Preview
Date Filed 6/7/2024 9:44 PM
Superior Court - Middlesex
Docket Number 2381CV01682
20.1
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2381CV01682
JON BAK,
Plaintiff,
RECEIVED
v
CAPITAL CARPET AND FLOORING
SPECIALISTS, INC.,
06/07/24
Defendants.
DEFENDANTS’ MEMORANDUM IN SUPPORT OF
EMERGENCY MOTION FOR PROTECTIVE ORDER GOVERNING
THE USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION
In accordance with Massachusetts Civil Procedure Rule 26(c) and Superior Court Rule
9A(d), Defendants Capital Carpet and Flooring Specialists, Inc. (“Capital Carpet”) and Mark
Marrama respectfully request entry of a protective order governing the use and disclosure of
confidential information in this action.
Defendants’ proposed protective order is attached as Exhibit A (the “Proposed
Confidentiality Order’). The disputed issues among the parties are redlined in the version of that
order attached as Exhibit B (the “Redlined Confidentiality Order”). Defendants move for entry
of the Proposed Confidentiality Order on an emergency basis for two reasons:
1 First, after meeting and conferring on several occasions, and continuing to discuss
the contents of the Proposed Confidentiality Order through email and the exchange of multiple
revised drafts of the same, the parties have reached on impasse on three specific issues:
. Plaintiff has demanded that any information produced under Proposed
Confidentiality Order remain available for use outside of this particular
lawsuit in “any class or collective action involving wage act related issues
reasonably similar to those addressed [in this lawsuit.]” (emphasis added).
JB
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. Plaintiff has refused to require that witnesses at depositions or trial agree to
maintain the confidentiality of documents properly designated under the
Proposed Confidentiality Order.
Plaintiff has refused to include language in the non-party acknowledgement to
Proposed Confidentiality Order that brings signatories within the Court’s
jurisdiction and reminds signatories of the potential consequences for
violating a court order.
Plaintiff's required changes to the Proposed Confidentiality Order are unreasonable and
exceed the scope of Massachusetts Civil Procedure Rule 26(f)(3)(H), which allows this Court to
enter orders allowing for the assertion or preservation of confidentiality and the proprietary
status of information relating to the parties and non-parties. Despite requests to Plaintiff's
counsel from the undersigned, Plaintiff has failed to provide any basis — legitimate or otherwise —
for the three positions he has taken on the Proposed Confidentiality Order, supra. While these
items appear minor, they involve significant issues, detailed below. Unfortunately, this impasse
now requires judicial intervention.
2. Second, the Court entered an order on May 23, 2024, which requires Defendants
to produce supplemental discovery responses and documents by June 7, 2024. Defendants have
satisfied that deadline, but the lack of an agreement on adequate confidentiality protections has
forced Capital Carpet to redact confidential business information and trade secrets contained in
its document production. Upon the Court’s entry of the Proposed Confidentiality Order or an
equivalent protective order, Capital Carpet will produce unredacted copies of those documents
with the appropriate designations forthwith. For this reason, Defendants seek entry of the
Proposed Confidentiality Order on an emergency basis.
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Docket Number 2381CV01682
FACTUAL BACKGROUND
In this dispute, Plaintiff Jon Bak alleges violations of the Massachusetts Wage Act and
related contract and quasi-contract claims against Capital Carpet, his former employer. See
generally Paper No. 1. Bak alleges that Capital Carpet owes him commissions for flooring
projects that he sold while employed with the company. Capital Carpet, however, has denied
these allegations because it paid Bak all commissions currently due to him.
After abruptly resigning from his employment, Bak began working for a competitor of
Capital Carpet in the commercial flooring sales and installation industry. On behalf of his new
employer, Bak began bidding on the same projects for which he had prepared bids and estimates
while with Capital Carpet. This allowed Bak to “bid against himself” and beat his prior project
estimates, thereby using Capital Carpet’s confidential information and trade secrets. In response,
Capital Carpet asserted a two-count counterclaim against Bak based on his breach of restrictive
covenants and violations of the Massachusetts Uniform Trade Secrets Act. See generally Paper
No. 13.
In discovery, a significant number of Bak’s document requests seek materials and
information from Capital Carpet containing confidential business information and trade secrets.
On or about May 23, 2024, the Court entered an order requiring Defendants to produce
supplemental discovery responses and documents by June 7, 2024.
To facilitate the production of those documents, the parties discussed the entry of a
confidentiality order governing the use and disclosure of confidential information. After multiple
discussions among the parties and their exchange of draft confidentiality orders both prior and
subsequent to the May 23, 2024 order, the parties reached an impasse on three specific issues,
which are addressed below.
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Docket Number 2381CV01682
Now, Defendants have satisfied their June 7, 2024 deadline to supplement their discovery
responses and produce documents; however, the lack of an agreement on the Proposed
Confidentiality Order required Capital Carpet to redact certain confidential business information
and trade secrets contained in its document production and to move for entry of the Proposed
Continentality Order on an emergency basis.
ARGUMENT
“Upon motion by a party or by the person from whom discovery is sought, and for good
cause shown, the court in which the action is pending” may make any order “that a trade secret
or other confidential research, development, or commercial information not be disclosed or be
disclosed only in a designated way[.]” Mass. R. Civ. P. 26(c). “For good cause to exist, the party
seeking protection bears the burden of showing specific prejudice or harm will result if no
protective order is granted.” Trustees v. Magill, No. 0201027, 2006 WL 1075588, at *2 (Mass.
Super. Mar. 23, 2006) (citing Beckman Indus., v. International Ins. Co., 966 F.2d 470, 476 (9th
Cir.1992)).
Here, good cause exists to warrant the entry of the Proposed Confidentiality Order.
Indeed, the parties have agreed on virtually all language and provisions in the Proposed
Confidentiality Order, except as indicated in this memorandum. See Ex. B. The entry of a
confidentiality order is typical in these types of cases, especially where one party (here, Capital
Carpet) alleges that its confidential business information and trade secrets have been misused
and misappropriated by a former employee, namely, Bak. The potential harm and prejudice that
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Capital Carpet will suffer without confidentiality protections is significant, potentially leading to
the unprotected disclosure of its protectible business information!
Use in Other Proceedings. The first disagreement among the parties concerns whether
documents and other materials produced in discovery and designated as “confidential” or
“attorneys’ eyes only” may be used in future, separate “similar” lawsuits, potentially involving
other parties. See Redlined Confidentiality Order at p.4 (Plaintiff's counsel — “TBennett” —
refusing to delete language limited use of documents to this action only).
Before filing this emergency motion, the undersigned counsel requested the grounds for
such an unusual and prejudicial request, as well as any authorities that would support it. To date,
and after a telephone conversation on June 7, 2024, the Plaintiff's counsel has failed to provide
any such bases or authorities. Capital Carpet cannot agree that documents and information it
considers confidential or trade secret may be used by the Plaintiff's attorneys or others to
prosecute unspecified future lawsuits. That type of overreaching subverts the ordinary discovery
process for, apparently, ulterior motives. Rather, as provided in the Proposed Confidentiality
Order, the use of discovery materials produced in this lawsuit should be limited to this action
only.
