MEAGHER & FLOM LLP SKADDEN, ARPS, SLATE, One Rodney Square, P.O. Box 636 MEAGHER & FLOM LLP Wilmington, Delaware 19899-0636 One Manhattan West Tel.: (302) 651-3000 New York, New York 10001 Tel.: (212) 735-3000 Attorneys for The We Company

DATED: August 11, 2020

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ii

PRELIMINARY STATEMENT ...... 1

BACKGROUND ...... 3

A. The Special Committee And The MTA...... 3

B. The Competing Letters...... 4

C. The Special Committee Seeks Documents, And The Company Asserts Privilege...... 6

D. The Status Quo Motion...... 8

E. The New Committee And Its Determinations...... 8

ARGUMENT ...... 12

I. THE SPECIAL COMMITTEE IS NOT ENTITLED TO DISCOVERY OF PRIVILEGED COMMUNICATIONS REGARDING THE COMPETING LETTERS AND THE NEW COMMITTEE...... 12

A. The Special Committee Established Itself As Adverse To The Company With Respect To The Competing Letters And The New Committee...... 12

B. Production Of Privileged Communications To Both The Special Committee And SoftBank Would Exacerbate, Not Solve, The Problem...... 17

II. DEPOSITIONS BEYOND THOSE OF THE NEW COMMITTEE MEMBERS WOULD BE INAPPROPRIATE...... 18

CONCLUSION ...... 22

TABLE OF AUTHORITIES

CASES PAGE(S) Abbey v. Computer & Communications Technology Corp., 1983 WL 18005 (Del. Ch. Apr. 13, 1983) ...... 20

In re CBS Corp. Litig., 2018 WL 3414163 (Del. Ch. July 13, 2018) ...... 14, 16

Kalisman v. Friedman, 2013 WL 1668205 (Del. Ch. Apr. 17, 2013) ...... 1, 12, 14, 15

Kastis v. Carter, C.A. No. 8657-CB (Del. Ch. Nov. 17, 2014) (TRANSCRIPT) ...... 19

Moyer v. Moyer, 602 A.2d 68 (Del. 1992) ...... 17, 18

SBC Interactive, Inc. v. Corporate Media Partners, 1997 WL 770715 (Del. Ch. Dec. 9, 1997) ...... passim

PRELIMINARY STATEMENT Delaware law is clear that a director may not access the company’s privileged information when, as here, that “director’s interests come into conflict with the interests of the corporation on a given issue.” SBC Interactive, Inc. v.

Corporate Media Partners, 1997 WL 770715, at *6 (Del. Ch. Dec. 9, 1997). The rationale for this rule is equally clear: “once sufficient adversity exists between the director and the corporation,” that director “could no longer have a reasonable expectation that he was a client of the board’s counsel.” Kalisman v. Friedman,

2013 WL 1668205, at *5 (Del. Ch. Apr. 17, 2013).

These undisputed principles drive the outcome here. On April 17,

SoftBank wrote a letter to the Board of the We Company raising critical questions about whether the Special Committee has authority to maintain this lawsuit in the name of the Company, whether its members suffer from a disqualifying conflict of interest, and whether its pursuit of this litigation using the Company’s funds was in the Company’s best interests – as opposed to its members’ own pecuniary interests in tendering into the SoftBank tender offer. It is undeniable that the Special

Committee was and is adverse to the Company on the issues raised by SoftBank’s letter. Indeed, the Special Committee confirmed its adversity even before the

Company took a position on these questions by sending an openly adversarial letter from its own separate counsel, threatening to sue the Board and the Company if

they took any steps to limit the Special Committee’s alleged authority to maintain its lawsuit. That is the definition of “adversity.”

The Special Committee then ratcheted up its adversity to the Board and the Company by seeking a Status Quo Order enjoining them from appointing a disinterested and independent New Committee to address the issues raised by the letters. Under these circumstances, the separately represented Special Committee

“could no longer have a reasonable expectation that [it] was a client” of the

Company’s counsel on these issues, and could not reasonably have expected that

Company management would be unable to obtain privileged legal advice from its in-house and outside counsel.

