Declaration of Connie K. Chan — In re Bank of America California Unemployment Benefits Litigation (Dkt. 197-1, S.D. Cal. No. 3:21-md-02992)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 197-1 · 2023-12-21 · Docket on CourtListener

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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF JOINT MOTION TO 
EXTEND CASE SCHEDULE 
Case No.: 3:21-md-02992-LAB-
MSB 
 
BRIAN DANITZ (SBN 247403) 
bdanitz@cpmlegal.com 
KARIN B. SWOPE (pro hac vice) 
kswope@cpmlegal.com 
ANDREW F. KIRTLEY (SBN 328023) 
akirtley@cpmlegal.com 
COTCHETT PITRE & McCARTHY, LLP 
840 Malcolm Road, Suite 200 
Burlingame, CA 94010 
Telephone: (650) 697-6000 
Fax: (650) 697-0577 
MICHAEL RUBIN (SBN 80618) 
mrubin@altber.com 
CONNIE K. CHAN (SBN 284230) 
cchan@altber.com 
ALTSHULER BERZON LLP 
177 Post Street, Suite 300 
San Francisco, CA 94108 
Telephone: (415) 421-7151 
Fax: (415) 362-8064 
Co-Lead Counsel for Plaintiffs and  
the Proposed Class  
(Additional Counsel Listed Below) 
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA 02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
 
Attorneys for Defendant 
Bank of America, N.A. 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-LAB-MSB 
 
DECLARATION OF CONNIE K. 
CHAN IN SUPPORT OF JOINT 
MOTION TO EXTEND  
CASE SCHEDULE 
This Document Relates to All Actions 
 
Judge: 
Hon. Larry Alan Burns 
 
 
Case 3:21-md-02992-GPC-MSB     Document 197-1     Filed 12/21/23     PageID.2001     Page
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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF JOINT MOTION TO 
EXTEND CASE SCHEDULE 
Case No.: 3:21-md-02992-LAB-
MSB 
 
DECLARATION OF CONNIE K. CHAN 
I, Connie K. Chan, hereby declare as follows: 
1. 
I am a partner at the law firm of Altshuler Berzon LLP, co-lead counsel 
for Plaintiffs and the putative class in this action. I submit this declaration in support 
of the parties’ Joint Motion to Extend the Case Schedule. I have personal knowledge 
of the facts set forth in this declaration and if called as a witness in this action, I 
could and would testify competently to these facts. 
2. 
The parties have been actively engaged in discovery since the Court 
issued its order granting in part and denying in part Defendant Bank of America, 
N.A.’s (“Defendant” or “Bank”) motion to dismiss the Master Consolidated 
Complaint and lifting the discovery stay on May 25, 2023 (ECF 126). Despite the 
parties’ diligence in pursuing and responding to discovery, and Magistrate Judge 
Berg’s considerable assistance in conducting status and discovery conferences every 
few weeks to facilitate the expeditious resolution of the parties’ discovery disputes, 
the parties require an extension of the current case deadlines to enable them to 
complete critical discovery, including core discovery that Plaintiffs assert is needed 
for their forthcoming motion for class certification, which is currently due January 
15, 2024. 
The Parties’ Diligent Discovery Efforts to Date 
3. 
On June 12, 2023, Plaintiffs served their Second Set of Requests for 
Production of Documents (RFPs 31-73) on the Bank. The Bank served its responses 
and objections on July 12, 2023, and pursuant to the parties’ stipulated ESI Protocol, 
the Bank proposed ESI custodians and search terms for the RFPs that required 
electronic searches on July 31, 2023. Plaintiffs proposed additional ESI custodians 
and search terms on August 2 and 3, and the parties met and conferred extensively 
(in writing and by telephone/video conference) about their respective ESI proposals 
as well as the Bank’s objections to Plaintiffs’ RFPs Set Two. Although the parties 
Case 3:21-md-02992-GPC-MSB     Document 197-1     Filed 12/21/23     PageID.2002     Page
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2 
DECLARATION OF CONNIE K. CHAN IN SUPPORT OF JOINT MOTION TO 
EXTEND CASE SCHEDULE 
Case No.: 3:21-md-02992-LAB-
MSB 
 
