Magistrate Judge Discovery Order on ESI Custodians — In re Bank of America California Unemployment Benefits Litigation (S.D. Cal. No. 3:21-md-02992)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 268 · 2024-01-03 · Docket on CourtListener

Full text

1 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
 
 
 
 
 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE: BANK OF AMERICA CALIFORNIA 
UNEMPLOYMENT BENEFITS LITIGATION 
 
Case No.:  21md2992-GPC (MSB) 
 
DISCOVERY ORDER  
[ECF NOS. 209, 212] 
 
 
This multidistrict litigation (“MDL”) arises from numerous class and individual 
actions brought against Defendant Bank of America, N.A. (“BANA”) over its 
administration of California’s electronic benefits payment system during the COVID-19 
pandemic.  The instant discovery dispute concerns Plaintiffs’ request to compel 
additional electronically stored information (“ESI”) custodians and BANA’s request to 
preclude additional ESI custodians.  (See ECF Nos. 209, 211–12, 214–15.)  To date, BANA 
has produced ESI from twenty custodians.  (ECF No. 209 at 5.)  Plaintiffs now request 
that the Court compel eight additional ESI custodians.  (ECF No. 212 at 2.)  After 
reviewing informal letter briefs lodged by the parties, the Court held an Informal 
Discovery Conference (“IDC”) on January 3, 2024.  (ECF No. 199.)  The Court indicated it 
would be inclined to allow Plaintiffs to add three more executive ESI custodians of their 
choosing, but no additional non-executive ESI custodians.   
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2664   Page 1 of 12

 
2 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
Following the conference, both parties requested an opportunity for formal 
briefing, and the Court issued a briefing schedule.  (ECF No. 205.)  On January 23, 2024, 
Plaintiffs filed their “Motion to Compel Additional ESI Custodians” and Defendants filed 
their “Motion to Preclude Additional ESI Discovery.”  (See ECF No. 212, hereinafter “Pls.’ 
Mot.”; ECF No. 209, hereinafter “Def.’s Mot.”)  On January 30, 2024, the parties each 
filed oppositions.  (See ECF No. 214, hereinafter “Def.’s Opp’n”; ECF No. 215, hereinafter 
“Pls.’ Opp’n”.)  For the reasons explained below, the Court GRANTS Plaintiffs’ request 
for ESI discovery from Catherine Bessant, Dean Athanasia, and Christine Channels and 
DENIES Plaintiffs’ request for ESI discovery from Brian Moynihan, Thomas Montag, 
Jennifer Boussuge, Renee Johnson, and Rocco Blasi.  
I. 
BACKGROUND 
A. Procedural History 
 
Plaintiffs filed several individual and class actions against BANA in federal district 
courts throughout California.  On June 4, 2021, the United States Judicial Panel on 
Multidistrict Litigation consolidated the actions in this District.  (ECF No. 1.)  Following 
this Court’s Case Management Order, Plaintiffs filed a Master Consolidated Complaint 
(“MCC”) in August 2021.  (ECF No. 72.)  BANA then moved to dismiss the MCC, and on 
May 25, 2023, this Court issued an Order granting in part and denying in part BANA’s 
motion.  (ECF No. 126.)  On June 13, 2023, Plaintiffs filed the operative First Amended 
Master Consolidated Complaint (“FAMCC”).  (ECF No. 136.)  The following facts are 
taken from the FAMCC.   
B. Factual Background 
 
Plaintiffs allege that in 2010, BANA entered an exclusive contract with the 
California Employment Development Department (“EDD”) to provide electronic benefits 
payments such as unemployment insurance benefits and pandemic unemployment 
assistance benefits.  (Id. at 22.)  In 2015, EDD accepted BANA’s proposal to extend the 
contract for a term running from August 1, 2016, through July 31, 2021 (“EDD-BANA 
Contract”).  (Id.)  Pursuant to the EDD-BANA Contract, eligible claimants received 
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2665   Page 2 of 12

