Motion to Stay Proceedings in Bak, Jon vs. Capital Carpet And Flooring Specialists et al| Trellis.Law

On June 08, 2023 a Exhibit,Appendix was filed involving a dispute between Bak, Jon, and Capital Carpet And Flooring Specialists, Marrama, Mark, for Contract / Business Cases in the District Court of Middlesex County.

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Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2381CV01682

JON BAK,
RECEIVED
Plaintiff,
5/20/2024
Vv.

CAPITAL CARPET AND FLOORING
SPECIALISTS, INC. and MARK
MARRAMA,

Defendants.

PLAINTIFF JON BAK’S MOTION FOR PROTECTIVE ORDER
AND

TO STAY DISCOVERY AS TO COUNTERCLAIMS PENDING THE COURT’S
DISPOSITION OF PLAINTIFF’S MOTION TO DISMISS

Pursuant to Mass. R. Civ. P. 26(c), Plaintiff Jon Bak (“Plaintiff’ or “Bak”) hereby moves

this Honorable Court to (2) issue a protective order related to Defendant Capital Carpet and

Flooring Specialists, Inc.’s (“Capital”) subpoena of Bak’s current employer, Select Tile, Marble

and Flooring, LLC (“Select”), and (2) stay discovery related to the Capital’s counterclaims

pending this Court’s disposition of Plaintiff's Motion to Dismiss them. Subpoenas to a party’s

employer should only be used “as a last resort.” Further, the subpoena here is grossly overbroad

and premature. Moreover, at this juncture, while Bak’s motion to dismiss the counterclaim

complaint is pending, any discovery on those counterclaims is unduly burdensome and costly. In

further support of his Motion, Bak states:

mr
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

1 RELEVANT PROCEDURAL BACKGROUND

On or around June 8, 2023, Bak filed suit against Capital and Mark Marrama (“Mr.

Marrama”) (collectively, “Defendants”), alleging violation of the Wage Act, G.L. c. 149, §§ 148,

150; breach of contract; breach of implied covenant of good faith and fair dealing; quantum

meruit; and declaratory judgment.

On or around September 21, 2023, Bak served interrogatories and a request for

production of documents upon Defendants.' Ninety days later, on December 20, 2023,

Defendants filed their Answer and Counterclaim, alleging breach of contract and

misappropriation in violation of the Massachusetts Uniform Trade Secrets Act, after Bak agreed

to set aside this Court’s issuance of default against Defendants on December 14, 2023.

Thereafter, on or around February 5, 2024, Plaintiff served a Motion to Dismiss.

On or around February 15, 2024, Capital served Bak with interrogatories and a request

for production of documents upon Plaintiff. Additionally, Capital served a subpoena that it

intended to serve upon Select Tile, Plaintiffs current employer, attached hereto as Exhibits A, B

and C, respectively. Capital agreed to stand down on the service of the subpoena to Bak’s

current employer, subject to service of the instant motion.

On or around February 26, 2024, Capital filed an Amended Counterclaim with this Court.

On or around March 14, 2024, Plaintiff and Defendants filed a joint stipulation allowing Plaintiff

to serve his Answer, Responsive Pleading, or Motions in response to or in connection with

Capital’s Amended Counterclaim by March 27, 2024. Plaintiff is serving its Motion to Dismiss

Amended Counterclaim concurrently with this instant motion.

1 To date, Capital still has not produced any documents whatsoever. Bak is also serving a
motion to compel both the documents and complete answers to interrogatories concurrently with
this motion.
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

Il. LEGAL ARGUMENT

Massachusetts Rule of Civil Procedure 26(c) provides courts with broad discretion to

“make any order which justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense[.]” Mass. R. Civ. P. 26(c). To protect a

party from “annoyance, embarrassment, oppression, or undue burden or expense,” the trial court

may issue a protective order mandating that, without limitation, “that the discovery not be had”;

“that the discovery may be had only on specified terms and conditions”; and “that certain matters

not be inquired into, or that the scope of the discovery be limited to certain matters...” Jd. This

Court has granted motions to stay discovery on grounds that a dispositive motion is currently

pending. See, e.g., DePina v. Worcester County District Attorneys Office, No. 22-J-0613, 2022

WL 17076228, at *1-2 (Mass. App. Ct. Nov. 16, 2022) (overturning Superior Court and ordering

discovery stayed pending resolution on motion to dismiss where defendant raised immunity

defense in motion to dismiss); Scripps v. Scripps, No. 98-P-01614, 2002 WL 518483, at *1

(Mass. App. Ct. Apr. 5, 2002) (noting Superior Court judge granted motion to stay discovery

pending resolution of motion for summary judgment).”