Witness Agreement with Confidentiality Obligations. The second disagreement
among the parties concerns whether witnesses at depositions or trial should be required to
acknowledge and agree to the terms of the Proposed Confidentiality Order before receiving
confidential information. See Redlined Confidentiality Order at p.5.
' A detailed discussion about Capital Carpet’s confidential business information and trade secrets is found
in its Opposition to Plaintiffs Motion to Dismiss Amended Counterclaim (Paper No. #17.2), which is
hereby incorporated by reference.
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Docket Number 2381CV01682
In effect, Plaintiff is seeking to create a loophole in the Proposed Confidentiality Order,
which would permit Bak and other non-parties — including potential competitors of Capital
Carpet — to review and use Capital Carpet’s confidential information and trade secrets without
restriction as long as they were noticed for deposition or appear at trial. Again, that type of
overreaching subverts the ordinary discovery process for, apparently, ulterior motives.
As alleged in Capital Carpet’s Counterclaim, Bak already breached his contractual and
statutory obligations to protect Capital Carpet’s confidential business information and trade
secrets after leaving the company. Without adequate confidentiality protections concerning
witnesses in this action, there is a danger of additional breaches by Bak and others, resulting in
commercial harm to Capital Carpet. Nor will Bak be prejudiced by this provision. If a potential
witness refuses to agree to the Proposed Confidentiality Order, then Bak can object to the
designations or seek additional relief under the express provisions of the order. But the default
circumstances cannot allow for a witness to simply refuse to agree to the Proposed.
Confidentiality Order, thereby circumventing its protections.
The Acknowledgement. The third disagreement among the parties concerns whether
non-parties who acknowledge and agree to the Proposed Confidentiality Order should be subject
to the Court’s jurisdiction and whether that acknowledgment should remind signatories of the
potential consequences for violating a court-approved order. See Redlined Confidentiality Order
at p.11. This language should not raise any concerns; if a non-party acknowledges the Proposed
Confidentiality Order, which would be an order issued by this Court, then such non-party should
be subject to the Court’s jurisdiction for purposes of enforcement. In addition, as a matter of law,
any violation of a court order “may constitute contempt,” as explained in the Proposed
Confidentiality Order’s Acknowledgement. See generally Richard W. Bishop and Thomas B.
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Docket Number 2381CV01682
Merritt, Prima Facie Case § 63.3 (17C Mass. Prac. 5th ed.) (discussing civil contempt standard
for violation of court orders).
CONCLUSION
By reason of the above, this Court should allow Defendants’ motion and enter the
Proposed Confidentiality Order. Upon the Court’s entry of the Proposed Confidentiality Order or
an equivalent protective order, Capital Carpet will produce unredacted copies of its documents
with the appropriate designations forthwith.
Respectfully submitted,
CAPITAL CARPET AND FLOORING
SPECIALISTS, INC. and MARK
MARRAMA
By their attorneys,
/s/ Matthew P. Horvitz
Matthew P. Horvitz (BBO # 664136)
Julius A. Halstead (BBO # 705428)
GOULSTON & STORRS PC
One Post Office Square, 25" Floor
Boston, Massachusetts 02109
(617) 482-1776
mhorvitz@goulstonstorrs.com
jhalstead@goulstonstorrs.com
Dated: June 7, 2024
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Superior Court - Middlesex
Docket Number 2381CV01682
CERTIFICATE OF SERVICE
Thereby certify that on June 6, 2024, a true copy of the above document was served by
electronic mail upon the following counsel of record:
Todd Jarrett Bennett, Esq.
Michaela May, Esq.
Bennett and Belfort P.C.
24 Thorndike Street, Suite 300
Cambridge, MA 02141
tbennett@bennettandbelfort.com
mmay@bennettandbelfort.com
/s/ Matthew P. Horvitz
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Superior Court - Middlesex
Docket Number 2381CV01682
Exhibit A
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Superior Court - Middlesex
Docket Number 2381CV01682
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2381CV01682
JON BAK,
Plaintiff,
v
CAPITAL CARPET AND FLOORING
SPECIALISTS, INC. And
MARK MARRAMA,
Defendants.
STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER
The parties in the above-referenced action stipulate to this Confidentiality and Protective
Order (“Protective Order”) and agree to submit it to the Court for entry forthwith. The parties
further agree that, prior to approval by the Court, this Protective Order shall be effective when it
is approved.
1. Introduction and Scope. This Protective Order applies to documents and
information designated as CONFIDENTIAL or ATTORNEYS EYES ONLY in the above-
captioned action and produced by any party. This Protective Order also applies to documents and
information produced in this action under a court order, subpoena, or other means. The
protections afforded by this Protective Order are intended to meet the “reasonable precaution”
standards contemplated by Massachusetts Guide to Evidence § 523(c)(2).
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Docket Number 2381CV01682
2. Definition and Designation.
a. Any party may designate as CONFIDENTIAL documents and information such
party believes in good faith to be confidential, including: trade secrets and proprietary technical
information; proposed strategic transactions and agreements; financial or accounting data; sales
data; customer lists; competitive analyses; personnel files; product development information;
personal financial and tax information; marketing plans and strategies; contracts or agreements
with customers. Information is not confidential if it has been disclosed in a publicly available
publication, is known to the public, was known to the receiving party without an obligation of
confidentiality before the producing party disclosed it, or is or becomes known to the receiving
party by a means not constituting a breach of this Protective Order. Additionally, this Agreement
shall not expand or reduce a party’s discovery obligations, or other obligations pursuant to the
Rules of Civil Procedure, the Superior Court Rules, or any other applicable rules in this
litigation.
b Any party may designate as ATTORNEYS EYES ONLY information that may
constitute a trade secret under Massachusetts law upon a good-faith belief that the disclosure of
such information to persons other than counsel of record or experts and consultants would be so
materially harmful as to cause a court to order that the information not be disseminated beyond
counsel of record and their experts and consultants, or upon a good-faith belief that the
disclosure of such information to the opposing party would reveal trade secrets or other highly
sensitive, non-public proprietary or competitive information and that the protections afforded by
the CONFIDENTIAL designation are insufficient. It shall always be the producing party’s
burden to prove that an item is CONFIDENTIAL or ATTORNEYS EYES ONLY under the
terms of this Protective Order and applicable law. The parties do not anticipate or intend that
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information or documents concerning Mr. Bak’s wage claims will be designated as
ATTORNEYS EYES ONLY.
c Designating a document under this Protective Order is accomplished by clearly
and prominently marking the document CONFIDENTIAL and, if applicable, ATTORNEYS
EYES ONLY on its face. This may be accomplished by stamping each page of a document
containing such information or, if the document is an electronic document, by stamping each
printed page of such document and/or the media upon which the electronic document is recorded
with the legend CONFIDENTIAL and ATTORNEYS EYES ONLY.
d A party has the right to designate as CONFIDENTIAL and ATTORNEYS EYES
ONLY any document produced by a non-party. This is accomplished by notifying the parties and
the non-party of this designation in writing within five business days of such party's receipt of
the non-party's document. The receiving party's disclosure of the document or its contents during
the intervening time-period does not constitute a violation of this Protective Order. A party who
has designated information may withdraw its designation or provide a lesser designation by
written notification to the parties.
