Bay Equity LLC v. Total Mortgage Services, LLC et al

Filing 66

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. Bay Equity's Second Motion to Compel Discovery 57 is GRANTED IN PART and DENIED IN PART. Please see attached. (Kelly, Danielle)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
BAY EQUITY LLC,
Plaintiff,
v.
TOTAL MORTGAGE SERVICES, LLC
and STEVEN SIRMAIAN,
Defendants.

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Civil Action No. 1:20-cv-10693-IT

MEMORANDUM & ORDER
TALWANI, D.J.

September 9, 2021

Pending before the court is Plaintiff Bay Equity LLC’s (“Bay Equity”) Second Motion to
Compel Discovery [#57]. For the following reasons, the motion is GRANTED IN PART and
DENIED IN PART.
I.

Factual Allegations
Bay Equity’s factual allegations were laid out in detail in the court’s Memorandum &

Order [#35] granting Denise Peach’s Motion to Dismiss for Fraudulent Joinder [#13]. They are
repeated here in abbreviated form.
Plaintiff Bay Equity and Defendant Total Mortgage Services, LLC (“Total Mortgage”)
are direct competitors in the retail mortgage lending industry. Am. Compl. ¶ 10 [#3-1]. Village
Mortgage Company (“Village”) was a regional mortgage lender operating in the Northeast. Id. at
¶ 3. Defendant Steven Sirmaian was a Village employee. Id. at ¶ 11.
In December 2018, Sirmaian and a dozen other employees left Village to join Total
Mortgage. Id. at ¶¶ 45-46. In April 2019, several additional employees left Village to join Total

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Mortgage. Id. at ¶ 46. Bay Equity characterizes both sets of departures as “coordinated lift-outs”
by Total Mortgage and Sirmaian. Id. at ¶¶ 44, 46.
In July 2019, Bay Equity effected a limited asset purchase of Village and hired many of
its remaining employees. Id. at ¶ 3. As a condition of employment, Bay Equity required many of
the former Village employees to sign restrictive covenants that included a “no-raid” provision, a
non-solicitation clause, and a non-disclosure clause covering Bay Equity’s confidential
information. Id. at ¶¶ 37–40. Bay Equity asserts that after the purchase, sixteen Bay Equity
employees left to join Total Mortgage, including nine on February 21, 2020. Id. at ¶¶ 51-52. Bay
Equity also alleges that Total Mortgage and Sirmaian coordinated these resignations. Id. at
¶¶ 52-53.
In addition, Bay Equity alleges that former Bay Equity employees brought Bay Equity’s
confidential information with them to Total Mortgage. Id. at ¶¶ 5, 18, 60–62. Several former Bay
Equity employees then allegedly used this confidential information to move Bay Equity’s
borrowers over to Total Mortgage—including, in some cases, without the borrower’s knowledge
or consent—and to process loans for the borrowers. Id. at ¶¶ 64–66.
Defendants counter that “Total Mortgage legitimately and legally hired employees from
one of its competitors, because they no longer wanted to work at Bay Equity” and that “Sirmaian
had virtually nothing to do with the recruitment or hiring of the employees that moved from Bay
Equity to Total Mortgage.” Defs’ Opp. 1-2 [#59]. They also deny knowing about the restrictive
covenants in the former Bay Equity employees’ contracts and deny taking any of Bay Equity’s
confidential information. Id. at 14.

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II.

Standard of Review
The scope of discovery is governed by Federal Rule of Civil Procedure 26(b)(1), which

provides, in relevant part, that “[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2)(B) allows a party resisting
production of electronically stored information (“ESI”) to avoid production if such ESI is not
reasonably accessible because of undue burden or cost. Fed. R. Civ. P. 26(b)(2)(B).
Federal Rule of Civil Procedure 34 governs requests for production of documents, ESI,
and tangible things. Fed. R. Civ. P. 34. Federal Rule of Civil Procedure 37(a) governs motions to
compel discovery responses. Fed. R. Civ. P. 37(a). Rule 37(a)(3)(B) provides that a party seeking
discovery may move for an order compelling production or answers against another party when
the latter has failed to produce documents requested under Rule 34. Fed. R. Civ. P.
37(a)(3)(B)(iv).
However, the court has “broad discretion to manage discovery matters,” Heidelberg
Ams., Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003), and may decline to
compel. In addition, the court must “limit discovery if it determines that the discovery sought is
(1) unreasonably cumulative or duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample
opportunity by discovery in the action to obtain the information sought; or (3) the burden or
expense of the proposed discovery outweighs its likely benefit, taking into account the needs of