As a result, and for the reasons set forth more fully below, the Special

Committee is not now entitled to document and deposition discovery of privileged communications involving management, in-house counsel and outside counsel.

BACKGROUND

A. The Special Committee And The MTA. In October 2019, The We Company (“WeWork,” or the “Company”), facing significant liquidity concerns, assessed various strategic options. As part of that process, SoftBank Group (“SBG” or “SoftBank”) made a financing proposal.

That proposal involved various changes to the Company’s governance and ownership that would result in Adam Neumann no longer controlling WeWork.

Because the SoftBank proposal provided benefits unique to Mr. Neumann, a special committee (the “Special Committee”) of the Company’s board of directors

(the “Board”), comprised of Bruce Dunlevie and Lew Frankfort, was formed.

(Dkt. 204, Ex. D (“Report”) at 6-8)

SoftBank’s financing ultimately took the form of the Master

Transaction Agreement (the “MTA”) at issue in this litigation. Throughout the

MTA negotiations, the Special Committee was represented by its own counsel,

Wilson Sonsini Goodrich & Rosati (“WSGR”). SoftBank was also represented by its own counsel. Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”), which has historically served as outside corporate counsel for the Company, served as outside Company counsel.

One aspect of the MTA was a tender offer made by SoftBank to other stockholders. On April 2, 2020, SoftBank informed the Company that it would not

consummate the tender offer. On April 7, 2020, the Special Committee, through its counsel at WSGR, instituted this litigation – purportedly in the name of the

Company – by filing a complaint against SoftBank.

B. The Competing Letters. On April 17, 2020, SoftBank sent a letter to the Board, including the members of the Special Committee. (Exhibit 1, the “SoftBank Letter”) That letter asserted that the Special Committee lacked authority to sue in the name of the

Company. It also stated that “because of their conflicts related to the tender offer,

[the Special Committee members] are not the appropriate directors to prosecute a lawsuit on behalf of WeWork. Each of them faces material, disabling conflicts between their personal financial desire to reduce their stake in WeWork by selling their shares to SBG and the separate interests of WeWork, which gains nothing if

SBG purchases shares from third parties.” (SoftBank Letter at 1) The letter also asserted that “[t]here is no need for WeWork to allow its cash reserves to be used to finance an expensive lawsuit intended to generate material personal benefits for the Special Committee directors and the funds they control.” (Id.)

On April 18, the Special Committee met telephonically. Graham

Robinson of Skadden was invited to join the call, and informed the Special

Committee at the outset that he and Skadden would be advising WeWork regarding the issues raised in the SoftBank Letter. Mr. Robinson reminded the

Special Committee that he represented the Company, not the Special Committee.

The Special Committee then asked Mr. Robinson to leave the meeting, and he did.

Upon receiving the SoftBank Letter, the Special Committee did not respond as though it considered itself to be clients of the Company’s in-house or outside counsel with respect to the issues raised in it. The Special Committee did not seek advice or consult with in-house counsel or Skadden about the SoftBank

Letter. Rather, on April 20, the Special Committee caused its counsel at WSGR to send a response to the SoftBank Letter, not to SoftBank, but to the Board. (Exhibit

2, the “Special Committee Letter,” and with the SoftBank Letter, the “Competing

Letters”) In its letter, the Special Committee threatened that if the “Company’s

Board follow[ed] the ‘recommendations’ set forth in [the SoftBank Letter], they would risk subjecting themselves and the Company to considerable liability as well as other types of damage.” (Special Committee Letter at 1) The letter also asserted that “efforts to undermine the Committee’s authority will not limit the

Company’s exposure” (id. at 5) and that “the Committee is prepared to seek all appropriate legal remedies.” (id. at 7)

In light of the Competing Letters, on April 22, Skadden again orally informed counsel for the Special Committee that Skadden would be advising the

Company on the Competing Letters, and that Skadden likely could not share that advice with the Special Committee. (Ex. 3 at 3-4)

The Board met on April 29, and authorized management to engage an executive search firm to identify disinterested and independent candidates to be considered for appointment to a new committee that would address the letters.