A. The MUTSA, G.L. c. 93, § 42, Prohibits Discovery On The Counterclaims As
Defendants Have Failed to Articulated the Alleged “Trade Secrets” at Issue
with the Particularity Required by the Statute.

Contemporaneously with this motion, Bak has moved to dismiss the two-count Amended

Counterclaim Complaint (“ACC”) in its entirety. With respect to Count II, alleging violation of

the MUTSA, Bak moves to dismiss, without limitation, on the basis that Capital has failed to

identify the “trade secrets” at issue with the specificity required under the MUTSA, GLL. c. 93,

§ 42D. See Memorandum in Support of Motion to Dismiss, at pp. 8-16. With respect to Count I,

breach of contract, Bak has moved to dismiss, without limitation, on the basis that that claim is
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

superseded by the MUTSA, pursuant to G.L. c. 93, § 42F. See Memorandum in Support of

Motion to Dismiss, at pp. 16-20.

“In an action under sections 42 to 42G, inclusive, in alleging trade secrets

misappropriation a party must state with reasonable particularity the circumstances thereof,

including the nature of the trade secrets and the basis for their protection.” G.L. c. 93, § 42D(b).

Captial’s failure to meet this “reasonable particularity” requirement is the key basis of Bak’s

motion o dismiss. Further, “[b]efore commencing discovery relating to an alleged trade secret,

the party alleging misappropriation shall identify the trade secret with sufficient particularity

under the circumstances of the case to allow the court to determine the appropriate parameters of

discovery and to enable reasonably other parties to prepare their defense.” /d.

“MUTSA makes clear that the purpose of the pre-discovery identification requirement is

‘to allow the court to determine the appropriate parameters of discovery and to enable reasonably

other parties to prepare their defense.” Cynosure, LLC v. Reveal Lasers LLC, No. 22-cv-11176-

PBS, 2023 U.S. Dist. LEXIS 228328, at *5-6 (D. Mass. Dec. 22, 2023), quoting G.L. c. 93, §

42D(b). Here, where Capital has not made adequate disclosures of its purported trade secrets,

this Court should issue a protective order staying discovery on Capital’s counterclaims until the

motion to dismiss is disposed of, and should the claims survive the motion to dismiss, until

Capital make the disclosures required by the MUTSA. Milliman, Inc. v. Gradient
A.I. Corp., No.

21-10865-NMG, 2022 U.S. Dist. LEXIS 234167, at *9 (D. Mass. July 11, 2022) (requiring

plaintiff in trade-secret action to provide trade secret disclosures “consistent with 42D” and

granting protective order to defendant extending in deadline to respond to discovery responses

following issuance of compliant trade-secrets disclosure).
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

B. Capital’s Discovery Requests are Intended to Annoy, Embarrass, Oppress
and Unduly Burden Plaintiff.

Capital’s discovery requests, served at this matter’s current procedural posture, are

annoying, oppressive and unduly burdensome. See Mass. R. Civ. P. 26(c). Capital served its

interrogatories and request for documents just three days after Bak served its initial Motion to

Dismiss Counterclaim. Pursuant to Mass. R. Civ. P. 33 and 34, the responses to Capital’s

discovery requests are due well before this Court schedules a hearing on Plaintiff's Motion to

Dismiss Amended Counterclaim and rules on Plaintiffs motion. As the Court’s ruling on

Plaintiff's motion to dismiss may dispose of all of Capital’s claims against Bak, these written

discovery requests served before the Court has even scheduled the hearing, could result in Bak

bearing the undue burden and expense of responding to Capital’s written discovery requests

where response may ultimately be unnecessary. Further, for the reasons outlined in Plaintiff's

motion to dismiss, and in Part A, supra, discovery related to Capital’s coutnerclaims should not

commence at this time. Capital is attempting to circumvent its pleading requirements under the

Massachusetts Uniform Trade Secrets Act to prove its claims, which is impermissible. Forcing

Bak to expend resources on responding to Capital discovery requests before the Court rules on

his Motion to Dismiss constitutes an undue burden that provides a tactical advantage to Capital

that the MUTSA explicitly proh9ibits. As such, this Court should grant a stay in any discovery

related to Capital’s Counterclaim pending its disposition of Bak’s motion to dismiss the ACC.

