SUPPLEMENTAL BRIEFING by Defendant Bank of America, N.A. re 205 Order, . (McGarry,… — Bofa Ca Unemployment (Dkt. 209)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 209 · 2024-01-23 · Docket on CourtListener

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MOT. TO PRECLUDE ADD’L ESI DISCOVERY i 
CASE NO. 21-MD-02992-LAB-MSB 
 
 
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JAMES W. MCGARRY (admitted 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 
YVONNE W. CHAN (admitted pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA  02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
Attorneys for Defendant  
BANK OF AMERICA, N.A. 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA  
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
 
Case No. 21-MD-02992-LAB-MSB 
MEMORANDUM OF POINTS 
AND AUTHORITIES IN 
SUPPORT OF DEFENDANT’S 
MOTION TO PRECLUDE 
ADDITIONAL ESI DISCOVERY 
 
Date:  N/A, per Dkt. 205      
Time: N/A, per Dkt. 205       
Ctrm:  2C      
Judge: Hon. Michael S. Berg      
 
Filed/Lodged Concurrently with: 
1. Declaration of James W. 
McGarry 
2. Declaration of Dustin Anderson 
3. [Proposed] Order 
Case 3:21-md-02992-GPC-MSB     Document 209     Filed 01/23/24     PageID.2024     Page 1
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY ii 
CASE NO. 21-MD-02992-LAB-MSB 
 
 
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TABLE OF CONTENTS 
 
 
INTRODUCTION ..................................................................................................... 1 
PROCEDURAL BACKGROUND ........................................................................... 1 
ARGUMENT ............................................................................................................. 3 
CONCLUSION .......................................................................................................... 8 
 
 
 
 
 
 
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY iii 
CASE NO. 21-MD-02992-LAB-MSB 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Federal Cases 
Blackberry Ltd. v. Facebook., Inc., 
Case No. CV 18-1844-GS (KSx), 2019 WL 4544425 (C.D. Cal. Aug. 19, 
2019) ..................................................................................................................................... 1, 3 
In re Facebook, Inc. Consumer Priv. User Profile Litig., 
Case No. 3:18-MD-02843-VC-JSC, 2021 WL 10282213 (N.D. Cal. Nov. 14, 
2021) ......................................................................................................................................... 4 
Harris v. Union Pacific R.R., 
Case No. 8:16CV381, 2018 WL 2729131 (D. Neb. June 6, 2018) ........................................... 4 
Lutzeier v. Citigroup, Inc., 
Case No. 4:14-cv-00183-RLW, 2015 WL 430196 (E.D. Mo. Feb. 2, 2015) ........................... 4 
 
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY 1 
CASE NO. 21-MD-02992-LAB-MSB 
 
 
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INTRODUCTION 
Plaintiffs challenge a Bank of America, N.A. (“BANA” ) fraud strategy that 
was conceptualized, implemented, and eliminated in a 9-month period, from late 
September 2020 to early June 2021.  Despite the narrow set of facts from which their 
allegations stem, Plaintiffs have demanded and received wide-ranging discovery, 
including more than 200,000 documents from 20 custodians, three non-custodian 
mailboxes, six targeted databases, and all of the relevant board and board committee 
materials.  BANA has spent more than $4.5 million—and counting—on vendor costs 
alone to comply with Plaintiffs’ overbroad demands.  Plaintiffs themselves have been 
unable to parse the vast materials they have demanded and received, and have even 
asked BANA to tell them which materials are important.  Now, Plaintiffs seek even 
more ESI, including from five of BANA’s top executives.  The Court should not 
allow it. 
Courts limit discovery from top executives where the requesting party cannot 
show that the executives were decision makers for the key issues in the case.  See 
Blackberry Ltd. v. Facebook., Inc., Case No. CV 18-1844-GS (KSx), 2019 WL 
4544425, at *6 (C.D. Cal. Aug. 19, 2019).  This is because it is improper for litigants 
to use the burden and expense of overbroad discovery demands as leverage for 
settlement.  But that is what Plaintiffs attempt here.  They have ESI from BANA’s 
key decision makers on the fraud filter, EMV and customer service issues that remain 
in their case.  They have data, metrics, and reports regarding the same.  They have 
all of the information BANA’s board and board committees received on these issues.  
They even have documents provided to BANA’s regulators in response to regulatory 
investigations of these same issues.   
To require more would be out of proportion to the needs of this case. 
PROCEDURAL BACKGROUND 
The Limited Scope of Plaintiffs’ Allegations.  Plaintiffs primarily allege that 
BANA should not have used the fraud filter to deny error claims or to freeze or block 
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY 2 
CASE NO. 21-MD-02992-LAB-MSB 
 