 
3 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
periodic EDD benefits payments through prepaid debit cards (“EDD Debit Cards”) 
administered and issued by BANA.  (Id. at 7.)  Since the inception of the COVID-19 
pandemic in March 2020, Plaintiffs allege EDD received at least 18.5 million claims for 
various unemployment benefits and BANA issued more than nine million EDD Debit 
Cards to approved applicants.  (Id. at 35.)  During this time, there was a corresponding 
increase in fraud targeting EDD Debit Cardholders, with thousands of benefits recipients 
reporting substantial financial losses due to unauthorized transactions, fraud on their 
accounts, or account freezes preventing access to EDD benefits.  (Id. at 34–53.)   
 
In this MDL litigation, Plaintiffs allege, among other things, that BANA failed to 
secure Plaintiffs’ sensitive card and account information by issuing them EDD Debit 
Cards that used outdated, vulnerable magnetic stripe technology rather than fraud-
preventing EMV chip technology.  (Id. at 24–32.)  Further, Plaintiffs allege BANA 
breached its duties through “systemically lax security practices [that] enabled 
unauthorized persons to access [EDD Debit Cardholders’] personal and financial 
information and to make fraudulent, unauthorized transactions.”  (Id. at 8.)  Moreover, 
Plaintiffs allege that BANA used a highly flawed Claim Fraud Filter to automatically deny 
error claims or to freeze or block EDD prepaid accounts.  (Id. at 42–47.) 
II. 
INSTANT DISCOVERY DISPUTE 
A. Plaintiffs’ Motion to Compel Additional ESI Custodians 
 
In the instant discovery dispute, Plaintiffs request that the Court compel BANA to 
add four additional executive ESI custodians—(1) Brian Moynihan (Chief Executive 
Officer, “CEO”); (2) Thomas Montag (President of Global Banking and Markets and Chief 
Operating Officer, “COO” until December 2021); (3) Catherine Bessant (Chief Operations 
and Technology Officer until 2021); and (4) Dean Athanasia (President of Regional 
Banking)—to produce documents responsive to Plaintiffs’ requests for production 
(“RFPs”) 76–79.  (See Pls.’ Mot. at 2.)  Additionally, Plaintiffs request that the Court 
compel BANA to add four additional non-executive ESI custodians—(5) Christine 
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2666   Page 3 of 12

 
4 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Channels1; (6) Jennifer Boussuge; (7) Renee Johnson; and (8) Rocco Blasi—for limited 
RFPs.  (Id.)  In support, Plaintiffs argue that these eight individuals “have highly relevant, 
non-duplicative documents; and Plaintiffs’ need for those documents far outweighs any 
potential burden to the Bank.”  (Id.)  First, Plaintiffs argue that four of these 
individuals—senior executives Moynihan, Bessant, Montag, and Athanasia—“were not 
merely passive recipients of information” but involved in decisions at the core of 
Plaintiffs’ claims.  (Id. at 4.)  For example, Plaintiffs assert that discovery BANA has 
already produced shows these four executives “communicated about . . . key issues 
among themselves and with other non-custodian executives and the Bank’s Board 
members—communications not in the possession of any lower-level custodians.”  (Id. at 
5–6.)  Second, Plaintiffs argue that BANA itself admitted the four non-executives—
Channels, Boussuge, Johnson, and Blasi— are “ ‘most likely to possess non-duplicative, 
relevant ESI.’ ”  (Id. at 6–7.)   
 