C. Capital’s Subpoena of Select is Harassing and Should Only be Used as a Last
Resort.

Courts look with strong disfavor on defendants issuing subpoenas to current employers in

discrimination or unlawful termination cases. Such subpoenas raise “the specter of retaliation

against claimants.” EEOC v. Texas Roadhouse, Inc. 303 F.R.D. 1, 3 (D. Mass. 2014). Plaintiffs
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

have a “legitimate concern that a subpoena sent to [their] current employer under the guise of a

discovery request could be a tool for harassment and result in difficulties for [them] in [their]

new job.” Id., quoting Graham v. Casey's General Stores, 206 F.R.D. 251, 256 (S.D. Ind. 2002).

“Under Rule 26, the trial court is required to balance the burden of proposed discovery against

the likely benefit.” Texas Roadhouse, 303 F.R.D. at 2, quoting Gill v. Gulfstream Park Racing

Ass’nf.], Inc., 399 F.3d 391, 400 (1st Cir. 2005). Subpoenas to subsequent employers “should be

used only as a last resort.” Texas Roadhouse, Inc., 303 F.R.D. at 3 (citation omitted).

Here, Capital’s subpoena of Select is grossly premature, and is clearly intended to

interfere with Bak’s employment as part of Capital’s continuing campaign of retaliation against

Bak for his exercise of Wage Act rights. Capital has included document requests in its subpoena

that are completely irrelevant, overbroad in temporal and subject matter scope and

disproportionate to the needs of this case. Of note, Capital has demanded Select to produce Bak’s

personnel records; all of Capital’s documents concerning its hiring of Bak; all documents and

communications concerning Mark Marrama; and all documents and communications

concerning Capital Carpet. Such requests have nothing to do with Capital’s Counterclaim

against Bak and are improper, irrelevant, disproportional, and unduly burdensome to Select,

which is not a party to this matter.

Similarly, Capital’s topics of examination are vague, overbroad, improper and harassing.

For example, Capital seeks to obtain testimony about “Bak’s involvement, whether direct or

indirect,” with numerous projects or customers without defining “involvement, whether direct or

indirect.” Further, Select must testify pursuant to the subpoena about Bak’s drafting and creation

of any “labor production” charts or materials, of which “labor production” is undefined, and

which clearly involves confidential and proprietary information. Finally, Capital demands
Date Filed 5/20/2024 4:45 PM
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Docket Number 2381CV01682

testimony about the identify of any Select customers or clients, or prospective customers or

clients, with whom Bak has had any direct or indirect involvement (undefined) with creating

bids, pricing or estimates. This topic is intrusive, improper and clearly a fishing expedition by

Capital to find evidence in support of its speculative efforts to prove that Bak actually solicited

its customers and worked on certain projects and bids for Select by using Capital’s purported

“trade secrets.” Indeed, in its Amended Counterclaim, Capital relies upon conclusory assertions

prefaced by the term “upon information and belief,” that Bak purportedly misappropriated

engaged in various acts of alleged wrongdoing. Capital cannot try to prove its claims by

subjecting Bak’s current employer to such an overbroad, unduly burdensome and improper

subpoena, particularly given the serious likelihood that this course of conduct could harm Bak’s

career and given the timing of the subpoena at the very start of Capital’s discovery efforts. Any

likely benefit of this subpoena to Capital is far outweighed by the burden to Select. Moreover, as

outlined supra, this Court may dispose of Capital’s Counterclaim, which would render this

subpoena futile. Accordingly, this Court should issue a protective order preventing Capital from

going forward with its subpoena of Select.

D. No Party will be Prejudiced by Waiting until this Court Rules on Plaintiff’s
Motion to Dismiss to Conduct Discovery related to Capital’s Counterclaim.

Neither Defendants nor Plaintiff will be prejudiced by the Court granting this motion.