(Dkt. 204 (“Motion”) ¶ 7)

C. The Special Committee Seeks Documents, And The Company Asserts Privilege. On April 30, 2020, counsel for the Special Committee emailed

Skadden requesting various documents including “[a]ll documents between

Skadden and the Company discussing (a) the Special Committee’s authority and

(b) concerning the proposed new committee.” (Ex. 4)

On May 5, Skadden responded for the Company, noting that “the competing letters sent to the Board by outside counsel for SoftBank and outside counsel for the Special Committee create fundamental disputes regarding, among other things, the proper scope of the Special Committee’s authority and the pending litigation. .... Moreover, at the meeting of the Board on April 29, 2020, all directors acknowledged that they had a conflict regarding the disputes presented in the letters. Accordingly, the Company believes that any documents exchanged between Skadden and Company management that may exist concerning the competing letters, the disputes they raise …, and a process to resolve the disputes, are either ministerial or protected by the attorney-client and work product privileges[.]” (Ex. 3 at 3-4)

On May 6, counsel for the Special Committee responded, stating

“[t]hat the documents sought are, in your view, ministerial or privileged is irrelevant” because the Special Committee purportedly was acting on the

Company’s behalf. (Ex. 3 at 2)

The following day, Skadden responded on behalf of the Company, again explaining that given the circumstances, “the Special Committee could not reasonably have expected that the Company would be unable to seek and obtain its own advice from its outside counsel about the disputes raised by the letters, without having to share that advice with the disputants.” (Ex. 3 at 1) Skadden explained that the Special Committee’s position “assume[s] away the problem faced by the Company” because it presumed that the Special Committee was empowered and unconflicted, both of which were “the core of the disputes raised by the competing letters.” (Id.)

On May 9, 2020, the Special Committee sent a letter to the Company pursuant to Section 220(d) of the Delaware General Corporation Law demanding inspection of the Company’s books and records relating to the possible appointment of new directors and formation of a new committee. (Ex. 5) The

Company responded by letter dated May 26, agreeing to provide the demanded inspection, but once again subject to attorney-client and work product privileges.

(Ex. 6)

The Special Committee took no action to pursue its asserted right to inspect the Company’s privileged communications relating to the Competing

Letters.

D. The Status Quo Motion. On May 11, 2020, through its own counsel at WSGR, and without consulting with Company in-house counsel or Skadden, the Special Committee filed a motion for a status quo order to stop the Company from appointing new directors or forming a new committee. (Dkt. 55, the “Status Quo Motion”) In its

Proposed Order, the Special Committee asked the Court to enjoin the Board from forming any new committee to “review, evaluate, or assess the authority of the

Committee to pursue litigation on behalf of the Company” and preventing the

Board from taking “any action to terminate or otherwise limit the authority of the

Committee to pursue litigation on behalf of the Company related to the MTA.”

(Id.)

The Company, through Skadden, opposed the Status Quo Motion.

(Dkt. 92)

The Court denied the Special Committee’s motion without prejudice.