3. Objections to Designation. A receiving party may object to the designation of
information or material by providing written notice to the producing party. Written notice must
identify the document or information involved and contain a short statement of the grounds for
objecting to the designation. If the parties are unable to resolve any differences within five
business days after receipt of an objection, within ten (10) business days thereafter the
producing/designating party must file a motion requesting that the Court rule on the designation
of the disputed material. Disputed material shall remain designated and subject to the terms of
this Protective Order until the Court rules on the motion. In connection with any such motion, the
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burden shall be on the producing party to establish that it has properly designated the disputed
material.
4, Limit on Use and Disclosure of Designated Information. The parties and all
persons bound by the terms of this Protective Order are prohibited from using or disclosing
documents or information governed by this Protective Order except for purposes of prosecuting
or defending the above action and for no other purpose. No party or other person is authorized to
disclose or release any documents or information subject to this Protective Order to persons not
qualified to receive such documents or information.
5. Designated Material.
a. Only the following persons shall be authorized to receive or view documents,
information, or other material designated CONFIDENTIAL under this Protective Order:
1 The parties and their counsel of record and their staff;
ii. Stenographers before whom proceedings are conducted in this matter and
their staff;
iii. Experts or consultants retained by the parties or their counsel to assist in
preparing for or conducting proceedings in this matter;
iv Witnesses at depositions and trial;
v The Court, Court reporters, and Court personnel;
vi Any person agreed to in writing by the parties or ordered by the Court;
vii Any person who authored the subject document or information; and
viii Any person who received the subject document or information before this
order was agreed to by the parties or upon approval by the court.
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ix. Outside litigation counsel for Select Tile, Marble and Flooring, LLC,
contingent on such counsel’s execution of the Acknowledgement, below, and upon.
counsel’s compliance with this Agreement.
b Only the following persons shall be authorized to receive or view documents,
information, or other material designated ATTORNEYS EYES ONLY under this Protective
Order:
1 The counsel of record for the parties and their paralegals/administrative
staff or outside litigation counsel for Select Tile Marble & Flooring, LLC, contingent on
such counsel’s execution of the Acknowledgement, below, and upon counsel’s
compliance with this Agreement.
ii. Court stenographers before whom proceedings are conducted in this
matter;
iii. Experts or consultants retained by the parties or their counsel to assist in
preparing for or conducting proceedings in this matter;
iv. The Court, Court reporters, and Court personnel;
Vv. Any person agreed to in writing by the parties or ordered by the Court; and
Vi Any person who authored the subject document or information.
c Before receiving or viewing designated documents or information, each party and
each person so authorized under Section 5(a)(iti), (iv), (vi), or (ix), or 5(b)(i), (iii), or (v) must be
informed of the existence and terms of this Protective Order; instructed that they are bound by
the terms of this Protective Order; and acknowledge their agreement to be bound by the terms of
this Protective Order by executing the below Acknowledgment.
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d. Upon receipt of materials marked “ATTORNEYS EYES ONLY” counsel for the
receiving party shall cause said materials to be separated from those materials marked
“CONFIDENTIAL” or otherwise unmarked in order to avoid inadvertent disclosure of said
materials to a party.
6. Related Documents. Documents and information designated under this
Protective Order include: (a) all copies, extracts and complete or partial summaries prepared
from such documents or information; (b) portions of deposition transcripts and deposition
exhibits that contain the content of any such documents, copies, extracts, or summaries; (c)
portions of briefs, memoranda or any other writing filed with the Court and exhibits thereto that
contain the content of any such documents, copies, extracts, or summaries; and (d) deposition
testimony designated in accordance with paragraph 7 below.
7 Designation of Deposition Transcripts. Deposition testimony may be designated
under this Protective Order by any party (a) at any time during the deposition at which such
testimony is given by orally stating such on the record, or (b) within 30 days following receipt of
the deposition transcript by providing written notice to the stenographer and all counsel of
record. Any deposition testimony designated under this Protective Order must be marked
appropriately in the transcript by the stenographer and separated from the remainder of the
transcript (which shall be the burden of the designating party to ensure). All deposition
transcripts not previously designated shall be deemed CONFIDENTIAL for a period of 30 days
after the deponent's receipt of the transcript. During this period, the transcript cannot be
disclosed by a non-designating party to persons other than those named or approved in
accordance with paragraph 5 to receive or view documents or information designated
CONFIDENTIAL.
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8. Filing of Designated Information. This Protective Order does not by itself’
authorize the impoundment of documents or filing of documents under seal. If a party desires or
is required to file with the Court any documents or other materials containing or embodying
CONFIDENTIAL OR CONFIDENTIAL and ATTORNEYS EYES ONLY information, then the
party proposing such filing must provide the designating party of the subject materials with prior
notice of at least one week of the proposed filing (service via Superior Court Rule 9A will be
sufficient notice), except in the event of an emergency motion, in which case the designating
party must seek an order of impoundment within three business days in compliance with the
requirements of the Uniform Rules on Impoundment Procedure of the Massachusetts Trial Court
Rules. In the event an emergency motion is filed as noted above, all parties agree to suspend any
action that may have precipitated the filing of such motion while the issues relating to
confidentiality are sorted out (by means of example, in the event a subpoena is issued that
precipitated a motion to quash, etc.). Upon receipt of such notice, the designating party must,
within three business days, seek an order of impoundment (on an emergency basis if reasonably
requested due to an applicable deadline) in compliance with the requirements of the Uniform
Rules on Impoundment Procedure of the Massachusetts Trial Court Rules.
9. Other Protections. This Protective Order shall not preclude any party from
applying to the Court for a modification of this Protective Order.
10. Prior or Public Knowledge. This Protective Order does not apply to documents
or information that was, is, or becomes public knowledge without a violation of this Protective
Order.
11. No Waiver. The review of documents or information designated
CONFIDENTIAL or CONFIDENTIAL AND ATTORNEYS EYES ONLY by persons
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authorized to review such documents or information under this Protective Order does not waive
the confidentiality or trade secret nature of such documents or information. In addition, the
inadvertent or unintentional disclosure of documents in discovery or via a motion or opposition,
or in camera disclosure of CONFIDENTIAL or CONFIDENTIAL AND ATTONEYS EYES
ONLY documents or information does not under any circumstances constitute a waiver of any
party's claims of confidentiality or trade secrets. If a party inadvertently or unintentionally
produces any information or documents without marking or designating them as such in
accordance with the provisions of this Protective Order, that party may, promptly on discovery,
furnish a substitute copy properly marked along with written notice to all parties (or written
notice alone as to non-documentary information) that such documents or information are deemed
CONFIDENTIAL or CONFIDENTIAL AND ATTONEYS EYES ONLY and must be treated as
such in accordance with this Protective Order. Each receiving party must treat such documents
and information as CONFIDENTIAL or CONFIDENTIAL AND ATTONEYS EYES ONLY
from the date such notice is received. A party's disclosure of documents or information that are
later designated as CONFIDENTIAL or CONFIDENTIAL AND ATTONEYS EYES ONLY
before the receipt of such notice must be reported to the party making the disclosure.