 
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EDD prepaid accounts.  First Amended Master Consolidated Complaint, Dkt. 136 
(“FAMCC”), ¶¶ 89-96.  The fraud filter was used to decision claims only for 
approximately 9 months, from late September 2020 until early June 2021.  Id. ¶¶ 89, 
110.  Plaintiffs also allege that BANA’s failure to use EMV chip technology for EDD 
prepaid cards exposed their accounts to fraud and that BANA’s customer service was 
inadequate over the same pandemic time period.  See id. ¶ 2.     
BANA’s Discovery Efforts.  BANA has expended enormous resources to 
provide Plaintiffs with discovery pursuant to the Court’s expedited schedule.  On top 
of substantial pre-motion-to-dismiss discovery, data compilations, targeted 
collections, board materials and materials provided to BANA’s regulators, ESI 
discovery has already been extensive.  With the Court’s assistance, the parties agreed 
that BANA would review and produce ESI from 20 custodians, spanning 9 functional 
groups within BANA, and including the key decision makers on each of the fraud 
filter (9 custodians), EMV (8 custodians) and customer service and claims processing  
(4 custodians).  Declaration of James W. McGarry (“McGarry Decl.”), ¶ 4.  BANA 
reviewed more than 765,000 documents and produced nearly 200,000 documents in 
two months, and more than 200,000 documents to date.  Id. ¶ 5; see also Declaration 
of Dustin Anderson (“Anderson Decl.”) ¶ 5.  To do so, BANA enlisted more than 
400 contract reviewers at a cost of more than $4.5 million, to say nothing of outside 
counsel expenses.  Anderson Decl. ¶ 6.1   
Indeed, Plaintiffs seem to have realized that they asked for too much, and have 
resorted to interrogatories asking BANA to identify the documents in the production 
that are important to Plaintiffs’ case.  See McGarry Decl. ¶ 7 (Plaintiffs’ Interrogatory 
No. 24 asks BANA, among other things, to “IDENTIFY all DOCUMENTS” in its 
 
