Declaration of James W. McGarry — In re Bank of America California Unemployment Benefits Litigation (Dkt. 209-1, 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. 209-1 · 2024-01-23 · Docket on CourtListener

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MCGARRY DECL. ISO MOT. TO PRECLUDE   
CASE NO. 21-MD-02992-LAB-MSB 
ADD’L ESI DISCOVERY  
 
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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 
DECLARATION OF JAMES W. 
MCGARRY IN SUPPORT OF 
DEFENDANT’S MOTION TO 
PRECLUDE ADDITIONAL ESI 
DISCOVERY 
 
Filed/Lodged Concurrently with: 
1. Mem. of Points and Auth. ISO 
Motion to Preclude Additional 
ESI Discovery 
2. Declaration of Dustin Anderson 
3. [Proposed] Order 
 
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MCGARRY DECL. ISO MOT. TO PRECLUDE   
CASE NO. 21-MD-02992-LAB-MSB 
ADD’L ESI DISCOVERY   
 
 
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I, James W. McGarry, state and declare as follows: 
1. 
I am a partner with the law firm of Goodwin Procter LLP, and counsel 
of record for Defendant Bank of America, N.A. (“BANA”) in the above-captioned 
lawsuit.   
2. 
I have personal knowledge of the facts set forth in this declaration, and 
if called upon to do so, I could and would competently testify thereto. 
3. 
I make this declaration in support of BANA’s Motion to Preclude 
Additional ESI Discovery. 
4. 
With the Court’s assistance, the parties previously agreed that BANA 
would collect ESI from 24 custodians, and review and produce ESI from 20 of those 
custodians.  Those custodians spanned 9 functional groups within BANA, and 
included the key decision makers on each of Plaintiffs’ allegations, including the 
fraud filter and its use to decision error claims and freeze and/or block accounts (at 
least 9 custodians: Faiz Ahmad, Kevin Condon, Jennifer Ehresman, William Fox, 
Brad Garfield, Melissa Gargagliano, Michael Letson, Holly O’Neill, and Paul 
Simpson), the use of EMV technology for EDD prepaid cards (at least 8 custodians:  
Robert Chestnut, Sabrina Clark, Kevin Condon, Dawn Haddock, Louise Hennessy, 
John Lawlor, William (Matt) Martin, and Katie Smith) and customer service and 
claims processing for EDD prepaid cards (at least 4 custodians:  Shane Daniels, Doris 
Dixon, William Golden, and Louise Nail).  Many of these custodians were also key 
decision makers on more than one of the fraud filter, EMV, and customer service 
issues. 
5. 
In connection with the parties’ previous agreement regarding ESI 
discovery and the Court’s direction, BANA reviewed more than 765,000 documents 
and produced nearly 200,000 documents over the course of two months, from 
October 2023 to December 2023, and has produced more than 200,000 documents to 
date.   
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MCGARRY DECL. ISO MOT. TO PRECLUDE   
CASE NO. 21-MD-02992-LAB-MSB 
ADD’L ESI DISCOVERY   
 
 
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6. 
The search terms Plaintiffs demanded BANA use for this ESI review 
were overbroad.  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. 
7. 
On November 20, 2023, Plaintiffs served BANA with Interrogatory 
No. 24, asking BANA to, among other things, “IDENTIFY all DOCUMENTS” in its 
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.”  
Attached hereto as Exhibit 1 is a true and correct copy of Plaintiffs’ Interrogatory 
No. 24. 
8. 
The additional ESI discovery Plaintiffs now seek includes 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).   
9. 
In an effort at compromise, and before BANA understood the full cost 
of the ESI discovery incurred to date, BANA offered eight additional ESI custodians 
that were identified in BANA’s interrogatory responses as involved in the fraud filter 
and other relevant issues, including Christine Channels.  Plaintiffs rejected BANA’s 
compromise proposal, and continued to insist on ESI collection from all five top 
executives. 
10. 
During the late summer and fall of 2023, the Court held informal 
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MCGARRY DECL. ISO MOT. TO PRECLUDE   
CASE NO. 21-MD-02992-LAB-MSB 
ADD’L ESI DISCOVERY   
 