12. Obligations Post Litigation.
a. At the request of the designating party, within ten business days after this action is
concluded, all documents and information designated under this Protective Order, including any
copies thereof, in the possession, custody or control of a receiving party must be destroyed or
returned to counsel for the designating party. In addition, upon request from the producing party,
counsel for the party responsible for destroying or returning materials must certify in writing to
counsel for the producing party that all such documents and information in the party's
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possession, custody or control have been destroyed or returned. Notwithstanding the foregoing,
the parties’ outside (not in house) counsel are entitled to retain one copy of any document or
other materials designated CONFIDENTIAL or CONFIDENTIAL AND ATTORNEYS EYES.
b In the event that a party selects or otherwise retains new counsel in this matter,
any materials marked ATTORNEYS EYES ONLY shall be withheld from any materials
provided to the party by former counsel unless new counsel agrees to the terms of this
Agreement. The Parties further agree that if Successor counsel does not agree to the terms of this
Agreement, the parties will resolve the matter through either a discussion or through Court
intervention.
13. No Admission. Nothing contained in this Protective Order, or any designation of
confidentiality hereunder, or any failure to make such designation, can be used or characterized
by any party as an admission. Nothing in this order can be deemed an admission that any
particular information designated is entitled to protection under this Protective Order,
Massachusetts Rule of Civil Procedure 26(c), or any other statute, rule, or law. No party waives
any right to object on any ground to the introduction or use as evidence of any of the documents,
information, or other materials covered by this Protective Order.
14, Inadvertent Disclosure.
a. Any documents produced in this action may be later designated as "Attorney-
Client Privilege" or "Attorney Work Product" promptly upon discovery by the producing party
that any such privileged or protected document was produced through inadvertence, mistake, or
other error, and no waiver of privilege or immunity shall be deemed to have occurred. Upon such
designation, the receiving party must promptly collect all such documents and copies thereof and
return them to the producing party. Notwithstanding the above, the receiving party reserves the
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right to contest the assertion of privilege or other protection with respect to any document or
information.
b. A party's production of any document or information in this action shall not, for
the purposes of this proceeding or any other proceeding in any state or federal court or before an
adjudicatory body, constitute a waiver of any privilege or protection applicable to that document
or information, including the attorney-client privilege and work product doctrine.
15. Continuing Obligations, Governing Law, and Jurisdiction. This Protective
Order shall survive the termination of this action and the protections afforded by this Protective
Order shall remain in effect until limited or terminated by the parties or the Court. This
Agreement shall be governed and construed in accordance with the laws of the Commonwealth
of Massachusetts and this Court retains jurisdiction to enforce the terms of this Protective Order,
even after the termination of this action.
AGREED TO IN FORM AND SUBSTANCE:
Matthew P. Horvitz, Esq. Todd Jarrett Bennett, Esq.
Julius A. Halstead, Esq. Michaela C. May, Esq.
GOULSTON & STORRS PC BENNETT AND BELFORT PC
One Post Office Square, 25" Floor 24 Thorndike Street, Suite 300
Boston, Massachusetts 02109 Cambridge, MA 02141
(617) 482-1776 (617) 577-8800
mhorvitz@goulstonstorrs.com tbennett@bennettandbelfort.com
jhalstead@goulstonstorrs.com mmay@bennettandbelfort.com
Attorneys for Defendants Attorneys for Plaintiff
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Docket Number 2381CV01682
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
Civil Action No. 2381CV01682
JON BAK,
Plaintiff,
v
CAPITAL CARPET AND FLOORING
SPECIALISTS, INC. and
MARK MARRAMA,
Defendants.
ACKNOWLEDGEMENT
1 Ihave been requested by counsel for to participate
and/or assist in the above-captioned action.
2 Ihave read the Confidentiality and Protective Order governing the use and
disclosure of documents and information in this action and agree to be bound by its terms as if a
signatory thereto.
3 Thereby acknowledge that the unauthorized use or disclosure of documents or
information in this action may constitute contempt and I hereby consent to the exercise of
jurisdiction by Superior Court for the purpose of enforcing the Confidentiality and Protective
Order.
Date Signature
Printed Name
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Exhibit B
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Docket Number 2381CV01682
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2381CV01682
JON BAK,
Plaintiff,
v.
CAPITAL CARPET AND FLOORING
SPECIALISTS, INC. And
MARK MARRAMA,
Defendants.
STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER
The parties in the above-referenced action stipulate to this Confidentiality and Protective
Order (“Protective Order”) and agree to submit it to the Court for entry forthwith. The parties
further agree that, prior to approval by the Court, this Protective Order shall be effective when it
is approved.
1. introduction and Scope. This Protective Order applies to documents and
information designated as CONFIDENTIAL or ATTORNEYS EYES ONLY in the above-
captioned action and produced by any party. This Protective Order also applies to documents and
information produced in this action under a court order, subpoena, or other means. The
protections afforded by this Protective Order are intended to meet the “reasonable precaution”
standards contemplated by Massachusetts Guide to Evidence § 523(c)(2).
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2, Definition and Designation.
a. Any party may designate as CONFIDENTIAL documents and information such
party believes in good faith to be confidential, including: trade secrets and proprietary technical
information; proposed strategic transactions and agreements; financial or accounting data; sales
data; customer lists; competitive analyses; personnel files; product development information;
personal financial and tax information; marketing plans and strategies; contracts or agreements
with customers. Information is not confidential if it has been disclosed in a publicly available
publication, is known to the public, was known to the receiving party without an obligation of
confidentiality before the producing party disclosed it, or is or becomes known to the receiving
party by a means not constituting a breach of this Protective Order. Additionally, this Agreement
shall not expand or reduce a party’s discovery obligations, or other obligations pursuant to the
Rules of Civil Procedure, the Superior Court Rules, or any other applicable rules in this
litigation.
b. Any party may designate as ATTORNEYS EYES ONLY information that may
constitute a trade secret under Massachusetts law upon a good-faith belief that the disclosure of
such information to persons other than counsel of record or experts and consultants would be so
materially harmful as to cause a court to order that the information not be disseminated beyond
counsel of record and their experts and consultants, or upon a good-faith belief that the
disclosure of such information to the opposing party would reveal trade secrets or other highly
sensitive, non-public proprietary or competitive information and that the protections afforded by
the CONFIDENTIAL designation are insufficient. It shall always be the producing party’s
burden to prove that an item is CONFIDENTIAL or ATTORNEYS EYES ONLY under the
terms of this Protective Order and applicable law. The parties do not anticipate or intend that
Date Filed 6/7/2024 9:44 PM
Superior Court - Middlesex
Docket Number 2381CV01682
information or documents concerning Mr. Bak’s wage claims will be designated as
ATTORNEYS EYES ONLY.