Staying Discovery as to Capital’s discovery requests related to its Counterclaim against Bak until

resolution of Bak’s Motion to Dismiss will save Bak from unnecessary burden and expense that

may ultimately be unnecessary. As noted above, Capital waited until December 20, 2023, more

than six months after Bak filed his suit, to file its Counterclaim. Further, Capital waited one full

year after Bak left its employ to join Select to serve discovery. Any contention from Defendants

that they will be prejudiced by waiting for this Court’s decision on Plaintiff’s motion to dismiss
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

is thus completely disingenuous. The parties lose nothing by waiting for the Court’s resolution

on Bak’s motion to dismiss to conduct discovery related to Capital’s counterclaim.

il. CONCLUSION
For the foregoing reasons, Plaintiff Jon Bak respectfully requests that this Honorable

Court (1) stay discovery related to the Counterclaim complaint filed by Defendants Capital

Carpet and Flooring Specialists, Inc. pending this Court’s disposition of Plaintiff's Motion to

Dismiss, and (2) issue a protective order and quash Capital’s subpoena of Plaintiffs current

employer, Select Tile, Marble and Flooring, LLC.

Respectfully submitted,
JON BAK,
Plaintiff/Counterclaim-Defendant,
By his attorneys,

/s/ Todd J. Bennett
Todd J. Bennett (BBO# 643185)
thennett@bennettandbelfort.com
Michaela C. May (BBO#676834)
mmay@bennettandbelfort.com
Sudeshna Trivedi (BBO# 706752)
strivedi@bennettandbelfort.com
Bennett & Belfort, P.C.
24 Thorndike Street, Suite 300
Cambridge, MA 02141

Dated: March 26, 2024
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

CERTIFICATE OF COMPLIANCE WITH SUPERIOR COURT RULE 9C

I certify that I complied with Superior Court Rule 9C(a), including without limitation, by
engaging in communications with opposing counsel on the motion to stay on March 19, 2024.

/s/ Todd J. Bennett
Todd J. Bennett
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of March 2024, I served a true copy of the foregoing
document by email upon counsel of record for Defendants:

Matthew Horvitz, Esq.
Julius A. Halstead, Esq.
Goulston & Storrs P.C.
400 Atlantic Avenue
Boston, MA 02110
mhorvitz@goulstonstorrs.com
jhalstead@goulstonstorrs.com

/s/ ToddJ. Bennett
Todd J. Bennett

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Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

EXHIBIT A
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2381CV01682

JON BAK,
Plaintiff,

Vv.

CAPITAL CARPET AND FLOORING
SPECIALISTS, INC. and MARK
MARRAMA,

Defendants.

PLAINTIFF JON BAK’S FIRST SET OF INTERROGATORIES TO DEFENDANT
CAPITAL CARPET AND FLOORING SPECIAL INC.

Pursuant to Rule 33 of the Massachusetts Rules of Civil Procedure and Massachusetts
Superior Court Rule 30A, the following interrogatories are required to be answered in detail by
you or, if you are a corporation, partnership, association, or governmental agency, by any officer
or agent who is competent and authorized by you to answer on your behalf, and who knows, or
has access to, the information about which the inquiry is made. Your answers must be under
oath and served upon counsel for Plaintiff Jon Bak (“Mr. Bak”).

In answering these interrogatories, you are required to furnish all information which is
available to you, and you are required to make such inquiry of your witnesses, agents, servants
and employees or any other person as will enable you to ascertain all of the facts necessary to
fully answer each request for information.
Be advised that you have a duty to seasonably amend or supplement a prior response if
you obtain information that leads you to believe that a response was incorrect when made, or that
a response, though correct when made, is no longer true. Furthermore, you are required to
supplement your response with respect to any interrogatory directly addressed to the identity and
location of persons having knowledge of discoverable matters as well as any interrogatory
directly addressed to the identity of each person expected to be called as an expert witness at
trial, the subject matter on which they are expected to testify, and the substance of their
testimony.
Before setting forth your answers to the following interrogatories, kindly make inquiry of
your agents, servants, employees, or other representatives, and consult all appropriate records, in
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

order that your answers to the following interrogatories may be as complete and accurate as
possible.

DEFINITIONS

In preparing Defendants’ responses to the requests set forth herein, the following
definitions should control, in conjunction with those definitions outlined in the Massachusetts
Rules of Civil Procedure, unless indicated otherwise by the context:

1 “And” as well as “or” shall be construed either disjunctively or
conjunctively as necessary to bring within the scope of each request all responses that
might otherwise be construed outside of its scope, or in other words, to give each request
its broadest possible meaning.