E. The New Committee And Its Determinations. On May 29, 2020, an executive search firm presented two candidates to the Board. The Board appointed the two candidates as directors and empowered

them as the New Committee to determine “whether the Special Committee has or should have, in the best interests of the Company and its stockholders, the authority to cause the Company to commence and/or continue the MTA

Litigation.” (Motion ¶ 9)

The New Committee engaged its own counsel and investigated the issues raised by the Competing Letters. (Motion ¶ 11) On July 29, 2020, the New

Committee delivered its report to the Board and adopted resolutions implementing the conclusions in its report. (Id. ¶ 10)

The New Committee concluded, based on the history of the establishment of the Special Committee and its enabling resolutions, that the

Special Committee did not have the authority to institute this litigation or to continue pursuing this litigation. The New Committee also concluded that, irrespective of whether the Special Committee had authority to pursue this litigation, the litigation was not in the best interests of the Company. Among other things, the New Committee found that the benefits to the Company of the litigation were limited, because recovery would flow to tendering stockholders, not the

Company; that the litigation was causing significant harm to the Company by fostering the perception that the Company was financially unstable; created conflict on the Board that threatened to stymie important Company objectives; was a distraction to management; and was costly. The New Committee also found that

the Special Committee was conflicted from prosecuting a suit in the name of the

Company, because the Special Committee’s interests were not aligned with the

Company and its stockholders, whose goals are to improve the Company’s business, whereas the Special Committee’s goals are to secure a premium exit option for a sub-group of tendering stockholders. (Report at 40)

The New Committee unanimously resolved that “for the reasons detailed in the Report, the Special Committee did not have authority to initiate the

MTA Litigation or Similar Litigation, does not presently have authority to maintain the MTA Litigation or Similar Litigation, and should not have the authority to continue the MTA Litigation or commence Similar Litigation….”

(Dkt. 204, Ex. C, July 28, 2020 Resolution) The New Committee therefore directed the Company’s legal department to instruct Company counsel to move promptly for leave to voluntarily dismiss the Company complaint without prejudice. (Motion ¶ 11) The Company filed that motion on July 30, 2020. (Dkt.

204)

The Special Committee has stated that it will oppose the Company’s motion for leave to dismiss and has sought a wide variety of information, including

“[d]ocuments and communications from The We Company (as well as Skadden

Arps or any other Company representative) regarding,” among other things, “[t]he decision to form a New Committee, including relating to who was involved in or

consulted about that decision and how it was determined that the New Committee would exist for a limited time.” (Dkt. 227, Ex. 1) Certain of these categories would necessarily entail privileged discussions among Company management,

Company in-house counsel, and Company outside counsel.

ARGUMENT

I. THE SPECIAL COMMITTEE IS NOT ENTITLED TO DISCOVERY OF PRIVILEGED COMMUNICATIONS REGARDING THE COMPETING LETTERS AND THE NEW COMMITTEE. Directors of a Delaware corporation are generally entitled to share in the legal advice the corporation receives. But that right is not absolute. Where “a director’s interests come into conflict with the interests of the corporation on a given issue, the board is entitled to deliberate – and receive legal advice – in confidence and without having to share that advice with the director whose interests are adverse.” SBC Interactive, Inc. v. Corporate Media Partners, 1997

WL 770715, at *6 (Del. Ch. Dec. 9, 1997). It is appropriate to withhold privileged information “once sufficient adversity exists between the director and the corporation such that the director could no longer have a reasonable expectation that he was a client of the board’s counsel.” Kalisman v. Friedman, 2013 WL

1668205, at *5 (Del. Ch. Apr. 17, 2013).

A. The Special Committee Established Itself As Adverse To The Company With Respect To The Competing Letters And The New Committee. SoftBank’s April 17 letter to the Board raised critical issues about the

Special Committee’s authority and conflicts of interest. The Special Committee never sought advice from the Company’s in-house legal team or its outside counsel about these issues or how to respond to them. On the contrary, the Special

Committee decided to respond to the SoftBank Letter though its own counsel with

its own adversarial and threatening letter to the Board, thereby setting itself at arm’s-length from the Company and the Company’s in-house and outside counsel with respect to the issues raised. By its own statements and actions, the Special

Committee created sufficient adversity with the Company such that it could not have expected to be privy to Company management’s privileged discussions about the Competing Letters (including the Special Committee’s threats) and how to address them. In these circumstances, management was “entitled to deliberate – and receive legal advice – in confidence and without having to share that advice with the director[s] whose interests are adverse.” SBC, 1997 WL 770715, at *6.