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the case, the amount in controversy, the parties’ resources, the importance of the issues at stake
in the litigation, and the importance of the projected discovery in resolving the issues.” In re New
England Compounding Pharmacy, Inc. Prods. Liab. Litig., No. 13-cv-02419, 2014 WL
12814933, at *2 (D. Mass. Feb. 7, 2014); see also Fed. R. Civ. P. 26(b)(2)(C).
III.

Discussion
In its Second Motion to Compel Discovery [#57], Bay Equity claims that Total Mortgage

and Sirmaian “have asserted baseless objections in their written responses [to Bay Equity’s
requests for the production of documents] that interfere with Bay Equity’s ability to obtain the
documents necessary to pursue its claims.” Second Mot. to Compel [#57]. Bay Equity seeks a
court order overruling Defendants’ objections and requiring them to produce documents
responsive to its requests. Pl’s Mem. 2 [#58].
A.

Inclusion of Village in Bay Equity Definitions

Bay Equity first seeks an order overruling Defendants’ General Objection No. 4 to Bay
Equity’s requests for production. Id. at 7-8. General Objection No. 4 states that Defendants
specifically object[] to the definitions [contained in Bay Equity’s requests for production
of documents] to the extent that they seek to include Village Mortgage Company
(“Village”), which is not a party to this action, with the Plaintiff Bay Equity LLC (“Bay
Equity”). Because Village is not a party to this action, the hiring of any Village
employees has no relevance to this action.
Total Mortgage Resp. 2 [#58-3]; Sirmaian Resp. 2 [#58-4].
Bay Equity takes issue with this objection and explains that, as a “compromise,” it
limited its definition of “former employees”—which originally included those who went directly
from Village to Total Mortgage—and “employment agreements” to only those individuals who
were at some point employed by Bay Equity and their employment agreements with Bay Equity.
Pl’s Mem. 8 [#58]. Based on this change, Bay Equity requested that Defendants withdraw their

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general objection, but they refused to do so. Id. at 8. Bay Equity therefore asks the court to
overrule the objection. Id.
Bay Equity has not, however, moved to compel responses to any specific requests for
production if the objection is overruled (except as discussed below). Rule 37 provides a
mechanism for compelling responses, not addressing objections in the abstract. Bay Equity’s
motion that the court overrule Defendants’ General Objection No. 4 is accordingly denied, and
the court turns to the individual requests for production at issue.
B.

Documents Responsive to Requests Related to Village’s “Confidential
Information” and “Borrowers”

Bay Equity moves to compel documents responsive to Requests for Production Nos. 2022, 27-29, 31, 56, 63-67, and 102 to Total Mortgage and Nos. 20-22, 27-29, 31, 51, 58-62, and
96 to Sirmaian. Proposed Order [#57-1]. Defendants object to these requests insofar as they
contain the term “Confidential Information,” which Bay Equity has defined as follows:
The term “Confidential Information” means any nonpublic information that relates to
Bay Equity and/or Village’s business and was created, collected, and/or maintained
(including by any of the Former Employees) for the purpose of conducting business at or
on behalf of Bay Equity and/or Village. For avoidance of doubt, Confidential Information
includes borrower information (including borrower identities, borrower lists, borrower
contact information and personally identifiable information, information related to
borrowers’ needs and preferences, information related to borrowers’ personal finances
and credit reports, information related to borrowers’ specific loan terms or offerings by
Bay Equity and/or Village, and information contained in and relating to borrowers’ loan
files). Confidential Information encompasses the type of information described above
regardless of where it was stored (e.g., whether on Bay Equity’s or Village’s physical
premises or systems, the Former Employees’ Bay Equity or Village devices and/or email
accounts, third-party hosting platforms (including Floify), or in the Former Employees’
memories).
Total Mortgage Req. for Prod. 4 [#58-1]; Sirmaian Req. for Prod. 3-4 [#58-2]. Specifically,
Defendants argue that Bay Equity’s definition of “Confidential Information” includes