2 “Answer” refers to any Answer or Amended Answer filed by Defendants
Capital Carpet and Flooring Specialists, Inc. and Mark Marrama in the above-captioned
action.

3 “Any” shall be construed to mean “all,” and “all” shall be construed also
to mean “any.”

4 “Between” means cither from or to.

5 “Capital,” “you,” “your” or “the Company” refers to Defendant Capital
Carpet and Flooring Specialists, Inc. in the above-captioned case, including its agents,
employees, officers, attorneys, investigators, and anyone else acting on the Company’s
behalf;

6 “Complaint” refers to the complaint filed by Plaintiff Jon Bak, against
Defendant in Middlesex Superior Court, Docket No. 2381CV01682.

7 “Communication,” “communications,” or “correspondence” means
any and all inquiries, discussions, conferences, conversations, negotiations, meetings,
interviews, telephone conversations, letters, correspondence, electronic mail (email),
notes, facsimiles, memoranda, documents, writings or other forms of communication.
The term “communication” also means the transmittal of information, facts, opinions,
ideas, and inquiries irrespective of form. This definition is not intended to include any
communications between Defendants and their attorney(s).

“Concerning” means referring to, describing, evidencing, or constituting
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

9 “Mr. Marrama” refers to Defendant Mark Marrama in the above-
captioned case, including his agents, attorneys, and anyone else acting on Mark
Marrama’s behalf;

10. “Document” is defined to be synonymous in meaning and equal in scope
to the usage of this term in Mass. R. Civ. P. 34(a). A draft or non-identical copy is a
separate document within the meaning of this term.

11. “Employment” refers to the time Mr. Bak was employed by Capital.

12. “Including” means “including but not limited to.”

13. “Identify” (with respect to persons) means, when referring to a natural
person, to give to the extent known, the person’s (a) full name, (b) present or last known
address, and (c) the present or last known place of employment.

14. “Identify” (with respect to an entity) means, when referring to an entity,
to give to the extent known, (a) the entity's full name, including (when not apparent from
the name) the nature of the entity, e.g. corporation, limited liability corporation,
partnership, or professional corporation, (b) present or last known address of its
headquarters or principal place of business, and (c) the state in which the entity is
incorporated or otherwise created.

15. “Identify” (with respect to documents) means, when referring to
documents, to give to the extent known (a) the type of document; (b) the general subject
matter; (c) the date of the document; (d) the author or authors, according to the document;
and (e) the persons to whom, according to the document, the document (or a copy) was to
have been sent.

16. “Parties” refers to the term “plaintiff” or “defendant,” as well as a party’s
full or abbreviated name or a pronoun referring to a party, mean the party and, where
applicable, their officers, directors, employees, partners, corporate parent, and
subsidiaries.

17. “Person” means any natural person or any business, legal, or
governmental entity or association.

18. “Personnel Records” and “Personnel File” mean all documents
included in an employee’s “personnel record,” as defined under M.G.L. c. 149, § 52C, as
including, but not limited to, “the name, address, date of birth, job title and description;

3
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Docket Number 2381CV01682

rate of pay and any other compensation paid to the employee; starting date of
employment; the job application of the employee; resumes or other forms of employment
inquiry submitted to the employer in response to his advertisement by the employee; all
employee performance evaluations; including but not limited to, employee evaluation
documents; written warnings of substandard performance; lists of probationary periods;
waivers signed by the employee; copies of dated termination notices; any other
documents relating to disciplinary action regarding the employee.”

19. “Relating to” or “relate to” shall mean referring to, concerning,
regarding, describing, memorializing, evidencing, or constituting.

20. “Statement” includes statements which have been recorded as well as
those which have been reduced to writing, and includes unsigned as well as signed
statements.

INTERROGATORIES

INTERROGATORY NO. 1

Please identify each individual who answered or contributed to the answers to these
interrogatories, including their full name(s), last-known address, all positions they have held
(including the duties of each position) while employed by or otherwise associated with Capital,
and the dates they held each position.