©. Designating a document under this Protective Order is accomplished by clearly
and prominently marking the document CONFIDENTIAL and, if applicable, ATTORNEYS
EYES ONLY on its face. This may be accomplished by stamping each page of a document
containing such information or, if the document is an electronic document, by stamping each
printed page of such document and/or the media upon which the electronic document is recorded
with the legend CONFIDENTIAL and ATTORNEYS EYES ONLY.
d. A party has the right to designate as CONFIDENTIAL and ATTORNEYS EYES
ONLY any document produced by a non-party. This is accomplished by notifying the parties and
the non-party of this designation in writing within five business days of such party's receipt of
the non-party's document. The receiving party's disclosure of the document or its contents during
the intervening time-period doe
Preview
Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 20.1 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 2381CV01682 JON BAK, Plaintiff, RECEIVED v CAPITAL CARPET AND FLOORING SPECIALISTS, INC., 06/07/24 Defendants. DEFENDANTS’ MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR PROTECTIVE ORDER GOVERNING THE USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION In accordance with Massachusetts Civil Procedure Rule 26(c) and Superior Court Rule 9A(d), Defendants Capital Carpet and Flooring Specialists, Inc. (“Capital Carpet”) and Mark Marrama respectfully request entry of a protective order governing the use and disclosure of confidential information in this action. Defendants’ proposed protective order is attached as Exhibit A (the “Proposed Confidentiality Order’). The disputed issues among the parties are redlined in the version of that order attached as Exhibit B (the “Redlined Confidentiality Order”). Defendants move for entry of the Proposed Confidentiality Order on an emergency basis for two reasons: 1 First, after meeting and conferring on several occasions, and continuing to discuss the contents of the Proposed Confidentiality Order through email and the exchange of multiple revised drafts of the same, the parties have reached on impasse on three specific issues: . Plaintiff has demanded that any information produced under Proposed Confidentiality Order remain available for use outside of this particular lawsuit in “any class or collective action involving wage act related issues reasonably similar to those addressed [in this lawsuit.]” (emphasis added). JB Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 . Plaintiff has refused to require that witnesses at depositions or trial agree to maintain the confidentiality of documents properly designated under the Proposed Confidentiality Order. Plaintiff has refused to include language in the non-party acknowledgement to Proposed Confidentiality Order that brings signatories within the Court’s jurisdiction and reminds signatories of the potential consequences for violating a court order. Plaintiff's required changes to the Proposed Confidentiality Order are unreasonable and exceed the scope of Massachusetts Civil Procedure Rule 26(f)(3)(H), which allows this Court to enter orders allowing for the assertion or preservation of confidentiality and the proprietary status of information relating to the parties and non-parties. Despite requests to Plaintiff's counsel from the undersigned, Plaintiff has failed to provide any basis — legitimate or otherwise — for the three positions he has taken on the Proposed Confidentiality Order, supra. While these items appear minor, they involve significant issues, detailed below. Unfortunately, this impasse now requires judicial intervention. 2. Second, the Court entered an order on May 23, 2024, which requires Defendants to produce supplemental discovery responses and documents by June 7, 2024. Defendants have satisfied that deadline, but the lack of an agreement on adequate confidentiality protections has forced Capital Carpet to redact confidential business information and trade secrets contained in its document production. Upon the Court’s entry of the Proposed Confidentiality Order or an equivalent protective order, Capital Carpet will produce unredacted copies of those documents with the appropriate designations forthwith. For this reason, Defendants seek entry of the Proposed Confidentiality Order on an emergency basis. Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 FACTUAL BACKGROUND In this dispute, Plaintiff Jon Bak alleges violations of the Massachusetts Wage Act and related contract and quasi-contract claims against Capital Carpet, his former employer. See generally Paper No. 1. Bak alleges that Capital Carpet owes him commissions for flooring projects that he sold while employed with the company. Capital Carpet, however, has denied these allegations because it paid Bak all commissions currently due to him. After abruptly resigning from his employment, Bak began working for a competitor of Capital Carpet in the commercial flooring sales and installation industry. On behalf of his new employer, Bak began bidding on the same projects for which he had prepared bids and estimates while with Capital Carpet. This allowed Bak to “bid against himself” and beat his prior project estimates, thereby using Capital Carpet’s confidential information and trade secrets. In response, Capital Carpet asserted a two-count counterclaim against Bak based on his breach of restrictive covenants and violations of the Massachusetts Uniform Trade Secrets Act. See generally Paper No. 13. In discovery, a significant number of Bak’s document requests seek materials and information from Capital Carpet containing confidential business information and trade secrets. On or about May 23, 2024, the Court entered an order requiring Defendants to produce supplemental discovery responses and documents by June 7, 2024. To facilitate the production of those documents, the parties discussed the entry of a confidentiality order governing the use and disclosure of confidential information. After multiple discussions among the parties and their exchange of draft confidentiality orders both prior and subsequent to the May 23, 2024 order, the parties reached an impasse on three specific issues, which are addressed below. Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 Now, Defendants have satisfied their June 7, 2024 deadline to supplement their discovery responses and produce documents; however, the lack of an agreement on the Proposed Confidentiality Order required Capital Carpet to redact certain confidential business information and trade secrets contained in its document production and to move for entry of the Proposed Continentality Order on an emergency basis. ARGUMENT “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending” may make any order “that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way[.]” Mass. R. Civ. P. 26(c). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Trustees v. Magill, No. 0201027, 2006 WL 1075588, at *2 (Mass. Super. Mar. 23, 2006) (citing Beckman Indus., v. International Ins. Co., 966 F.2d 470, 476 (9th Cir.1992)). Here, good cause exists to warrant the entry of the Proposed Confidentiality Order. Indeed, the parties have agreed on virtually all language and provisions in the Proposed Confidentiality Order, except as indicated in this memorandum. See Ex. B. The entry of a confidentiality order is typical in these types of cases, especially where one party (here, Capital Carpet) alleges that its confidential business information and trade secrets have been misused and misappropriated by a former employee, namely, Bak. The potential harm and prejudice that Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 Capital Carpet will suffer without confidentiality protections is significant, potentially leading to the unprotected disclosure of its protectible business information! Use in Other Proceedings. The first disagreement among the parties concerns whether documents and other materials produced in discovery and designated as “confidential” or “attorneys’ eyes only” may be used in future, separate “similar” lawsuits, potentially involving other parties. See Redlined Confidentiality Order at p.4 (Plaintiff's counsel — “TBennett” — refusing to delete language limited use of documents to this action only). Before filing this emergency motion, the undersigned counsel requested the grounds for such an unusual and prejudicial request, as well as any authorities that would support it. To date, and after a telephone conversation on June 7, 2024, the Plaintiff's counsel has failed to provide any such bases or authorities. Capital Carpet cannot agree that documents and information it considers confidential or trade secret may be used by the Plaintiff's attorneys or others to prosecute unspecified future lawsuits. That type of overreaching subverts the ordinary discovery process for, apparently, ulterior motives. Rather, as provided in the Proposed Confidentiality Order, the use of discovery materials produced in this lawsuit should be limited to this action only. Witness Agreement with Confidentiality Obligations. The second disagreement among the parties concerns whether witnesses at depositions or trial should be required to acknowledge and agree to the terms of the Proposed Confidentiality Order before receiving confidential information. See Redlined Confidentiality Order at p.5. ' A detailed discussion about Capital Carpet’s confidential business information and trade secrets is found in its Opposition to Plaintiffs Motion to Dismiss Amended Counterclaim (Paper No. #17.2), which is hereby incorporated by reference. Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 In effect, Plaintiff is seeking to create a loophole in the Proposed Confidentiality Order, which would permit Bak and other non-parties — including potential competitors of Capital Carpet — to review and use Capital Carpet’s confidential information and trade secrets without restriction as long as they were noticed for deposition or appear at trial. Again, that type of overreaching subverts the ordinary discovery process for, apparently, ulterior motives. As alleged in Capital Carpet’s Counterclaim, Bak already breached his contractual and statutory obligations to protect Capital Carpet’s confidential business information and trade secrets after leaving the company. Without adequate confidentiality protections concerning witnesses in this action, there is a danger of additional breaches by Bak and others, resulting in commercial harm to Capital Carpet. Nor will Bak be prejudiced by this provision. If a potential witness refuses to agree to the Proposed Confidentiality Order, then Bak can object to the designations or seek additional relief under the express provisions of the order. But the default circumstances cannot allow for a witness to simply refuse to agree to the Proposed. Confidentiality Order, thereby circumventing its protections. The Acknowledgement. The third disagreement among the parties concerns whether non-parties who acknowledge and agree to the Proposed Confidentiality Order should be subject to the Court’s jurisdiction and whether that acknowledgment should remind signatories of the potential consequences for violating a court-approved order. See Redlined Confidentiality Order at p.11. This language should not raise any concerns; if a non-party acknowledges the Proposed Confidentiality Order, which would be an order issued by this Court, then such non-party should be subject to the Court’s jurisdiction for purposes of enforcement. In addition, as a matter of law, any violation of a court order “may constitute contempt,” as explained in the Proposed Confidentiality Order’s Acknowledgement. See generally Richard W. Bishop and Thomas B. Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 Merritt, Prima Facie Case § 63.3 (17C Mass. Prac. 5th ed.) (discussing civil contempt standard for violation of court orders). CONCLUSION By reason of the above, this Court should allow Defendants’ motion and enter the Proposed Confidentiality Order. Upon the Court’s entry of the Proposed Confidentiality Order or an equivalent protective order, Capital Carpet will produce unredacted copies of its documents with the appropriate designations forthwith. Respectfully submitted, CAPITAL CARPET AND FLOORING SPECIALISTS, INC. and MARK MARRAMA By their attorneys, /s/ Matthew P. Horvitz Matthew P. Horvitz (BBO # 664136) Julius A. Halstead (BBO # 705428) GOULSTON & STORRS PC One Post Office Square, 25" Floor Boston, Massachusetts 02109 (617) 482-1776 mhorvitz@goulstonstorrs.com jhalstead@goulstonstorrs.com Dated: June 7, 2024 Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 CERTIFICATE OF SERVICE Thereby certify that on June 6, 2024, a true copy of the above document was served by electronic mail upon the following counsel of record: Todd Jarrett Bennett, Esq. Michaela May, Esq. Bennett and Belfort P.C. 24 Thorndike Street, Suite 300 Cambridge, MA 02141 tbennett@bennettandbelfort.com mmay@bennettandbelfort.com /s/ Matthew P. Horvitz Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 Exhibit A Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 2381CV01682 JON BAK, Plaintiff, v CAPITAL CARPET AND FLOORING SPECIALISTS, INC. And MARK MARRAMA, Defendants. STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER The parties in the above-referenced action stipulate to this Confidentiality and Protective Order (“Protective Order”) and agree to submit it to the Court for entry forthwith. The parties further agree that, prior to approval by the Court, this Protective Order shall be effective when it is approved. 1. Introduction and Scope. This Protective Order applies to documents and information designated as CONFIDENTIAL or ATTORNEYS EYES ONLY in the above- captioned action and produced by any party. This Protective Order also applies to documents and information produced in this action under a court order, subpoena, or other means. The protections afforded by this Protective Order are intended to meet the “reasonable precaution” standards contemplated by Massachusetts Guide to Evidence § 523(c)(2). Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 2. Definition and Designation. a. Any party may designate as CONFIDENTIAL documents and information such party believes in good faith to be confidential, including: trade secrets and proprietary technical information; proposed strategic transactions and agreements; financial or accounting data; sales data; customer lists; competitive analyses; personnel files; product development information; personal financial and tax information; marketing plans and strategies; contracts or agreements with customers. Information is not confidential if it has been disclosed in a publicly available publication, is known to the public, was known to the receiving party without an obligation of confidentiality before the producing party disclosed it, or is or becomes known to the receiving party by a means not constituting a breach of this Protective Order. Additionally, this Agreement shall not expand or reduce a party’s discovery obligations, or other obligations pursuant to the Rules of Civil Procedure, the Superior Court Rules, or any other applicable rules in this litigation. b Any party may designate as ATTORNEYS EYES ONLY information that may constitute a trade secret under Massachusetts law upon a good-faith belief that the disclosure of such information to persons other than counsel of record or experts and consultants would be so materially harmful as to cause a court to order that the information not be disseminated beyond counsel of record and their experts and consultants, or upon a good-faith belief that the disclosure of such information to the opposing party would reveal trade secrets or other highly sensitive, non-public proprietary or competitive information and that the protections afforded by the CONFIDENTIAL designation are insufficient. It shall always be the producing party’s burden to prove that an item is CONFIDENTIAL or ATTORNEYS EYES ONLY under the terms of this Protective Order and applicable law. The parties do not anticipate or intend that Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 information or documents concerning Mr. Bak’s wage claims will be designated as ATTORNEYS EYES ONLY. c Designating a document under this Protective Order is accomplished by clearly and prominently marking the document CONFIDENTIAL and, if applicable, ATTORNEYS EYES ONLY on its face. This may be accomplished by stamping each page of a document containing such information or, if the document is an electronic document, by stamping each printed page of such document and/or the media upon which the electronic document is recorded with the legend CONFIDENTIAL and ATTORNEYS EYES ONLY. d A party has the right to designate as CONFIDENTIAL and ATTORNEYS EYES ONLY any document produced by a non-party. This is accomplished by notifying the parties and the non-party of this designation in writing within five business days of such party's receipt of the non-party's document. The receiving party's disclosure of the document or its contents during the intervening time-period does not constitute a violation of this Protective Order. A party who has designated information may withdraw its designation or provide a lesser designation by written notification to the parties. 