Plaintiffs maintain that adding these eight custodians is proportional to the needs 
of the case and not unduly burdensome, considering the following factors: (1) the class 
comprises over 100,000 Californians and the requested damages are in the hundreds of 
millions of dollars; (2) the requested discovery is critical to the disputed issues, namely 
the Bank’s reasons for implementing its Claim Fraud Filter and its knowledge of the 
impact of these policies on cardholders; (3) the Bank is well-resourced based on its 
reported 2022 revenue of more than $94 billion and $3 trillion in consolidated assets; 
and (4) only the Bank has access to these documents and its burden-based arguments 
fail.  (Id. at 7–8.)  Thus, Plaintiffs request that the Court compel BANA to add the eight 
requested ESI custodians, or alternatively request the Court at minimum adopt its 
tentative ruling from the IDC on January 3, 2024.  (Id. at 8.)   
/ / / 
 
1 Although Plaintiffs do not refer to Christine Channels as an executive, BANA notes that she is Head of 
Client Services and Credit Assistance.  (See Def.’s Mot. at 6.)   
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2667   Page 4 of 12

 
5 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. BANA’s Motion to Preclude Additional ESI Custodians 
 
As an initial matter, BANA notes that Plaintiffs have already received more than 
200,000 documents from twenty custodians, three non-custodian mailboxes, and six 
targeted databases, resulting in more than $4.5 million in vendor costs.  (Def.’s Mot. at 
4.)  BANA contends the additional ESI that Plaintiffs now seek would be disproportionate 
to the needs of this case, and the vendor costs for the executive custodians alone would 
exceed $1.4 million.  (Id. at 4–6.)  During meet and confer discussions, BANA offered to 
add eight custodians who were involved in the Claim Fraud Filter and other relevant 
issues, including Christine Channels, Head of Client Services and Credit Assistance; 
however, Plaintiffs rejected this proposal and insisted on ESI from more top executives. 2  
(Id. at 6.)   BANA contends Plaintiffs are attempting to use discovery as leverage for 
settlement by exposing the Bank’s top executives to unwarranted harassment.  (Id.)   
 
When assessing whether to allow document discovery from top executives, BANA 
contends the proper inquiry is whether “executives were involved in decision making 
relating to key issues in the case.”  (Id. at 6 (citing Blackberry Ltd. v. Facebook., Inc., No. 
CV 18-1844-GW (KSx), 2019 WL 4544425, at *6 (C.D. Cal. Aug. 19, 2019).)  BANA 
highlights a Northern District of California case that applied this so-called “decision-
maker on key issues” standard.3  (Id. at 7 (citing In re Facebook, Inc. Consumer Priv. User 
Profile Litig., No. 3:18-MD-02843-VC-JSC, 2021 WL 10282213, at *2 (N.D. Cal. Nov. 14, 
2021).  The court allowed ESI searches of Facebook’s top two executives—Mark 
Zuckerberg and Sheryl Sandberg—after finding they were “key decision-makers related 
 
2 BANA does not currently object to the addition of Channels as an ESI custodian, “subject to the 
parties’ negotiation of appropriate search parameters.”  (See Def.’s Mot. at 6 n. 2.)   
3 BANA also cites two out-of-circuit cases denying discovery requests where plaintiffs failed to 
demonstrate executives had “unique or personal knowledge” that was “necessary and not 
cumulative.”  (See Def.’s Mot. at 7 (citing Lutzeier v. Citigroup Inc., No. 4:14-CV-00183-RLW, 2015 WL 
430196, at *7 (E.D. Mo. Feb. 2, 2015); Harris v. Union Pac. R.R. Co., No. 8:16CV381, 2018 WL 2729131, 
at *4 (D. Neb. June 6, 2018)).)  These authorities are not binding on this Court.  Additionally, the Court 
finds Lutzeier and Harris generally inapplicable because they relied on the “apex deposition doctrine,” 
whereas the instant dispute concerns document discovery.   
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2668   Page 5 of 12