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information relevant only to Village, not Bay Equity, and that the requests for production are
therefore overbroad. Defs’ Opp. 4-5 [#59].
By way of example, Request for Production No. 22 to Total Mortgage seeks:
REQUEST NO. 22: All documents and things concerning any strategy, plan, or effort
by, between, or among any of the Defendants and/or Former Employees to acquire,
retain, disclose, disseminate, or use any Confidential Information at or on behalf of Total
Mortgage.
Total Mortgage Req. for Prod. 13 [#58-1]. Where “Confidential Information” includes
“information that relates to . . . Village’s business and was created, collected, and/or maintained
(including by any of the Former Employees) for the purpose of conducting business at or on
behalf of . . . Village,” the court agrees with Defendants that such a request is overbroad.
However, confidential information that Bay Equity purchased from Village is properly
included in Bay Equity’s definition. Defendants argue that the Amended Complaint [#3-1]
contains no allegation that Bay Equity purchased any confidential information from Village; that
Bay Equity’s initial disclosures asserted protection only of “Bay Equity’s referral network,”
“Bay Equity’s borrowers,” and “Bay Equity’s Internal Marketing Plans and Strategies”; and that
not having asserted any claim on Village’s confidential information in its initial disclosures, Bay
Equity cannot now rely on counsel’s assertions that such information was transferred to broaden
the scope of discovery to information taken directly from Village. Defs’ Opp. 6[#59]. Bay Equity
replies that it disclosed the categories of its trade secrets but was under no obligation to disclose
the sources of those trade secrets. Reply 2 [#62]. It also contends that “a ruling that none of the
information or borrowers that Bay Equity purchased from Village can be considered Bay
Equity’s information in this action would fundamentally alter the scope of [its] claims” and that,
in the interest of fairness, such a contention should be made in a separate motion to allow Bay
Equity the opportunity to respond more thoroughly. Id. at 4.
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The court agrees that Bay Equity was not required in its Amended Complaint [#3-1] to
specifically allege that it purchased confidential information from Village. The Amended
Complaint [#3-1] alleges that former Bay Equity employees brought Bay Equity’s confidential
information with them to Total Mortgage and that Total Mortgage then misused that information.
Am. Compl. ¶¶ 62-69 [#3-1]. To the extent that Bay Equity purchased confidential information
from Village, that information became Bay Equity’s confidential information and is covered by
the allegation. It is therefore also covered by any request for production of documents related to
Bay Equity’s confidential information.
Bay Equity also moves to compel documents responsive to Requests for Production Nos.
33-42, 55, 65-65, 100, and 105 to Total Mortgage and Nos. 33-40, 50, 59-60, and 94 to Sirmaian,
Proposed Order [#57-1]. Defendants lodge a similar objection to these requests based on their
inclusion of the term “Borrowers,” which Bay Equity has defined as “any past, present, or
prospective client of Bay Equity and/or Village.” Total Mortgage Req. for Prod. 4 [#58-1];
Sirmaian Req. for Prod. 4 [#58-2]. For example, in Request for Production No. 33 to Total
Mortgage, Bay Equity requests “All documents and things concerning any Borrower.” Total
Mortgage Req. for Prod. 15 [#58-1]
As above, Bay Equity’s definition overly broadens the scope of responsive documents to
those that pertain only to Village. But insofar as a Village borrower became a Bay Equity
borrower following the limited asset purchase, that borrower is a Bay Equity borrower.
In short, as relates to both definitions discussed, this case concerns Total Mortgage and
Sirmaian’s alleged solicitation of Bay Equity employees and use of Bay Equity’s confidential
information to take Bay Equity’s borrowers. That includes assets that Bay Equity acquired from
Village, and to the extent that Defendants’ objections are based on where Bay Equity’s

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confidential information and borrowers originated, the court grants Bay Equity’s motion to
compel documents responsive to the requests for production listed above. But where Bay Equity
seeks discovery regarding Village’s confidential information and borrowers that Bay Equity did
not acquire from Village, the request is overbroad, and the motion is denied.
C.