1 The expense was driven in part by Plaintiffs’ overbroad search terms.  Even with 
the use of a TAR algorithm, designed to prioritize the documents most likely to be 
relevant for review, BANA was forced to review more than 765,000 of the 
approximately 1 million documents in the revised search population.  Of the 
documents in the review population that contained Plaintiffs’ search terms, only 24% 
of them were responsive.  McGarry Decl. ¶ 6. 
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY 3 
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productions “that reference, reflect, or otherwise evidence any actions” or that 
“expressly reference” BANA’s “failure to take any actions . . . to test, ascertain, 
measure, or estimate the actual or likely accuracy, inaccuracy, effectiveness, or 
ineffectiveness of the CLAIM FRAUD FILTER and/or any [of] its criteria”). 
Plaintiffs’ Request For More ESI.  Despite having demanded and received 
more discovery than they can apparently digest, Plaintiffs now seek even more.  
Among other things, they want ESI from five of BANA’s top executives: Brian 
Moynihan (CEO), Thomas Montag (President of Global Banking and Markets and 
COO until December 2021), Catherine Bessant (Chief Operations and Technology 
Officer until 2021), Dean Athanasia (President of Regional Banking), and Christine 
Channels (Head of Client Services and Credit Assistance).  McGarry Decl. ¶ 8.   
The vendor costs alone of ESI discovery for these five custodians would 
exceed $1.4 million.  Anderson Decl. ¶ 10.  More concerning, however, is Plaintiffs’ 
attempt to use discovery as leverage for settlement by exposing BANA’s top 
executives to unwarranted harassment.  Plaintiffs’ intent to harass is clear.  To the 
extent Plaintiffs believe they need more ESI (BANA disagrees), BANA offered eight 
more custodians who were involved in the fraud filter and other relevant issues, 
including Channels.  McGarry Decl. ¶ 9.  Plaintiffs rejected BANA’s compromise 
proposal, and insisted on ESI from all five top executives.  Id.2  Indeed, at a prior 
IDC, Plaintiffs’ counsel expressly told the Court that the top executive emails were 
necessary because “they resolve cases.  They settle cases.”  Id. ¶ 10. 
ARGUMENT 
Courts allow document discovery from top executives only where the 
executives were involved in decision making relating to key issues in the case.  In 
Blackberry, 2019 WL 4544425, at *6, the court held that mere “discussions at ‘the 
highest level’ about” the issues in the case were “too attenuated” to justify searching 
 
2 BANA does not object to adding Channels as an ESI custodian, subject to the 
parties’ negotiation of appropriate search parameters.   
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY 4 
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the CEO’s emails.  The court in In re Facebook, Inc. Consumer Priv. User Profile 
Litig., Case No. 3:18-MD-02843-VC-JSC, 2021 WL 10282213, at *2 (N.D. Cal. 
Nov. 14, 2021) applied the same standard and allowed ESI searches of Facebook’s 
top two executives based on documents in which both executives identified 
themselves as being involved in “decision making” on “issues at the heart of 
Plaintiffs’ allegations.”  Even where top executives have relevant information, courts 
will nonetheless deny discovery absent a showing that they have “unique or personal 
knowledge” that “is necessary and not cumulative.”  Harris v. Union Pacific R.R., 
Case No. 8:16CV381, 2018 WL 2729131, at *4 (D. Neb. June 6, 2018) (emphasis 
added) (denying collection of CEO’s documents absent showing they contain unique 
information); see also Lutzeier v. Citigroup, Inc., Case No. 4:14-cv-00183-RLW, 
2015 WL 430196, at *6-7 (E.D. Mo. Feb. 2, 2015) (same).3 
Here, the key issues are BANA’s use of the fraud filter to decision error claims 
and freeze or block suspected fraudulent accounts, BANA’s use of EMV chip 
technology for EDD prepaid cards and customer service of those cards.  Thus, to 
justify the discovery they seek, Plaintiffs must show that the executives were the key 
decision makers regarding the fraud filter, EMV, and customer service.  But they 
cannot do so.  In the IDC process, Plaintiffs attempted to satisfy this standard by 
pointing to—and mischaracterizing—13 documents.  These documents show only 
that BANA’s top executives received updates on the prepaid card program, including 
the unprecedented levels of unemployment claims and fraud and BANA’s response.  
But there is a difference between “the executives were involved and making 
decisions,” which courts have found sufficient to justify discovery, and “the 
executives were aware,” which courts have found insufficient.  The basic awareness 
Plaintiffs have shown with their cited documents is not enough. 
 