made considerable progress through their meet-and-confer efforts, they were unable 
fully to resolve their disputes. Magistrate Judge Berg held an informal discovery 
conference (IDC) with the parties on August 17, 2023 regarding five issues arising 
from Plaintiff’s RFP Set Two, and held another IDC on September 7, 2023 
regarding the parties’ dispute regarding certain ESI custodians.  
4. 
In addition to participating in these two IDCs, the parties continued to 
meet and confer about various issues relating to Plaintiffs’ RFP Set Two, including 
to reach agreement concerning the appropriate number and identity of ESI 
custodians and the search terms that should be used. The parties continued to meet 
and confer about proposed search terms to be used on this initial set of ESI 
custodians, and on September 15 the Bank produced a preliminary search term hit 
report.  Following additional IDCs and efforts to meet and confer, the Bank 
produced a partial custodial report on October 4 and an updated custodial report on 
October 9.  The Bank made its first substantial production of ESI documents on 
October 23 and continued making significant weekly productions thereafter until the 
December 4 deadline set by the Court for production of responsive documents from 
the first set of agreed-upon custodians.  
5. 
During this time, Plaintiffs also served on the Bank a First Set of 
Interrogatories (Interrogatories 1-18) on August 4, 2023, a Third Set of Requests for 
Production of Documents (RFPs 74-84) on August 15, 2023, and a Second Set of 
Interrogatories (Interrogatories 19-20) on October 6, 2023, to which the Bank timely 
responded.  
6. 
After the Bank served its responses and objections to Plaintiffs’ First 
Set of Interrogatories, the parties met and conferred about those responses, in 
writing and by video conference. Plaintiffs then modified several interrogatories to 
which the Bank had objected, and on October 5, the Bank served its First 
Supplemental Responses and Objections to Plaintiffs’ First Set of Interrogatories.  
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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF JOINT MOTION TO 
EXTEND CASE SCHEDULE 
Case No.: 3:21-md-02992-LAB-
MSB 
 
On October 13 and December 1, the Bank then supplemented those responses. The 
parties are presently still meeting and conferring about the Bank’s December 1 
supplemental responses.  
7. 
Defendant has also sought discovery from Plaintiffs. On September 19, 
2023, Defendant served Defendant’s First Set of Requests for Production of 
Documents (Requests No. 1-56), First Set of Interrogatories (Interrogatories No. 1-
25), and First Set of Requests for Admission (Requests No. 1-14), to which 
Plaintiffs timely responded. Plaintiffs requested, and the Bank granted, extensions of 
time to respond to certain of the discovery responses, and Plaintiffs have been 
making rolling productions of responsive documents, and the parties are continuing 
to meet and confer about Plaintiffs’ responses and objections. 
8. 
Magistrate Judge Berg has been instrumental in facilitating discovery. 
Since August 17, 2023, Judge Berg has held 12 status conferences and informal 
discovery conferences, meeting with the parties approximately once every 10 days. 
See ECF Nos. 164, 170, 172, 179, 181, 184, 185, 187, 190, 192, 195 (August 17, 
August 25, September 7, September 20, September 29, October 6, October 17, 
October 27, November 9, November 22, December 5, and December 18). 
Outstanding Discovery Plaintiffs Contend is Relevant to Class 
Certification 
9. 
While the parties have been working diligently and cooperatively, there 
is still a significant amount of discovery remaining to be completed that Plaintiffs 
contend will be highly relevant to class certification briefing. Also pending are 
several ongoing discovery disputes that Plaintiffs contend pertain to class 
certification issues that cannot be resolved until after the New Year, due to the 
holidays and counsel’s pre-scheduled holiday travel plans and other commitments. 
Additional time is needed to resolve these discovery disputes and complete 
additional discovery that Plaintiffs contend is relevant to class certification.  
10. 
For example, Plaintiffs contend that additional time is needed for 
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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF JOINT MOTION TO 
EXTEND CASE SCHEDULE 
Case No.: 3:21-md-02992-LAB-
MSB 
 
Plaintiffs to complete their review of the Bank’s significant document production, 
which includes review of more than 165,000 documents (comprising more than 
560,000 pages) produced by the Bank in November and December 2023, as set forth 
in the table below.  
Production 
Date 
Produced 
Bates Range 
Document
s 
Vol004 
9/24/21 
BANA_EDD_MDL-00000711-1045 
36 
Vol007 
10/18/21 
BANA_EDD_MDL-00001059-1231 
55 
Vol007 
_Suppl 
12/02/21 
BANA_EDD_MDL-00001190-1214 
N/A 
Vol008 
11/22/21 
BANA_EDD_MDL-00001232-1306 
53 
Vol009 
12/03/21 
BANA_EDD_MDL-00001307-1311 
5 
Vol010 
12/05/21 
BANA_EDD_MDL-00001312-1404 
40 
Vol011 
12/05/21 
BANA_EDD_MDL-00001405 
1 
Vol012 
4/19/23 
BANA_EDD_MDL-00001406-12722 
1,131 
Vol013 
5/12/23 
BANA_EDD_MDL-00012723-12790 
1 
Vol014 
7/21/23 
BANA_EDD_MDL-00012791-18383 
314 
Vol015 
8/14/23 
BANA_EDD_MDL-00018384-19732 
329 
Vol016 
8/29/23 
BANA_EDD_MDL-00019733-21173 
128 
Vol17 
9/20/23 
BANA_EDD_MDL-00021174-21180 
4 
Vol18 
9/22/23 
BANA_EDD_MDL-00021181-29727 
2,466 
Vol19  
9/27/23 
BANA_EDD_MDL-00029728-29839 
19 
Vol20 
9/27/23 
BANA_EDD_MDL-00029840-42575 
2,804 
Vol21 
9/29/23 
BANA_EDD_MDL-00042576-54575 
1,255 
Vol22 
10/4/23 
BANA_EDD_MDL-00054576-56912 
243 
Vol23 
10/4/23 
BANA_EDD_MDL-00056913-56936 
24 
Vol24 
10/13/23 
BANA_EDD_MDL-00056937-57836 
304 
Vol25 
10/20/23 
BANA_EDD_MDL-00057837-57878 
1 
Vol26 
10/23/23 
BANA_EDD_MDL-00057879-102471 
11,960 
Vol27 
10/23/23 
BANA_EDD_MDL-00102472-102587 
6 
Vol28 
10/30/23 
BANA_EDD_MDL-00102588-130475 
10,732 
Vol29 
11/02/23 
BANA_EDD_MDL-00130476-139058 
1,431 
Vol30 
11/06/23 
BANA_EDD_MDL-00139059-186896 
17,871 
Vol31 
11/13/23 
BANA_EDD_MDL-00186897-231170 
15,793 
Case 3:21-md-02992-GPC-MSB     Document 197-1     Filed 12/21/23     PageID.2005     Page
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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF JOINT MOTION TO 
EXTEND CASE SCHEDULE 
Case No.: 3:21-md-02992-LAB-
MSB 
 