Documents Concerning Loans Started or Closed by Former Bay Equity
Employees at Total Mortgage

The next requests at issue are Bay Equity’s Requests for Production Nos. 43-45 to Total
Mortgage:
REQUEST NO. 43: Documents sufficient to identify each and every loan any of the
Former Employees closed or help to close during their first year of employment with
Total Mortgage.
REQUEST NO. 44: Documents sufficient to identify each and every loan application
that was started by or with the help of any of the Former Employees during their first
year of employment with Total Mortgage.
REQUEST NO. 45: Documents sufficient to identify all revenues generated by the
Former Employees in their first year of employment with Total Mortgage, broken down
by month and by borrower.
Total Mortgage Req. for Prod. 17 [#58-1].
Bay Equity states that this information is necessary because otherwise it has “no way of
knowing every borrower who may have been moved to Total Mortgage.” Pl’s Mem. 11 [#58].
Bay Equity also argues that information concerning the former employees’ revenues is “critical
to determining damages.” Id. at 12.
Defendants respond that, as part of its initial disclosures, Bay Equity provided a list of
borrowers and prospective borrowers who the former employees worked with during their time
at Bay Equity, and Defendants have agreed to provide any documents or communications with
any of the individuals on that list. Defs’ Opp. 6-7 [#59]. They object, however, to providing

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information on Total Mortgage borrowers that Bay Equity has not first identified as having had a
business relationship with Bay Equity. Id. at 7-11.
Where Bay Equity’s request seeks information not only about loan applications that were
started when an employee was with Bay Equity but also about those that were started after the
employees moved over to Total Mortgage, the request is overbroad. Bay Equity’s Amended
Complaint [#3-1] alleges that, as a condition of their employment, “many” of the former Village
employees hired by Bay Equity were required to sign an employment agreement containing “the
following (or substantially similar) non-solicitation provision:
Employee hereby expressly acknowledges that the solicitation of, or the origination of a
loan for, a consumer for whom a loan previously was processed and closed by Company
may result in the imposition against Company of fines, penalties, reimbursements,
indemnifications, damages and expenses (“Re Solicitation Losses”). Employee shall
under no circumstances solicit any consumer for whom a loan previously was processed
and closed by Company during the longer of (i) the twelve (12) month period following
the date of such loan closing and (ii) such period as may be specified in the Applicable
Requirements of the pertinent lender or investor with respect to the loan, if such
solicitation or loan closing would result in a Re-Solicitation Loss to Company.
Am. Compl. ¶¶ 37, 39 [#31-]. To the extent that Bay Equity’s requests are limited to loans begun
while a former employee was employed by Bay Equity or to loans covered by the nonsolicitation provision for those former employees who signed an employment agreement with
Bay Equity containing such a provision, those requests are appropriate. And Defendants seem to
have agreed to provide any documents or communications regarding any individuals that Bay
Equity has so identified in its initial disclosures and has agreed that Bay Equity may supplement
that list. Defs’ Opp. 7 [#59]. The court sees no basis, however, to permit Bay Equity unfettered
access to Total Mortgage’s list of borrowers.

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D.

Documents Concerning Disparaging Remarks About Village Following Limited
Asset Purchase

Bay Equity’s Requests for Production Nos. 54-55 to Total Mortgage and Nos. 49-50 to
Sirmaian seek the following:
REQUEST NO. 54: All documents and things concerning any representation that any
Defendant (including any Former Employee who was – at the time of the communication
– employed by or operating on behalf of Total Mortgage) has made to any third party
(including any Borrower, Referral Source, or any person who was – at the time of the
communication – a Bay Equity or Village employee) concerning Bay Equity and/or
Village’s organizational or financial health, their ability to serve clients, or their future.
This request seeks without limitation all documents and things concerning any statement
(in words or effect) that Bay Equity and/or Village is a sinking ship, is going under, that
everyone is leaving and coming to Total Mortgage, or that Bay Equity and/or Village is
now Total Mortgage.
REQUEST NO. 55: All documents and things concerning any strategy, plan, or effort
by, between, or among any of the Defendants and/or Former Employees to disparage Bay
Equity or Village in the marketplace, including among Borrowers and Referral Sources.
Total Mortgage Req. for Prod. 18 [#58-1]; see also Sirmaian Req. for Prod. 17 [#58-2].
When Defendants objected to producing documents related to Village, Bay Equity
narrowed its requests to remarks made after Bay Equity’s limited asset purchase of Village. Pl’s
Mem. 13 [#58]. Defendants continued to object, and Bay Equity now asks the court to overrule
Defendants’ objection on the ground that, after the limited asset purchase, “it is highly likely that
the Former Employees and third parties referred to Bay Equity and Village interchangeably for
some period [of] time after the purchase because they were seen as one and the same” and “any
disparaging statements that were made about Village after the purchase had the purpose and
effect of hurting Bay Equity’s business.” Id.
Bay Equity’s motion to compel is denied. Total Mortgage has agreed to “produce any
non-privileged documents . . . concerning any representation made by any Defendants
concerning Bay Equity’s organizational or financial health, its ability to serve its clients, or its