3. Objections to Designation. A receiving party may object to the designation of information or material by providing written notice to the producing party. Written notice must identify the document or information involved and contain a short statement of the grounds for objecting to the designation. If the parties are unable to resolve any differences within five business days after receipt of an objection, within ten (10) business days thereafter the producing/designating party must file a motion requesting that the Court rule on the designation of the disputed material. Disputed material shall remain designated and subject to the terms of this Protective Order until the Court rules on the motion. In connection with any such motion, the Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 burden shall be on the producing party to establish that it has properly designated the disputed material. 4, Limit on Use and Disclosure of Designated Information. The parties and all persons bound by the terms of this Protective Order are prohibited from using or disclosing documents or information governed by this Protective Order except for purposes of prosecuting or defending the above action and for no other purpose. No party or other person is authorized to disclose or release any documents or information subject to this Protective Order to persons not qualified to receive such documents or information. 5. Designated Material. a. Only the following persons shall be authorized to receive or view documents, information, or other material designated CONFIDENTIAL under this Protective Order: 1 The parties and their counsel of record and their staff; ii. Stenographers before whom proceedings are conducted in this matter and their staff; iii. Experts or consultants retained by the parties or their counsel to assist in preparing for or conducting proceedings in this matter; iv Witnesses at depositions and trial; v The Court, Court reporters, and Court personnel; vi Any person agreed to in writing by the parties or ordered by the Court; vii Any person who authored the subject document or information; and viii Any person who received the subject document or information before this order was agreed to by the parties or upon approval by the court. Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 ix. Outside litigation counsel for Select Tile, Marble and Flooring, LLC, contingent on such counsel’s execution of the Acknowledgement, below, and upon. counsel’s compliance with this Agreement. b Only the following persons shall be authorized to receive or view documents, information, or other material designated ATTORNEYS EYES ONLY under this Protective Order: 1 The counsel of record for the parties and their paralegals/administrative staff or outside litigation counsel for Select Tile Marble & Flooring, LLC, contingent on such counsel’s execution of the Acknowledgement, below, and upon counsel’s compliance with this Agreement. ii. Court stenographers before whom proceedings are conducted in this matter; iii. Experts or consultants retained by the parties or their counsel to assist in preparing for or conducting proceedings in this matter; iv. The Court, Court reporters, and Court personnel; Vv. Any person agreed to in writing by the parties or ordered by the Court; and Vi Any person who authored the subject document or information. c Before receiving or viewing designated documents or information, each party and each person so authorized under Section 5(a)(iti), (iv), (vi), or (ix), or 5(b)(i), (iii), or (v) must be informed of the existence and terms of this Protective Order; instructed that they are bound by the terms of this Protective Order; and acknowledge their agreement to be bound by the terms of this Protective Order by executing the below Acknowledgment. Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 d. Upon receipt of materials marked “ATTORNEYS EYES ONLY” counsel for the receiving party shall cause said materials to be separated from those materials marked “CONFIDENTIAL” or otherwise unmarked in order to avoid inadvertent disclosure of said materials to a party. 6. Related Documents. Documents and information designated under this Protective Order include: (a) all copies, extracts and complete or partial summaries prepared from such documents or information; (b) portions of deposition transcripts and deposition exhibits that contain the content of any such documents, copies, extracts, or summaries; (c) portions of briefs, memoranda or any other writing filed with the Court and exhibits thereto that contain the content of any such documents, copies, extracts, or summaries; and (d) deposition testimony designated in accordance with paragraph 7 below. 7 Designation of Deposition Transcripts. Deposition testimony may be designated under this Protective Order by any party (a) at any time during the deposition at which such testimony is given by orally stating such on the record, or (b) within 30 days following receipt of the deposition transcript by providing written notice to the stenographer and all counsel of record. Any deposition testimony designated under this Protective Order must be marked appropriately in the transcript by the stenographer and separated from the remainder of the transcript (which shall be the burden of the designating party to ensure). All deposition transcripts not previously designated shall be deemed CONFIDENTIAL for a period of 30 days after the deponent's receipt of the transcript. During this period, the transcript cannot be disclosed by a non-designating party to persons other than those named or approved in accordance with paragraph 5 to receive or view documents or information designated CONFIDENTIAL. Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 8. Filing of Designated Information. This Protective Order does not by itself’ authorize the impoundment of documents or filing of documents under seal. If a party desires or is required to file with the Court any documents or other materials containing or embodying CONFIDENTIAL OR CONFIDENTIAL and ATTORNEYS EYES ONLY information, then the party proposing such filing must provide the designating party of the subject materials with prior notice of at least one week of the proposed filing (service via Superior Court Rule 9A will be sufficient notice), except in the event of an emergency motion, in which case the designating party must seek an order of impoundment within three business days in compliance with the requirements of the Uniform Rules on Impoundment Procedure of the Massachusetts Trial Court Rules. In the event an emergency motion is filed as noted above, all parties agree to suspend any action that may have precipitated the filing of such motion while the issues relating to confidentiality are sorted out (by means of example, in the event a subpoena is issued that precipitated a motion to quash, etc.). Upon receipt of such notice, the designating party must, within three business days, seek an order of impoundment (on an emergency basis if reasonably requested due to an applicable deadline) in compliance with the requirements of the Uniform Rules on Impoundment Procedure of the Massachusetts Trial Court Rules. 9. Other Protections. This Protective Order shall not preclude any party from applying to the Court for a modification of this Protective Order. 10. Prior or Public Knowledge. This Protective Order does not apply to documents or information that was, is, or becomes public knowledge without a violation of this Protective Order. 11. No Waiver. The review of documents or information designated CONFIDENTIAL or CONFIDENTIAL AND ATTORNEYS EYES ONLY by persons Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 authorized to review such documents or information under this Protective Order does not waive the confidentiality or trade secret nature of such documents or information. In addition, the inadvertent or unintentional disclosure of documents in discovery or via a motion or opposition, or in camera disclosure of CONFIDENTIAL or CONFIDENTIAL AND ATTONEYS EYES ONLY documents or information does not under any circumstances constitute a waiver of any party's claims of confidentiality or trade secrets. If a party inadvertently or unintentionally produces any information or documents without marking or designating them as such in accordance with the provisions of this Protective Order, that party may, promptly on discovery, furnish a substitute copy properly marked along with written notice to all parties (or written notice alone as to non-documentary information) that such documents or information are deemed CONFIDENTIAL or CONFIDENTIAL AND ATTONEYS EYES ONLY and must be treated as such in accordance with this Protective Order. Each receiving party must treat such documents and information as CONFIDENTIAL or CONFIDENTIAL AND ATTONEYS EYES ONLY from the date such notice is received. A party's disclosure of documents or information that are later designated as CONFIDENTIAL or CONFIDENTIAL AND ATTONEYS EYES ONLY before the receipt of such notice must be reported to the party making the disclosure. 