Vol32 
11/20/23 
BANA_EDD_MDL-00231171-233391 
547 
Vol33 
11/20/23 
BANA_EDD_MDL-00233392-367347 
37,358 
Vol34 
12/01/23 
BANA_EDD_MDL-00367348-485500 
31,561 
Vol35 
12/04/23 
BANA_EDD_MDL-00485501-694813 
63,267 
Vol36 
12/15/23 
BANA_EDD_MDL-00694814-694849 
9 
  
  
  
  
Total 
  
  
199748 
 
11. 
Plaintiffs are reviewing the Bank’s document productions as quickly as 
possible, but given the volume, there is insufficient time before the current January 
15, 2024 class certification deadline for Plaintiffs’ counsel to complete their review 
and for their experts to analyze the documents Plaintiffs consider necessary to 
inform their opinions in support of class certification.  
12. 
Additional time is also needed to enable Plaintiffs to take the Rule 
30(b)(6) deposition of the Bank before moving for class certification. On Friday 
December 8, Plaintiffs served a Notice of Deposition of Defendant Bank of 
America, N.A., pursuant to Federal Rule of Civil Procedure 30(b)(6) seeking 
testimony on 32 categories of information. During the parties’ December 18 meet 
and confer, counsel for the Bank stated that due to the number of topics sought by 
the deposition notice, the Bank anticipates designating between five and seven Bank 
representatives pursuant to Rule 30(b)(6). Due in part to the holidays, the Bank 
stated that it is not realistically possible to schedule these depositions before mid-
January 2024. 
13. 
Plaintiffs are also expecting the Bank’s responses and objections to 
several other pending discovery requests in the next few weeks that Plaintiffs 
believe will also be highly relevant to their class certification motion, including 
responses to Plaintiffs’ Third Set of Interrogatories, served November 20; responses 
to Plaintiffs’ Fourth Set of Interrogatories, served December 1, 2023; and responses 
to Plaintiffs’ First Set of Requests for Admission, served December 12.  
14. 
Plaintiffs’ requests, which were informed by their review of documents 
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6 
DECLARATION OF CONNIE K. CHAN IN SUPPORT OF JOINT MOTION TO 
EXTEND CASE SCHEDULE 
Case No.: 3:21-md-02992-LAB-
MSB 
 
produced by the Bank in November and December 2023 and propounded as soon 
thereafter as reasonably practicable, seek information they believe is highly relevant 
to class certification, including information about the Bank’s policies and practices 
for handling EDD debit cardholders’ unauthorized transaction claims and the Bank’s 
policies and practices for freezing and blocking EDD debit cardholders’ accounts 
during the putative class period. It is highly likely that, even after the Bank serves its 
responses, the parties will need to meet and confer about the Bank’s responses and 
objections to Plaintiffs’ discovery requests, which Plaintiffs believe may give rise to 
the need for additional discovery requests. It is not realistically feasible for the 
parties to complete this process before the current January 15, 2024 deadline for 
class certification.  
15. 
The parties also have several pending discovery disputes on which they 
are actively meeting and conferring, including additional ESI custodians, as well as 
several disputes for which Magistrate Judge Berg has set an IDC for January 3, 
2024.   
16. 
Finally, Plaintiffs contend they will also need time to conduct 
additional discovery after the pleadings are settled and the Bank has filed an 
Answer. Because Defendant has not yet filed its Answer, Plaintiffs do not at this 
time know what affirmative defenses the Bank intends to assert. Additionally, 
Plaintiffs believe they cannot brief the issues related to class-wide treatment of the 
UCL claim that is subject to a pending motion for reconsideration, or of the 
affirmative defenses that the Bank might assert in its Answer, until the pending 
motions to dismiss and for reconsideration are decided and the Bank has filed its 
Answer.  
I declare under penalty of perjury that that the foregoing is true and correct.  
Executed this 21st day of December, 2023 in Burlingame, California. 
 
 
 
 
 
/s/ Connie K. Chan 
 
 
 
 
 
 
Connie K. Chan 
Case 3:21-md-02992-GPC-MSB     Document 197-1     Filed 12/21/23     PageID.2007     Page
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