 
6 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to issues at the heart of Plaintiffs’ allegations.”  In re Facebook Litig., 2021 WL 
10282213, at *2.  Here, BANA argues Plaintiffs cannot show that the executives they 
seek to add were involved in decision making relating to the key issues in this case—
namely, BANA’s use of the Claim Fraud Filter to decide claims and freeze or block 
suspected fraudulent accounts, BANA’s use of EMV chip technology for EDD Debit Cards, 
and customer service of those cards.  (Id. at 7–10.)  Further, BANA argues the 
documents identified by Plaintiffs to justify the discovery they seek show only that 
BANA’s top executives had “basic awareness” of the prepaid card program, not that 
they were involved in making key decisions.  (Id. at 7.)  Thus, BANA maintains Plaintiffs 
already have the custodians they need, and requests that the Court issue an order 
precluding additional ESI discovery.  (Id. at 11.)      
III. 
RELEVANT LAW 
 
The Federal Rules of Civil Procedure authorize parties to obtain discovery 
regarding any nonprivileged matter that is relevant to any 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).  Relevant information need not be admissible at 
trial to be discoverable.  Id.  District courts have broad discretion to determine relevancy 
for discovery purposes.  See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).  
Similarly, district courts have broad discretion to limit discovery where the discovery 
sought is “unreasonably cumulative or duplicative, or can be obtained from some other 
source that is more convenient, less burdensome, or less expensive”; the requesting 
party “has had ample opportunity” to obtain discovery; or the discovery sought is 
beyond the scope of Federal Rule of Civil Procedure 26(b)(1).  See Fed. R. Civ. P. 
26(b)(2)(C).  
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2669   Page 6 of 12

 
7 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
There is relatively limited legal authority on the standards a court should apply 
when addressing disputes about the designation of additional ESI custodians.  See In re 
EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-md-
2785-DDC-TJJ, 2018 WL 1440923, at *2 (D. Kan. Mar. 15, 2018).  After reviewing the 
cases cited by both parties, the Court sets forth the following general principles, which it 
applies in ruling on the instant dispute.  First, the party seeking designation of additional 
custodians must show “that the disputed custodians possess uniquely relevant 
information that is not available from the sources already designated.”  See In re 
Facebook Litig., 2021 WL 10282213, at *1; see also B&G Foods N. Am., Inc. v. Embry, No. 
2:20-CV-0526 KJM DB, 2024 WL 626962, at *3 (E.D. Cal. Feb. 14, 2024) (applying the 
same standard).  Second, “[t]he party who resists discovery has the burden to show 
discovery should not be allowed, and has the burden of clarifying, explaining, and 
supporting its objections.”  Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215, 217 
(C.D. Cal. 2009) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) 
(requiring defendants “to carry a heavy burden of showing why discovery was denied”).   
IV. 
DISCUSSION  
 
Both parties rely on Plaintiffs’ Index of Exhibits and Exhibits, which were also 
lodged with the Court prior to the IDC on January 3, 2024.  (See generally ECF Nos. 211–
212.)  The Exhibits were designated “CONFIDENTIAL” pursuant to the parties’ Stipulated 
Protective Order.  Wherever possible, the Court references the Exhibits only generally. 
A. Brian Moynihan 
 
Brian Moynihan is the CEO of Bank of America.  (Pls.’ Mot. at 2.)  Among other 
things, Plaintiffs contend Exhibits 1, 10, 11, and 12 demonstrate that Moynihan has 
relevant and unique knowledge about the issues in this case because he personally 
prepared memoranda and presented on key issues at Board meetings.  (See Pls.’ Mot. at 
4–6; Pls.’ Opp’n at 2.)  Additionally, Plaintiffs assert Exhibits 4, 7, and 13 show that 
Moynihan personally authorized freezing EDD Debit Cards and that Moynihan and other 
executives directed changes to BANA’s claims-processing procedures.  (See Pls.’ Mot. at 
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2670   Page 7 of 12

 
8 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4–6; Pls.’ Opp’n at 2.)  In response, BANA maintains that these Exhibits unsurprisingly 
show that BANA’s top executives, like Moynihan, received updates on the EDD program 
and the unprecedented fraud it was generating; however, the documents do not show 
that Moynihan or any other executives were decision makers on key issues.  (See Def.’s 
Mot. at 7–10; Def.’s Opp’n at 2–3.) 
 