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future.” Defs’ Opp. 11 [#59]. Defendants have also agreed to search for and produce any such
documents “whether or not Bay Equity is directly referenced.” Id. at 12. Village was a separate
entity from Bay Equity, and Bay Equity has not provided a basis for requesting documents
disparaging Village. Bay Equity’s highly speculative claim that “players in the marketplace”
may have considered Bay Equity and Village to be “one and the same” “for some period of time”
does not justify expanding the scope of discovery to cover Village.
E.

Documents Concerning Strategies to Unfairly Compete with Bay Equity

Bay Equity’s Requests for Production No. 56 to Total Mortgage and No. 51 to Sirmaian
seek the following:
REQUEST NO. 56: To the extent not covered by any foregoing request, all documents
and things concerning any strategy, plan, effort, scheme, or design to injure or take over
Bay Equity’s or Village’s business, breach the Former Employees’ Employment
Agreements, misappropriate Bay Equity’s or Village’s trade secrets and other
confidential information, and/or divert business and referral sources from Bay Equity
and/or Village to Total Mortgage.
Total Mortgage Req. for Prod. 18-19 [#58-1]; see also Sirmaian Req. for Prod. 18 [#58-2].
As previously discussed, the inclusion of references to Village’s business, trade secrets,
and other confidential information and efforts to “divert business and referral sources from . . .
Village to Total Mortgage” makes Bay Equity’s request overbroad. In addition, Defendants
contend that no such unfair competition occurred and that they therefore cannot produce
responsive documents that do not exist. Defs’ Opp. 11 [#59]. Defendants have already agreed to
produce documents concerning (1) “the recruitment and hiring of the Former Employees”; (2)
“any of Bay Equity’s Confidential Information”; (3) any strategy to have the Former Employees
take Bay Equity’s Confidential Information”; (4) “any of Bay Equity’s Borrowers”; (5) any
strategy to disparage Bay Equity”; (6) “any strategy to take over Bay Equity’s leases”; and (7)
any strategy to neglect any borrower file at Bay Equity.” Id. at 13. Where Bay Equity has not
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defined what additional practices it contends are at issue, the court accepts Defendants’
representations that it has no further responsive documents related to Bay Equity’s allegations of
unfair competition. Because the court cannot compel Defendants to produce something that they
do not have, Bay Equity’s motion to compel is denied.
F.

Documents Concerning Defendants’ Defenses

Bay Equity’s Requests for Production Nos. 84 and 96 to Total Mortgage and Nos. 79 and
91 to Sirmaian seek the following:
REQUEST NO. 84: All documents and things concerning Scott Penner’s sworn
statement [in an affidavit filed in a related case, see Penner Affidavit, Bay Equity LLC v.
Total Mortgage Srvs. LLC, No. 20-cv-10454 (March 6, 2020) ECF No. 10] that the
Former Employees “have built up their client and referral lists through many years in the
business, all of them long before they worked for Bay Equity . . . .”
REQUEST NO. 96: All documents and things concerning any of Defendants’ defenses
asserted in this Action.
Total Mortgage Req. for Prod. 24, 26 [#58-1]; see also Sirmaian Req. for Prod. 23, 25 [#58-2].
Bay Equity states that the first request “relates to one of Defendants’ core defenses in this action;
namely, that borrower information belongs to the Former Employees rather than to Bay Equity.”
Pl’s Mem. 15 [#58].
As listed above, Defendants have already agreed to produce documents responsive to
Total Mortgage’s competitive practices. Defs’ Opp. 13 [#59]. This discovery, Defendants
contend, will demonstrate that they “never unfairly competed at all, and that they did not
‘misappropriate’ any confidential information or ‘breach’ any agreements.” Id. at 12.
Additionally, in their initial disclosures, Defendants state that they “provided documents that
they would rely on to show that they lawfully hired the Former Employees.” Id. at 14 n.12. Such
documents appear to cover Defendants defenses. Where Bay Equity has not specified what

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additional documents it seeks to compel, the request is overbroad, and the motion to compel is
denied.
G.