12. Obligations Post Litigation. a. At the request of the designating party, within ten business days after this action is concluded, all documents and information designated under this Protective Order, including any copies thereof, in the possession, custody or control of a receiving party must be destroyed or returned to counsel for the designating party. In addition, upon request from the producing party, counsel for the party responsible for destroying or returning materials must certify in writing to counsel for the producing party that all such documents and information in the party's Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 possession, custody or control have been destroyed or returned. Notwithstanding the foregoing, the parties’ outside (not in house) counsel are entitled to retain one copy of any document or other materials designated CONFIDENTIAL or CONFIDENTIAL AND ATTORNEYS EYES. b In the event that a party selects or otherwise retains new counsel in this matter, any materials marked ATTORNEYS EYES ONLY shall be withheld from any materials provided to the party by former counsel unless new counsel agrees to the terms of this Agreement. The Parties further agree that if Successor counsel does not agree to the terms of this Agreement, the parties will resolve the matter through either a discussion or through Court intervention. 13. No Admission. Nothing contained in this Protective Order, or any designation of confidentiality hereunder, or any failure to make such designation, can be used or characterized by any party as an admission. Nothing in this order can be deemed an admission that any particular information designated is entitled to protection under this Protective Order, Massachusetts Rule of Civil Procedure 26(c), or any other statute, rule, or law. No party waives any right to object on any ground to the introduction or use as evidence of any of the documents, information, or other materials covered by this Protective Order. 14, Inadvertent Disclosure. a. Any documents produced in this action may be later designated as "Attorney- Client Privilege" or "Attorney Work Product" promptly upon discovery by the producing party that any such privileged or protected document was produced through inadvertence, mistake, or other error, and no waiver of privilege or immunity shall be deemed to have occurred. Upon such designation, the receiving party must promptly collect all such documents and copies thereof and return them to the producing party. Notwithstanding the above, the receiving party reserves the Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 right to contest the assertion of privilege or other protection with respect to any document or information. b. A party's production of any document or information in this action shall not, for the purposes of this proceeding or any other proceeding in any state or federal court or before an adjudicatory body, constitute a waiver of any privilege or protection applicable to that document or information, including the attorney-client privilege and work product doctrine. 15. Continuing Obligations, Governing Law, and Jurisdiction. This Protective Order shall survive the termination of this action and the protections afforded by this Protective Order shall remain in effect until limited or terminated by the parties or the Court. This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts and this Court retains jurisdiction to enforce the terms of this Protective Order, even after the termination of this action. AGREED TO IN FORM AND SUBSTANCE: Matthew P. Horvitz, Esq. Todd Jarrett Bennett, Esq. Julius A. Halstead, Esq. Michaela C. May, Esq. GOULSTON & STORRS PC BENNETT AND BELFORT PC One Post Office Square, 25" Floor 24 Thorndike Street, Suite 300 Boston, Massachusetts 02109 Cambridge, MA 02141 (617) 482-1776 (617) 577-8800 mhorvitz@goulstonstorrs.com tbennett@bennettandbelfort.com jhalstead@goulstonstorrs.com mmay@bennettandbelfort.com Attorneys for Defendants Attorneys for Plaintiff Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT Civil Action No. 2381CV01682 JON BAK, Plaintiff, v CAPITAL CARPET AND FLOORING SPECIALISTS, INC. and MARK MARRAMA, Defendants. ACKNOWLEDGEMENT 1 Ihave been requested by counsel for to participate and/or assist in the above-captioned action. 2 Ihave read the Confidentiality and Protective Order governing the use and disclosure of documents and information in this action and agree to be bound by its terms as if a signatory thereto. 3 Thereby acknowledge that the unauthorized use or disclosure of documents or information in this action may constitute contempt and I hereby consent to the exercise of jurisdiction by Superior Court for the purpose of enforcing the Confidentiality and Protective Order. Date Signature Printed Name Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 Exhibit B Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 2381CV01682 JON BAK, Plaintiff, v. CAPITAL CARPET AND FLOORING SPECIALISTS, INC. And MARK MARRAMA, Defendants. STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER The parties in the above-referenced action stipulate to this Confidentiality and Protective Order (“Protective Order”) and agree to submit it to the Court for entry forthwith. The parties further agree that, prior to approval by the Court, this Protective Order shall be effective when it is approved. 1. introduction and Scope. This Protective Order applies to documents and information designated as CONFIDENTIAL or ATTORNEYS EYES ONLY in the above- captioned action and produced by any party. This Protective Order also applies to documents and information produced in this action under a court order, subpoena, or other means. The protections afforded by this Protective Order are intended to meet the “reasonable precaution” standards contemplated by Massachusetts Guide to Evidence § 523(c)(2). Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 2, Definition and Designation. a. Any party may designate as CONFIDENTIAL documents and information such party believes in good faith to be confidential, including: trade secrets and proprietary technical information; proposed strategic transactions and agreements; financial or accounting data; sales data; customer lists; competitive analyses; personnel files; product development information; personal financial and tax information; marketing plans and strategies; contracts or agreements with customers. Information is not confidential if it has been disclosed in a publicly available publication, is known to the public, was known to the receiving party without an obligation of confidentiality before the producing party disclosed it, or is or becomes known to the receiving party by a means not constituting a breach of this Protective Order. Additionally, this Agreement shall not expand or reduce a party’s discovery obligations, or other obligations pursuant to the Rules of Civil Procedure, the Superior Court Rules, or any other applicable rules in this litigation. b. Any party may designate as ATTORNEYS EYES ONLY information that may constitute a trade secret under Massachusetts law upon a good-faith belief that the disclosure of such information to persons other than counsel of record or experts and consultants would be so materially harmful as to cause a court to order that the information not be disseminated beyond counsel of record and their experts and consultants, or upon a good-faith belief that the disclosure of such information to the opposing party would reveal trade secrets or other highly sensitive, non-public proprietary or competitive information and that the protections afforded by the CONFIDENTIAL designation are insufficient. It shall always be the producing party’s burden to prove that an item is CONFIDENTIAL or ATTORNEYS EYES ONLY under the terms of this Protective Order and applicable law. The parties do not anticipate or intend that Date Filed 6/7/2024 9:44 PM Superior Court - Middlesex Docket Number 2381CV01682 information or documents concerning Mr. Bak’s wage claims will be designated as ATTORNEYS EYES ONLY. ©. Designating a document under this Protective Order is accomplished by clearly and prominently marking the document CONFIDENTIAL and, if applicable, ATTORNEYS EYES ONLY on its face. This may be accomplished by stamping each page of a document containing such information or, if the document is an electronic document, by stamping each printed page of such document and/or the media upon which the electronic document is recorded with the legend CONFIDENTIAL and ATTORNEYS EYES ONLY. d. A party has the right to designate as CONFIDENTIAL and ATTORNEYS EYES ONLY any document produced by a non-party. This is accomplished by notifying the parties and the non-party of this designation in writing within five business days of such party's receipt of the non-party's document. The receiving party's disclosure of the document or its contents during the intervening time-period doe