After considering the relevant Exhibits and the parties’ arguments, the Court finds 
that although Moynihan may possess relevant information, Plaintiffs have not 
demonstrated that he possesses “uniquely relevant information that is not available 
from the sources already designated.”  See In re Facebook Litig., 2021 WL 10282213, at 
*1 (emphasis added).  For example, Plaintiffs contend Exhibit 7 shows that Moynihan 
“personally authorized freezing 46,000 cards.”  (Pls.’ Opp’n at 2.)  However, as BANA 
points out, the document merely reveals that a BANA employee asked whether 
Moynihan approved moving forward, to which an existing custodian responded, “we are 
freezing all the atm/combo cards but that’s all we have approval for.”  (Def.’s Mot. at 8 
(citing Ex. 7).)  Thus, Exhibit 7 does not indicate who approved the freezing, let alone if 
Moynihan did so.  Additionally, BANA represents that Plaintiffs have already received ESI 
from nine custodians who were involved in account freezing [Def.’s Mot. at 8], and the 
Court is not convinced that Moynihan is likely to produce information that is not already 
available from these existing custodians.  Although Plaintiffs point to Exhibits 10–12 
showing that Moynihan prepared memoranda and presented on key issues at Board 
meetings, BANA represents that “if any of these [Exhibits] resulted in relevant Board 
materials, Plaintiffs already have them.”  (Def.’s Mot. at 9.)  Based on the foregoing, the 
Court finds that BANA has sufficiently explained and supported its objections to adding 
Moynihan as an ESI custodian.  Superior Commc’ns, 257 F.R.D. at 217.  Therefore, ESI 
discovery from Moynihan is DENIED.  
B. Thomas Montag 
 
Thomas Montag was the President of Global Banking and Markets and COO of 
Bank of America until December 2021.  (Pls.’ Mot. at 2.)  Plaintiffs assert that Montag, 
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2671   Page 8 of 12

 
9 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
along with other executives, “were not merely aware of but were driving the key issues” 
involved in this case.  (Pls.’ Opp’n at 2.)  Plaintiffs point to Exhibits 3, 5, and 14, 
containing emails that were either sent to Montag or mention him directly.  (See Pls.’ 
Mot. at 4–6.)  In response, BANA maintains that these Exhibits do not show anything 
more than general awareness on the part of Montag, which is not enough to add him as 
an ESI custodian.  (See Def.’s Mot. at 7–10; Def.’s Opp’n at 2–3.)   
 
 Considering the relevant Exhibits and the parties’ arguments, the Court finds that 
Montag is unlikely to possess unique information that cannot be found from existing ESI 
custodians.  See In re Facebook Litig., 2021 WL 10282213, at *1 (emphasis added).  
Regarding Exhibit 3, BANA correctly points out that when a question was raised about 
the amount of potential operational losses related to prepaid claims fraud, Montag and 
Athanasia reached out to another offered custodian, Christine Channels, and an existing 
custodian, Jennifer Ehresman, to obtain the relevant information.  (Def.’s Mot. at 10 
(citing Ex. 3).)  As to Exhibit 5, the Court agrees with BANA’s contention that although 
Montag’s approval may have been required for a new contract related to call center 
services, it appears he was not involved in negotiating the details of the contract.  (Def.’s 
Mot. at 10 (citing Ex. 5).)  Finally, although Exhibit 14 shows that Montag asked 
questions related to “pre-paid fraud losses,” this does not demonstrate Montag 
possesses uniquely relevant information that cannot be obtained from existing sources.  
(Ex. 14.)  Accordingly, the Court finds that BANA has sufficiently explained and 
supported its objections to adding Montag as an ESI custodian.  See Superior Commc’ns, 
257 F.R.D. at 217.  ESI discovery from Montag is DENIED. 
C. Catherine Bessant 
 