Documents Concerning Bay Equity’s Limited Asset Purchase

Bay Equity’s Requests for Production No. 98 to Total Mortgage and No. 92 to Sirmaian
seek the following:
REQUEST NO. 98: To the extent not covered by any foregoing request, all documents
and things concerning the limited asset purchase by Bay Equity of Village, and any
strategy, plan, or effort by, between, or among any of the Defendants and/or Former
Employees to exploit, capitalize on, or benefit from the purchase
Total Mortgage Req. for Prod. 26 [#58-1]; see also Sirmaian Req. for Prod. 25 [#58-2].
Bay Equity’s request is vague and overbroad: it is not clear what documents Bay Equity
seeks regarding Defendants’ competitive practices or disparaging remarks about Bay Equity that
they have not already agreed to produce, and the request for “documents . . . concerning the
limited asset purchase by Bay Equity of Village” would include such documents as trade
publications covering news of the purchase that are not relevant to this case. The motion to
compel is denied.
H.

Documents Concerning Communications Between Defendants and Third Parties
Referencing Bay Equity

Bay Equity’s Requests for Production No. 99 to Total Mortgage and No. 93 to Sirmaian
seek the following:
REQUEST NO. 99: To the extent not covered by any foregoing request, all documents
and things concerning any communication between or among any of the Defendants
and/or Former Employees, on the one hand, and any third party, on the other hand,
referencing Bay Equity or Village, including without limitation emails bearing the subject
line “Please excuse my previous employer” (in words or effect) or similar emails.
Total Mortgage Req. for Prod. 26 [#58-1]; see also Sirmaian Req. for Prod. 25 [#58-2].

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Bay Equity has specified certain search terms, such as “Please excuse my previous
employer,” but states that its request is not limited to emails carrying this subject line. Pl’s Mem.
17 [#58]. Defendants explain that they have agreed to search for any documents with third
parties that reference the term “Bay Equity,” as well as those with other search terms identified
by Bay Equity. Defs’ Opp. 17 [#59]. However, Bay Equity moves to compel Defendants to
produce documents that “reference” Bay Equity without providing any additional relevant search
terms. Pl’s Mem. 17 [#58] (“Defendants . . . are unwilling to conduct any other searches and
instead maintain that Bay Equity should provide additional search terms for them”).
It is unclear to the court exactly what Bay Equity seeks under this request. To the extent
that Bay Equity wishes to provide additional search terms that would identify documents that
“reference” Bay Equity, it may do so, and it appears that Defendants have agreed to produce
documents in response to such a request. But to the extent that Bay Equity is trying to compel
Defendants to search through all the documents in their possession without direction, that request
is unduly burdensome and not proportional to the needs of the case. In addition, insofar as the
request seeks documents that reference Village, the request is overbroad. Given Bay Equity’s
failure to point to any specific information that is being withheld or additional search terms that
would generate relevant documents, the motion to compel is denied.
I.

Documents Concerning Defendants’ Attempts to Conceal Their Misconduct

Bay Equity’s Requests for Production No. 101 to Total Mortgage and No. 95 to Sirmaian
seek the following:
REQUEST NO. 101: To the extent not covered by any foregoing request, all documents
and things concerning any strategy, plan, or effort by, between, or among any of the
Defendants and/or Former Employees to conceal from or avoid detection by Bay Equity
or Village, concerning any conduct alleged against any of the Defendants and/or Former
Employees in the Amended Complaint.

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Total Mortgage Req. for Prod. 27 [#58-1]; see also Sirmaian Req. for Prod. 26 [#58-2].
Defendants reiterate that they engaged in no misconduct and that they have already
agreed to produce documents relating to all of their defenses. Defs’ Opp. 19 [#59]. Again, the
court cannot compel Defendants to produce something that they do not have, and it seems that all
documents relating to Defendants’ defenses are covered under other requests. And to the extent
that the request seeks documents related to Village, the request is overbroad. The motion to
compel is therefore denied.
J.