Neither the Special Committee nor the directors affiliated with SoftBank are entitled to access that confidential privileged information.

The Special Committee confirmed and reinforced its adversity by filing the Status Quo Motion seeking to enjoin the Company from appointing disinterested and independent directors to consider and act upon the issues raised by the Competing Letters. The Company, through its own counsel, opposed the

Status Quo Motion. Yet the Special Committee appears to contend that even after it pursued litigation against the Company to stop the Company from forming and empowering the New Committee, it is still entitled to peer into the Company’s privileged communications about the New Committee. No case supports that non- sensical view of the law.

Promptly upon receipt of the SoftBank Letter, the Special Committee eschewed the Company’s in-house and outside counsel, and consciously placed itself adverse to the Company. While communications prior to the SoftBank Letter are not privileged as to the Special Committee, once the Special Committee received the SoftBank Letter and placed itself opposite the Company, the

Company’s communications became privileged. See In re CBS Corp. Litig., 2018

WL 3414163, at *6 (Del. Ch. July 13, 2018) (determining whether communications are privileged against certain directors involves examining whether they “were (or reasonably should have been) aware of the existence of such adversity such that they could not have had a reasonable expectation that they were clients of [company counsel] at a given time”).

The facts of Kalisman v. Friedman present an instructive contrast. In

Kalisman, certain directors secretly acted without the knowledge of another director, and even misrepresented that no transaction was planned. Later, the board met and voted to create a subcommittee excluding the disfavored director.

The Court found that his “fellow directors did not act openly and with his knowledge” until that board meeting, such that communications prior to that board meeting were not privileged because, prior to that time, the director could not have had a reasonable expectation of adversity – but also held that once the director was

on notice of the adversity, the company could withhold privileged information.

Kalisman, 2013 WL 1668205, at *5.

Here, the Special Committee cannot complain of any surprise.

Indeed, the Special Committee itself created the adversity that precludes access to the Company’s privileged communications. SoftBank did not hide its letter from the Special Committee, and that letter openly and explicitly confronted the Special

Committee with serious issues about its authority and its conflicts. It is evident that the Special Committee considered itself adverse to the Company from the moment it received the SoftBank Letter. It did not go to the Company’s in-house or outside counsel for advice, but acknowledged its adversity by having its own counsel send an adversarial and threatening letter to the Board in response.

SBC Interactive is also on point. There, the Court found no evidence that one of the general partners regarded in-house counsel as its attorney or had a reasonable expectation that in-house counsel would be representing that general partner’s interests when the general partner entered a dispute with the other general partners in a way adverse to that of the partnership. Once a dispute arose,

it became undeniable that SBC’s interests and the interests of the Partnership (and, thus, of the remaining partners) were adverse. SBC must have been aware of the fact that [in-house counsel] was on the other side of that dispute. SBC’s conduct is consistent with that awareness: until it filed this motion, SBC never claimed that [in-house counsel] was its counsel or represented its interests.

SBC, 1997 WL 770715, at *4. So too here. The Special Committee, which has its own lawyers, never sought advice from Company in-house counsel or Company outside counsel on the matters raised by the SoftBank Letter and the formation and investigation of the New Committee.

Because the Special Committee’s own statements and actions confirm that it did not reasonably expect that it was a client of the Company’s counsel with respect to the issues raised in the Competing Letters and the New Committee, any communications relating to those issues are privileged as to the Special

Committee. See CBS, 2018 WL 3414163, at *7 (“To reach the opposite conclusion would undermine the legitimate expectation that the … deliberative processes would be held in confidence and would not be shared with the designees of the party whose adverse interests necessitated their formation in the first place.”).

Finally, the Special Committee’s own actions undercut its request in one additional dispositive respect. Since late April, the Company has clearly and consistently told the Special Committee that it would not turn over these privileged communications, including in response to a formal books and records demand.