3 The cases cited in Plaintiffs’ IDC letter apply the same standard, and allowed 
discovery because the proponent identified evidence that the executives were 
decision makers relating to the key issues in those cases.   
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY 5 
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First, Plaintiffs concede that only three of the documents are even remotely 
relevant to decision-making.  But Plaintiffs’ claims that these documents show 
executive “approval” or “direction” of fraud filter and customer service decisions are 
dubious.  See IDC Ltr. at 1.4  Plaintiffs say Ex. 5 (-1860) “show[s] Montag’s approval 
was required for contracts relating to call center services,” (id.), but the document 
makes clear that Montag was not involved in the contract negotiations.  Plaintiffs 
already have ESI from the decision makers on that email who were seeking 
perfunctory sign-off from Montag.  Plaintiffs’ claims regarding Ex. 7 (-3818) fare no 
better.  They say this chat “indicat[es] that Moynihan approved the use of the Claim 
Fraud Filter to freeze 46k cards.”  Id.  Not so.  In the chat, a BANA employee asks 
whether “Brian” approved “moving forward,” to which an existing custodian 
responds “we are freezing all the atm/combo cards but that’s all we have approval 
for.”  There is no indication who approved the freeze, particularly given the 
implication that other actions required further approval from unnamed individuals.  
And no court has ordered the collection of a global bank’s CEO’s emails based on a 
single document, particularly where the document does not clearly show that the 
CEO was a key decision-maker, and where Plaintiffs have demanded and received 
ESI from nine other custodians who were decision-makers for account freezes.  As 
for Ex. 13 (-1044), which Plaintiffs say “show[s] Moynihan directed changes to 
claims processing strategy,” (id. at 2), this is an email from Channels that says only 
that “BTM [Moynihan] asked for claims to be decisioned faster than 4-7 days,” but 
the number of days it took BANA to process claims is not an issue in this case, and 
the email does not reflect any decision-making by Moynihan.   
Second, Plaintiffs don’t even try to suggest that their remaining documents 
satisfy the “decision-maker on key issues” standard, arguing instead the completely 
 
4 The Court is in possession of Plaintiffs’ IDC materials.  The BANA emails are 
identified herein by the exhibit numbers in Plaintiffs’ IDC Letter, and by the last four 
digits of their Bates number.  BANA can re-submit the McGarry Declaration, along 
with a motion to file the designated confidential materials under seal, should the 
Court desire.  See McGarry Decl. ¶ 11.     
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unsurprising—and insufficient—fact that BANA’s top executives were aware of 
certain issues in the prepaid card program.  For example, several of the documents 
Plaintiffs cite underscore the unremarkable position that BANA’s top executives and 
board received updates on the prepaid card program.  Plaintiffs claim Ex. 1 (-6092) 
“show[s] Moynihan asked Bessant to brief the [board] on prepaid card issues.”  Id. 
at 1.  But “brief[ing]” others on issues does not make one a decision-maker.  This 
email also demonstrates Plaintiffs’ overreach, as it shows Bessant did not have the 
information for briefing, and so reached out to Ahmad, a custodian whose ESI 
Plaintiffs already have.  Moreover, any information Bessant actually presented to the 
board would be reflected in the board materials Plaintiffs already have.  Similarly, 
Plaintiffs say Exs. 10-12 (-6000, -6010, -6058) “show[] Moynihan reported and 
provided memos to the Board” on relevant issues.  Id. at 2.  But if any of these emails 
resulted in relevant board materials, Plaintiffs already have them.  And none of them 
suggest that Moynihan made decisions on the fraud filter, EMV, or customer service. 
Other documents demonstrate that the top executives Plaintiffs seek were 
merely provided with information by existing custodians.  Plaintiffs say Ex. 6 (-8970) 
“show[s] Bessant and Athanasia provided input regarding [relevant] talking points 
for [a] meeting with Moynihan,” (id. at 1), but this email shows only feedback from 
Athanasia to existing custodian O’Neill about the formatting and organization of her 
email update; the update itself, drafted by O’Neill, concerned work done by 
custodians whose ESI Plaintiffs already have or have been offered, including fraud 
(Simpson), claims (Channels), call centers (Simpson), and state contracts (Lawlor 
and Ahmad).  Plaintiffs—with no support—say Ex. 9 (-9408) “show[s] Bessant 
conducted [an] end-to-end review of [the] UI card program,” (id. at 1-2), but this 
email is from existing custodian Chestnut regarding a presentation titled “Cathy 
Bessant UI E2E Benefit Program Review,” and references decisions by Garfield and 
Lawlor, both existing custodians.  Bessant is not on the email or otherwise referenced, 
which could just as easily indicate the review was prepared for her.  In any event, it 
Case 3:21-md-02992-GPC-MSB     Document 209     Filed 01/23/24     PageID.2032     Page 9
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY 7 
CASE NO. 21-MD-02992-LAB-MSB 
 