Catherine Bessant was the Chief Operations and Technology Officer of BANA until 
2021.  (Pls.’ Mot. at 2.)  Plaintiffs contend Exhibits 4 and 13 show that Bessant, in 
conjunction with other executives, directed changes to the Bank’s claims-processing 
procedures.  (See Pls.’ Opp’n at 2.)  Additionally, Plaintiffs argue Exhibits 1, 2, 4, 6, and 
9—emails that were either sent to/from Bessant or mention her by name—support 
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2672   Page 9 of 12

 
10 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
adding Bessant as an ESI custodian.  (See Pls.’ Mot. at 5–6.)  In response, BANA once 
again argues that these Exhibits do not show anything more than Bessant’s general 
awareness, which is not enough to add her as a custodian.  (See Def.’s Mot. at 7–10; 
Def.’s Opp’n at 2–3.)   
 
Courts have allowed ESI discovery of executives when they are shown to have 
unique knowledge of the subject matter.  See In re Facebook Litig., 2021 WL 10282213, 
at *1; Blackberry Ltd., 2019 WL 4544425, at *6 (considering only whether custodians 
have “unique or personal knowledge of the subject matter”).  Here, the Court finds 
Bessant is an appropriate document custodian because she is likely to have unique 
knowledge relevant to key issues in this case, such as BANA’s use of the Claim Fraud 
Filter.  For example, Exhibit 1 shows Bessant agreed to look at the “prepaid card 
situation” and was later tasked with briefing the Board on prepaid card issues.  (Def.’s 
Mot. at 9; Ex. 1.)  Exhibit 2 shows Bessant directed teams to generate ideas, articulate 
fraud strategies, and manage claims resolution processes.  (Def.’s Mot. at 10; Ex. 2.)  
Additionally, Exhibit 9 shows Bessant conducted a full review of the unemployment 
insurance program and was involved in a presentation related to it.  (Def.’s Mot. at 9; 
Ex. 6.)  These examples appear to go beyond mere awareness.  The Court is not 
convinced that existing custodians are likely to possess the same information, and BANA 
has not met its burden of clarifying why this discovery should be denied.  Superior 
Commc’ns, 257 F.R.D. at 217.  Accordingly, ESI discovery from Bessant is GRANTED and 
she is ORDERED to produce documents responsive to Plaintiffs’ RFPs 76–79. 
D. Dean Athanasia 
Dean Athanasia is the President of Regional Banking of Bank of America.  (Pls.’ 
Mot. at 2.)  Like the other executives already discussed, Plaintiffs contend Exhibits 4 and 
13 show that Athanasia directed changes to the Bank’s claims-processing procedures.  
(See Pls.’ Opp’n at 2.)  Additionally, Plaintiffs argue Exhibits 1, 3, and 6—emails that 
were either sent to/from Athanasia or mention him by name—support adding Athanasia 
as an ESI custodian.  (See Pls.’ Mot. at 5–6.)  In response, BANA reiterates these Exhibits 
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2673   Page 10 of 12

 
11 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
merely show Athanasia’s general awareness, and therefore he should not be added as 
an ESI custodian.  (See Def.’s Mot. at 7–10; Def.’s Opp’n at 2–3.)   
 
Here, the Court finds Athanasia is likely to possess “uniquely relevant 
information” that cannot be obtained from existing sources.  See In re Facebook Litig., 
2021 WL 10282213, at *1.  For example, Exhibit 1 contains emails between Athanasia 
and Bessant regarding prepaid call centers.  (Ex. 1.)  Exhibit 4 shows Athanasia was 
involved in a management team discussion with Bessant and other executives, which 
resulted in changes to BANA’s processes for EDD Debit Cardholders.  (Def.’s Mot. at 10; 
Ex. 6.)  Exhibit 6 contains emails where Athanasia gave feedback to an existing 
custodian, O’Neill, on an update regarding BANA’s unemployment insurance program.  
(Def.’s Mot. at 9; Ex. 6.)  Based on these documents, it appears Athanasia has unique 
and personal knowledge about several key issues in this case, including call centers and 
the Claim Fraud Filter.  See Blackberry Ltd., 2019 WL 4544425, at *6.  As with Bessant, 
the Court is not convinced that existing custodians are likely to possess the same 
information as Athanasia.  Because BANA has not met its burden of clarifying why this 
discovery should be denied, ESI discovery from Athanasia is GRANTED.  Superior 
Commc’ns, 257 F.R.D. at 217.  Athanasia is ORDERED to produce documents responsive 
to Plaintiffs’ RFPs 76–79. 
E. Christine Channels 
 