INTERROGATORY NO. 2

Please state the following regarding Mr. Bak’s employment with Capital:

a) The date of hire and date of separation;
b) Each job title Mr. Bak held while employed at Capital, and in your response provide a
detailed description of his duties for each such position;
c) Each person who supervised Mr. Bak during his employment with Capital, and each
person whom Mr. Bak supervised. In your response identify each person’s job title
and job duties;
qd) Mr. Bak’s gross annualized base salary, including the dates of any increases or
decreases in his salary;
e) Each person whom Mr. Bak supervised, including each person’s name, address, title
and dates of employment; and
The number of days of Paid Time off (PTO) and vacation Mr. Bak was entitled to
receive per year in each position as well as the number of days of PTO and vacation
that Mr. Bak actually took per year in each position. All benefits Mr. Bak received.
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Docket Number 2381CV01682

INTERROGATORY NO. 3

For each position held by Mr. Bak during his employment with Capital, please state the
following regarding commissions that he was entitled to earn:

a) What actions did Mr. Bak need to conduct in order for a commission to became due
and owing to him. In other words, when did a commission become due and owing;
b) When commissions were supposed to be paid by Capital to Mr. Bak;
c) The date that any commission plan was updated, replaced or rescinded;
d) Any administrative fees, set offs, or other items that Capital deducted from
commissions owed to Mr. Bak; and
e) Please identify all individuals who calculated the commissions that were issued
and/or are still owed to Mr. Bak and all individuals who were responsible for paying
such commissions.

INTERROGATORY NO. 4

For each position held by Mr. Bak during his employment with Capital, please identify
the following items with respect to commissions that Mr. Bak earned:
a) A detailed description of each commission, including in your answer the customer to
whom product(s) were sold, the date(s) of each sale, and the nature and amount of
each product(s) sold;
b) For each of the above commissions please explain in detail how each commission
was calculated;
c) For each of the above commissions please explain in detail when the customer(s) paid
Capital;
qd) For each of the above commissions please explain in detail when Capital was
required to pay Mr. Bak;
e) For each of the above commissions please explain in detail when Capital actually
paid Mr. Bak;
f) For each commission that was withheld or set off in whole or in part, please identify
the commission by date and project/vendor, the full commission that was due and any
amounts that were withheld or set off, as well as a description of the reason; and
8) Please identify all individuals who calculated the commissions that were issued
and/or are still owed to Mr. Bak and all individuals who were responsible for paying
such commissions.

INTERROGATORY NO. 5

Please describe in detail each project or sale for which Mr. Bak is or may still be owed
commissions, including in your response the date Mr. Bak made the applicable sale, the
customer(s), the nature and amount of product(s) sold, the date that each payment is due from the
customer, and all monies paid by the customer to Capital to date (including the date(s) of each
payment).
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Docket Number 2381CV01682

INTERROGATORY NO. 6

Please identify all accounts that Mr. Bak was responsible for either procuring, developing or
maintaining during his employment, including the client(s) and project(s) associated with each
account, the dates that each account began or when Defendants began working on each such
account, and when the account terminated (if applicable).
INTERROGATORY NO. 7

For the time period January 1, 2016 through March 1, 2023, please state in detail the
following information regarding Capital’s business:

a. A detailed description of the nature of the business, including the various divisions and
products and services it sells. If there were changes to the nature of the business during
this time period, please state what the changes were and the dates of each change;
All persons who drafted any commission plan with respect to Mr. Bak; and
All persons responsible for selling any labor or materials, including a detailed description
of theirjob title and job duties.

INTERROGATORY NO. 8
Please list the following information regarding each person with relevant information relating
to any allegation outlined in Mr. Bak’s claims (or the factual bases for any of Defendant’s
affirmative defenses), including the following:

a Their name, address, and telephone number;
b. A detailed description of their knowledge; and
Cc The nature of their relationship to Mr. Marrama and Capital, including how long this
relationship has endured.

INTERROGATORY NO. 9

Please identify all individuals who drafted and/or created any and all commission plans in
effect at Capital for the time period January 1, 2016 through March 1, 2023. In your response,
please provide the individual’s name, address and telephone number as well as the nature of their
relationship to Mr. Marrama and Capital, including how long this relationship has endured.