Yet the Special Committee did nothing to pursue any purported entitlement to access those privileged communications. Having sat on its hands for months when it could have pursued a resolution in the ordinary course, it ought not be heard now to demand resolution on an expedited schedule.

B. Production Of Privileged Communications To Both The Special Committee And SoftBank Would Exacerbate, Not Solve, The Problem. During the conference on August 7, the Court asked the parties to consider whether production of the disputed privileged communications to both the

Special Committee and SoftBank via a Rule 510(f) order would resolve the problem. Respectfully, it would not.

The issue here is that Company management, stuck between two factions of the Board, needs to be able to seek and receive advice from its own counsel. Sharing privileged communications with both the Special Committee and

SoftBank would not solve that issue; it would exacerbate it by creating a disincentive for Company management to communicate with its counsel based on the fear that such communications would subsequently be disclosed to both

SoftBank and the Special Committee. Rule 510(f) may mitigate the risks of other consequences to the Company of a waiver of privilege. But a Rule 510(f) order allowing both SoftBank and the Special Committee to access the Company’s privileged information does not address the fundamental issue here – that the

Special Committee and SoftBank are not entitled to access the Company’s privileged advice in these circumstances.

The purpose of the attorney-client privilege is “‘to foster the confidence of the client and enables him to communicate without fear in order to seek legal advice.’” Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992) (citation

omitted). Allowing the Special Committee and SoftBank to access those privileged communications under the guise of a Rule 510(f) order would achieve the opposite, and would stifle corporate officers from seeking legal advice that might ultimately be disclosed to the very people who are making the claims for which the advice is needed.

For these reasons, the Company submits that a Rule 510(f) order is not the solution here, and that the Special Committee and SoftBank should both be denied access to the Company’s privileged materials.

II. DEPOSITIONS BEYOND THOSE OF THE NEW COMMITTEE MEMBERS WOULD BE INAPPROPRIATE. The Special Committee asked to take five depositions in connection with the Company’s Rule 41(a) Motion – the two members of the New Committee, and also Sandeep Mathrani (WeWork’s CEO), Jen Berrent (WeWork’s Chief

Legal Officer) and Graham Robinson (of Skadden). The two members of the New

Committee have agreed to appear for deposition. However, depositions of

Mathrani, Berrent and Robinson would not be appropriate.

The Special Committee seeks these depositions explicitly to probe into privileged communications relating to the Competing Letters and the New

Committee. (Dkt. 227, at 5 (stating that Mr. Robinson “conceived of the New

Committee process” and that Mr. Mathrani and Ms. Berrent were “intimately

involved in the creation of the New Committee”)) Deposition questions on those topics would be objectionable for the same reasons discussed above with respect to the production of documents.

In its letter to the Court of August 6, 2020, the Special Committee also said that it would like to depose Mr. Mathrani and Ms. Berrent because they were interviewed by the New Committee and explained to the New Committee the harm being suffered by the Company from the litigation. (Dkt. 227, at 5)

This is also not a proper purpose for a deposition because deposition testimony from witnesses about what they said to the New Committee is irrelevant to the validity of the New Committee’s acts. The New Committee is not a Zapata committee. It has not purported to adjudicate or settle any claims, but has simply determined that the Special Committee does not and should not have authority to pursue them in the name of the Company. Moreover, even in a Zapata situation, discovery is limited to the committee’s independence and the reasonableness of its process. See Kastis v. Carter, C.A. No. 8657-CB, at 50 (Del. Ch. Nov. 17, 2014)

(TRANSCRIPT) (cases addressing discovery about a special litigation committee

“frame the permissible scope of discovery to really two fundamental categories.

One is to test the independence of committee members. And, two, is to test the good faith of the committee, which I think also bears on the reasonableness of its

investigation. But what’s not permitted is to take full-blown discovery into the underlying merits of a claim….”).