 
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does not show she had any decision-making role on these issues.  The same goes for 
Exs. 4 (-8379) and 8 (-6191).  Referencing these documents, Plaintiffs argued during 
the January 3, 2024 IDC that there were “MTM meetings” among top executives that 
did not include existing custodians, but that is incorrect.  Existing custodian O’Neill 
is a member (see McGarry Decl. ¶ 12), other existing custodians often presented at 
MTM meetings (id ¶ 13), and BANA produced the presentations showing what was 
discussed at the meetings (id. ¶ 14).  In any event, receiving updates at meetings does 
not make each executive a decision-maker. 
The remaining documents are emails that were sent to or from multiple existing 
custodians, and for which Plaintiffs offer no reason to think the top executives made 
any decisions.  Plaintiffs say Ex. 2 (-6573) “show[s] Moynihan and Bessant directed 
teams to ‘generate ideas and articulate Fraud Strategies’ and manage claims 
resolution processes.”  IDC Ltr. at 1.  But the email shows only that O’Neill (an 
existing custodian) communicated to four other existing custodians (Ahmad, Lawlor, 
Ehresman and Simpson) an update from a meeting with the top executives during 
which prepaid issues were discussed, and nowhere suggests that Moynihan or 
Bessant “directed” anyone to do anything.  Plaintiffs say Ex. 3 (-8366) “indicat[es] 
Athanasia and Montag were responsible for briefing Moynihan about potential 
operational losses relating to prepaid claims fraud,” (id.), but a review of the email 
reveals that when a question was raised about the amount of prepaid fraud losses 
(which did not involve decision-making), the top executives did not have the relevant 
information and reached out to offered custodian Channels and existing custodian 
Ehresman to obtain the relevant information.     
During the January 3, 2024 IDC, the Court suggested a tentative decision 
allowing for three executive ESI custodians of Plaintiffs’ choosing.  Plaintiffs already 
have what they need; more would be overly burdensome and disproportionate.  
However, if additional ESI discovery is allowed, it should be limited to custodians 
Case 3:21-md-02992-GPC-MSB     Document 209     Filed 01/23/24     PageID.2033     Page
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY 8 
CASE NO. 21-MD-02992-LAB-MSB 
 
 
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Plaintiffs have shown were decision-makers for key issues—not simply an invitation 
for Plaintiffs to put pressure on BANA by choosing the top three executives.   
CONCLUSION 
For the foregoing reasons, BANA respectfully requests that the Court grant 
this motion and issue an order precluding additional ESI discovery. 
 
Dated:   January 23, 2024 
Respectfully submitted, 
 
By: s/ James W. McGarry_________ 
 
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 
THOMAS M. HEFFERON (pro hac vice) 
THefferon@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N St. NW  
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA  02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
MATTHEW B. NAZARETH (SBN 
278405) 
mnazareth@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650 
San Diego, CA 92101 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 209     Filed 01/23/24     PageID.2034     Page
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MOT. TO PRECLUDE ADD’L ESI DISCOVERY 9 
CASE NO. 21-MD-02992-LAB-MSB 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on January 23, 2024.  I further certify that all participants 
in the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system. I certify under penalty of perjury that the foregoing is true and 
correct. 
 
 
 
Executed: 
January 23, 2024 
 
s/ James W. McGarry 
 
 
 
 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 209     Filed 01/23/24     PageID.2035     Page
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