INTERROGATORY NO. 10

Please state all facts supporting your affirmative defenses.
INTERROGATORY NO. 11
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Docket Number 2381CV01682

Identify all persons whom you expect to call as a witness in the trial in this matter;
including in your response each person’s address and telephone number, a detailed description of
what you believe each such witness will testify to, and a description of each person’s relationship
with you and the last time you spoke with them. If the witness is an expert witness, please also
state all Courts in which they have testified as an expert witness, including the docket numbers,
and the subject matter upon which s/he testified or was declared an expert witness, a detailed
summary of the opinions of each subject matter upon which each expert is expected to testify;
including a detailed description of the grounds for each opinion; and all documents, books,
treaties, articles, journals, periodicals, and other publications reviewed and/or used in
formulating each opinion.
INTERROGATORY NO. 12

In connection with Mr. Bak’s commissions, please describe the following with respect to
payments received by Capital and payment to Mr. Bank:
a) How payments were received by Capital from customers, whether by check, cash,
online payment, wire transfer, alternative currency (or otherwise), including a general
summary of the predominant manner in which payments were made;
b) All persons who either deposited funds into Capital’s account or who were otherwise
responsible for keeping track of payments made relative to commissions owed;
c) The process by which customer payments (or credits) were entered into any internal
record keeping system, including, all persons who were in charge of entering this data
and all people who had access to this data;
d) When payments were recorded internally by Capital

INTERROGATORY NO. 13

Please state all facts supporting any claim that Mr. Bak breached any agreement with
Capital or otherwise violated any non-solicitation restriction:

A detailed description of each fact that supports this claim against Mr. Bak;
The name(s) of each client or prospective client that Mr. Bak allegedly solicited
and/or serviced, including for each such client, the dates they were a client of Capital
and the annual billings Capital received and/or expected to receive from each such
client;
Whether the violation was direct or indirect;
The date(s) and means (i.e., verbally in person, verbally on the phone, via email, via
text message, etc.) by which Mr. Bak allegedly either contacted and/or communicated
with each such client or prospective client that Mr. Bak allegedly solicited and/or
serviced;
The detailed substance of any such communication between Mr. Bak and any Capital
client or prospective client; and
An itemization of all damages allegedly incurred by Capital as a result of Mr. Bak’s
alleged breach of contract.
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

INTERROGATORY NO. 14

Please state all facts supporting any claim that Mr. Bak tortuously interfered with
Capital’s contractual relations, including in your response the following:

A detailed description of each fact that supports this claim against Mr. Bak;
The name(s) of each Capital client (or prospective client) that Mr. Bak allegedly
interfered with, including for each such client, the dates they were a client and the
annual billings Capital received or expected to receive from each such client;
The factual basis for Capital’s position that Mr. Bak used improper means in
connection with this count, including a detailed description of the improper means
that Mr. Bak allegedly used, the date(s) that Mr. Bak used each such improper means;
The factual basis for Capital’s position that Mr. Bak had any improper motive in
connection with this count;
If this claim involves a prospective client of Capital’s, each factual bases for why
Capital believes each such prospective client was, in fact, a prospective client of
Capital’s; and
An itemization of all damages allegedly incurred by Capital as a result of Mr. Bak’s
alleged tortious interference with Capital’s relationship with the aforementioned
clients.

INTERROGATORY NO. 15

If Mr. Marrama denies that he is individually liable in this action, please state all factual
bases for this position.
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

Respectfully submitted,

JON BAK,

By his attorneys,

/s/ ToddJ. Bennett
Todd J. Bennett (BBO# 643185)
thenneti@bennettandbelfort.com
Sudeshna Trivedi (BBO# 706752)
strivedi@bennetiandbelfort.com
Bennett & Belfort, P.C.
24 Thorndike Street, Suite 300
Cambridge, MA 02141
Dated: September 21, 2023

CERTIFICATE OF SERVICE

I, certify that on this 21 day of September 2023, I served a true copy of the
foregoing document by Ist class mail, postage prepaid and email upon the following
attorneys of record:

Matthew Horvitz, Esq.
Goulston & Storrs P.C.
400 Atlantic Avenue
Boston, MA 02110
mhorvitz@goulstonstorrs.com

/s/ ToddJ. Bennett
Todd Bennett
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

EXHIBIT B
Date Filed 5/20/2024 4:45 PM
Superior Court - Middlesex
Docket Number 2381CV01682

COMMONWEALTH OF MASSACHUSETTS

Case Info

Judge

Christopher K Track Judge’s New Case

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Document Filed Date

May 20, 2024

Case Filing Date

June 08, 2023

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Exhibit,Appendix: Bak, Jon vs. Capital Carpet And Flooring Specialists et al

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