Thus, depositions beyond those of the special litigation committee members (or here, the New Committee members) are not appropriate. For example, in Abbey v. Computer & Communications Technology Corp., 1983 WL

18005, at *2-3 (Del. Ch. Apr. 13, 1983), the stockholder plaintiff sought to depose corporate officers and directors as well as persons interviewed by the special litigation committee. The Court held that the purpose of discovery into the special litigation committee was not to “permit the plaintiff to take full Court authorized discovery of the same matters investigated informally by the Committee and to then compare the one against the other in order to test for good faith and reasonableness,” and limited the plaintiff to “taking the deposition[s] of the Special

Litigation Committee with a view toward establishing just what was done in the course of its investigation, and why.” Id. at *3.

Mr. Mathrani, Ms. Berrent and Mr. Robinson cannot speak to the

Special Committee’s independence or its process. The only possible purpose for their depositions would be to obtain privileged information about the formation of the New Committee, which is not appropriate, or to repeat what they told the New

Committee in their interviews, which can be learned from depositions of the New

Committee members and documents the New Committee will be producing.

For these reasons, the Court should deny the Special Committee’s request for depositions other than those of the New Committee members.

CONCLUSION For the reasons set forth herein, the Company request that the Court

(1) deny the Special Committee’s request for privileged Company information from April 17, 2020 to the present, and (2) deny the Special Committee’s requests for depositions of Sandeep Mathrani, Jen Berrent and Graham Robinson.

Respectfully submitted,

OF COUNSEL: /s/ Robert S. Saunders Robert S. Saunders (ID No. 3027) George A. Zimmerman Sarah R. Martin (ID No. 5230) SKADDEN, ARPS, SLATE, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP MEAGHER & FLOM LLP One Manhattan West One Rodney Square, P.O. Box 636 New York, New York 10001 Wilmington, Delaware 19899-0636 Tel.: (212) 735-3000 Tel.: (302) 651-3000

Attorneys for The We Company

Words: 4,320 DATED: August 11, 2020

CERTIFICATE OF SERVICE

I, Robert S. Saunders, hereby certify that on August 11, 2020, a copy of The We Company’s Opening Brief in Support of Its Objections to the Special

Committee’s Requested Discovery in Connection with the We Company’s Motion for Leave to Dismiss the Complaint Pursuant to Court of Chancery Rule 41(a) with

Exhibits was served electronically upon the following counsel of record via File &

ServeXpress:

William B. Chandler (ID No. 116) William M. Lafferty (ID No. 2755) Brad D. Sorrels (ID No. 5233) Kevin M. Coen (ID No. 4775) Lori W. Will (ID No. 5402) Sabrina M. Hendershot (ID No. 6286) Lindsay Kwoka Faccenda (ID No. 5772) Sara Toscano (ID No. 6703) Leah E. Brenner (ID No. 6536) MORRIS, NICHOLS, ARSHT Jeremy W. Gagas (ID No. 6602) & TUNNELL LLP WILSON SONSINI GOODRICH 1201 N. Market Street & ROSATI, P.C. Wilmington, Delaware 19801

222 Delaware Avenue, Suite 800 Attorneys for Plaintiffs Adam Wilmington, Delaware 19801 Neumann and We Holdings LLC Attorneys for Plaintiff

The We Company Elena C. Norman (ID No. 4780)

Rolin P. Bissell (ID No. 4478) Michael A. Barlow (ID No. 3928) Nicholas J. Rohrer (ID No. 5381) E. Wade Houston (ID No. 6289) YOUNG CONAWAY STARGATT ABRAMS & BAYLISS LLP & TAYLOR, LLP 20 Montchanin Road, Suite 200 1000 North King Street Wilmington, Delaware 19807 Wilmington, Delaware 19801

Attorneys for Defendant Attorneys for Defendant SoftBank Vision Fund (AIV MI) L.P. SoftBank Group Corp.

/s/ Robert S. Saunders Robert S. Saunders (ID No. 3027)

876674-WILSR01A - MSW