Documents Concerning Denise Peach

Finally, Bay Equity’s Requests for Production Nos. 85-94 to Total Mortgage and Nos.
80-89 to Sirmaian seek the following documents concerning Denise Peach:
REQUEST NO. 85: All documents and things concerning Scott Penner’s sworn
statement that “Denise Peach has had no responsibilities to recruit Bay Equity’s
employees for Total Mortgage and was not involved in the hiring of any former
employees of Bay Equity. Accordingly, she has not received any compensation related to
Total Mortgage’s hiring of former Bay Equity employees.”
REQUEST NO. 86: All documents and things concerning Denise Peach’s sworn
statement that Bay Equity’s allegations concerning her involvement in the Bay Equity
lift-outs “are not true.”
REQUEST NO. 87: All documents and things concerning Denise Peach’s sworn
statement that she “had no involvement whatsoever in the recruitment of any Bay Equity
employees to Total Mortgage” and that she “did not learn that those employees were even
coming to Total Mortgage until after they had already tendered their resignations with
Bay Equity.”
REQUEST NO. 88: All documents and things concerning Denise Peach’s sworn
statement that she “did not speak to any of the Bay Equity employees about joining Total
Mortgage prior to their leaving Bay Equity” and “ha[s] not been involved in any way
with their onboarding or supervision since they have joined Total Mortgage.”
REQUEST NO. 89: All documents and things concerning Denise Peach’s sworn
statement that she “had absolutely nothing to do with [Bay Equity’s former employees]
joining [Total Mortgage] or any of their work at Total Mortgage since they have joined.”

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REQUEST NO. 90: All documents and things concerning Denise Peach’s sworn
statement that she “ha[s] no idea whether [Bay Equity’s former employees] have any
contracts or agreements with Bay Equity” and “[t]he first [she had] ever heard of such
contracts was when [she] received the Complaint . . . .”
REQUEST NO. 91: All documents and things concerning Denise Peach’s sworn
statement that Peach “ha[s] not seen any of [Bay Equity’s former employees’]
employment agreements, and do[es] not know who, if anyone, is subject to any
employment agreements with Bay Equity.”
REQUEST NO. 92: All documents and things concerning Denise Peach’s sworn
statement that she “ha[s] certainly not encouraged anyone to breach any contract or
agreement that they might have with Bay Equity.”
REQUEST NO. 93: All documents and things concerning Denise Peach’s sworn
statement that she “ha[s] not and will not receive any additional compensation, bonus, or
other personal benefit as a result of any former Bay Equity employees joining Total
Mortgage.”
REQUEST NO. 94: All documents and things concerning Denise Peach’s sworn
statement that she “was not at all involved in [Bay Equity’s former employees’] hiring.”
Total Mortgage Req. for Prod. 22-25 [#58-1]; see also Sirmaian Req. for Prod. 23-25 [#58-2].
Peach was a Village employee who never worked for Bay Equity. Mem. & Order 2-3
[#35]. On December 15, 2020, this court granted Peach’s Motion to Dismiss for Fraudulent
Joinder [#13]. Id. at 11. The court found that, following denial of its motion for a temporary
restraining order in a related federal case, Bay Equity voluntarily dismissed that federal case and
then filed a substantially similar complaint in Middlesex Superior Court, this time naming Peach,
a Massachusetts resident, as a defendant. Id. at 1-2. The court concluded that Bay Equity had
failed to state any claims against Peach and that it had joined her in an effort to defeat removal to
federal court based on diversity jurisdiction. Id. at 4-11. Where Peach was dismissed from this
action with prejudice due to Bay Equity’s failure to adequately plead that she had any
involvement in the events at issue, the motion to compel is denied.

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Case 1:20-cv-10693-IT Document 66 Filed 09/09/21 Page 17 of 17

IV.

Conclusion
Bay Equity’s Second Motion to Compel Discovery [#57] is GRANTED IN PART and

DENIED IN PART as specified herein.
IT IS SO ORDERED.
September 9, 2021

/s/ Indira Talwani
United States District Judge

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