Christine Channels is the Head of Client Services and Credit Assistance of Bank of 
America.  (See Def.’s Mot. at 6.)  Plaintiffs say BANA conceded Channels is one of the 
individuals “most likely to possess non-duplicative, relevant ESI pertaining to the issues 
remaining in the case.”  (Pls.’ Mot. at 7.)  In support, Plaintiffs highlight several 
interrogatory responses where BANA identified Channels as being involved with the 
Claim Fraud Filter and other relevant case issues.  (Id. (citing Ex. 18).)  BANA does not 
currently object to adding Channels as an ESI custodian, “subject to the parties’ 
negotiation of appropriate search parameters.”  (See Def.’s Mot. at 6 n. 2.)  Moreover, 
the Court finds that the cited interrogatory responses support a finding that Channels is 
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2674   Page 11 of 12

 
12 
21md2992-GPC (MSB) 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
likely to possess “uniquely relevant information that is not available from the sources 
already designated.”  See In re Facebook Litig., 2021 WL 10282213, at *1.  Accordingly, 
ESI discovery from Channels is GRANTED, subject to the negotiation of appropriately 
narrow search terms and de-duplication of ESI across custodians.  See Rusoff v. Happy 
Grp., Inc., No. 21CV08084YGRLJC, 2023 WL 114224, at *4 (N.D. Cal. Jan. 5, 2023).   
F. Non-executives  
 
Based on the excerpted organizational charts [Ex. 20], and considering the 
addition of Bessant, Athanasia, and Channels as ESI custodians, the Court finds ESI from 
non-executives is highly likely to be duplicative and not proportional to the needs of this 
case.  See generally Fed. R. Civ. P. 26(b)(1) (noting an objective for courts to guard 
against redundant or disproportional discovery).  Furthermore, BANA represents that 
Plaintiffs already have ESI from Jennifer Boussuge, Renee Johnson, and Rocco Blasi’s 
direct supervisors, as well as other leaders in their departments.  (Def.’s Opp’n at 4.)  
Plaintiffs have not shown that these non-executives are likely to possess unique 
documents that cannot be obtained from existing custodians.  Thus, the Court finds 
BANA has met its burden of clarifying why this discovery should be denied, based on it 
being potentially duplicative or redundant.  Superior Commc’ns, 257 F.R.D. at 217.  ESI 
discovery from Boussuge, Johnson, and Blasi is DENIED.   
V. 
CONCLUSION 
 
For the foregoing reasons, Plaintiffs’ request for ESI discovery from Catherine 
Bessant, Dean Athanasia, and Christine Channels is GRANTED.  Plaintiffs’ request for ESI 
discovery from Brian Moynihan, Thomas Montag, Jennifer Boussuge, Renee Johnson, 
and Rocco Blasi is DENIED.   
 
IT IS SO ORDERED. 
Dated:  April 24, 2024 
 
Case 3:21-md-02992-GPC-MSB   Document 268   Filed 04/24/24   PageID.2675   Page 12 of 12

File and source

File

gov.uscourts.casd.709615.268.0.pdf

Size

275,726 bytes

SHA-256

1de50b0157b79009dc9049fbcda98da1be774111c7880ce2197a271dc0d4d237

Our copy

gov.uscourts.casd.709615.268.0.pdf

Original

PACER (login required)