 
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discovery conferences (“IDCs”) at which Plaintiffs’ request for top executive ESI 
discovery was discussed.  During one of those IDCs, Plaintiffs’ counsel told the Court 
that the top executive emails were necessary because “they resolve cases.  They settle 
cases.”   
11. 
The Court held another IDC on January 3, 2024.  The parties submitted 
letters in advance of that IDC explaining their respective positions as to whether 
additional ESI discovery should be permitted.  BANA is not including Plaintiffs’ IDC 
Letter, Index of Exhibits, and Exhibits thereto here in an effort to make this 
submission less cumbersome, because the Court already has these materials in 
connection with the IDC process, and because the Exhibits were designated 
CONFIDENTIAL pursuant to the applicable Protective Order, Dkt. 82, as they 
reflect BANA’s internal fraud processes, customer claims, and proprietary business 
information.  If it would be helpful for the Court to have these previously-lodged 
materials attached to this submission, BANA would be happy to re-submit this 
Declaration, along with a motion to file the designated materials under seal. 
12. 
During the January 3, 2024 IDC, Plaintiffs argued that there were 
“MTM meetings” among the top executives that did not include existing custodians.  
That is incorrect.  Existing custodian Holly O’Neill is a member of the MTM group.  
See 
https://newsroom.bankofamerica.com/biographies?cm_re=EBZ-
Corp_SocialResponsibility-_-About_Us-_-EI38LT000B_About_Us_Biography  
(identifying MTM group). 
13. 
Based on my review of documents produced by BANA, I understand 
that other existing custodians also often presented at MTM meetings, including Paul 
Simpson and Faiz Ahmad.     
14. 
Also based on my review of documents produced by BANA, I 
understand that BANA has also produced MTM presentations showing what was 
discussed at those meetings.   
Case 3:21-md-02992-GPC-MSB     Document 209-1     Filed 01/23/24     PageID.2039     Page
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MCGARRY DECL. ISO MOT. TO PRECLUDE   
CASE NO. 21-MD-02992-LAB-MSB 
ADD’L ESI DISCOVERY   
 
 
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I declare under penalty of perjury under the laws of the United States that the 
foregoing is true and correct.  Executed on January 23, 2024, in Boston, 
Massachusetts. 
 
 
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 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
 
 
 
 
 
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EXHIBIT  1 
Case 3:21-md-02992-GPC-MSB     Document 209-1     Filed 01/23/24     PageID.2041     Page
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Plaintiff Yick’s Third Set of Interrogatories 
Case No. 3:21-MD-02992-LAB-MSB 
Contains information designated CONFIDENTIAL and HIGHLY CONFIDENTIAL – AEO 
 
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JOSEPH W. COTCHETT (SBN 36324) 
jcotchett@cpmlegal.com 
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 
 
Co-Lead Counsel for Plaintiffs 
and the Proposed Class  
MICHAEL RUBIN (SBN 080618) 
mrubin@altber.com 
STACEY M. LEYTON (SBN 203827) 
sleyton@altber.com 
MATTHEW MURRAY (SBN 271461) 
mmurray@altber.com 
CONNIE K. CHAN (SBN 284230) 
cchan@altber.com 
JAMES BALTZER 
jbaltzer@altber.com (SBN 332232) 
ALTSHULER BERZON LLP 
177 Post Street, Suite 300 
San Francisco, CA  94108 
Telephone:  (415) 421-7151 
Fax:  (415) 362-8064 
 
 
 
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  
PLAINTIFF YICK’S THIRD SET OF 
INTERROGATORIES 
This Document Relates to All Actions 
 
PROPOUNDING PARTY: Plaintiff Jennifer Yick 
RESPONDING PARTY: Defendant Bank of America, N.A. 
SET NUMBER: Three 
 
Highlighted portions of these Interrogatories contain information designated by Defendant as 
CONFIDENTIAL (highlighted yellow) or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 
ONLY (highlighted green) under the Stipulated Protective Order entered in this action.
Case 3:21-md-02992-GPC-MSB     Document 209-1     Filed 01/23/24     PageID.2042     Page
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Plaintiff Yick’s Third Set of Interrogatories to Defendant  
Case No. 3:21-md-02992-LAB-MSB 
HIGHLY CONFIDENTIAL – AEO with respect to underscored portions of Interrogs. Nos. 21, 22, 24, and 28
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otherwise develop the criteria used by the CLAIM FRAUD FILTER, including but not limited to 
the dates when such processes occurred; the IDENTITY of all PERSONS involved in the process 
(including but not limited to YOUR employees and agents, third-party consultants, and any law 
enforcement agents); the name of any third-party product that was a source of any criteria or any 
part of any criteria of the CLAIM FRAUD FILTER; a description of all potential alternative anti-
fraud strategies or CLAIM FRAUD FILTER criteria that YOU considered but ultimately did not 
use; and all of YOUR reasons at the time for deciding not to use those potential alternatives. 
INTERROGATORY NO. 24 
 
IDENTIFY all DOCUMENTS that reference, reflect, or otherwise evidence any actions 
that YOU took or caused to be taken, or that expressly reference YOUR failure to take any 
actions, at any time from March 1, 2020 to the present to test, ascertain, measure, or estimate the 
actual or likely accuracy, inaccuracy, effectiveness, or ineffectiveness of the CLAIM FRAUD 
FILTER and/or any its criteria (including but not limited to any of its three “Indicators” and 
Indicator 3 “Features” as described in BANA_EDD_MDL-00005524) in correctly or incorrectly 
decisioning CLAIMS, including but not limited to all DOCUMENTS that reflect any calculation 
YOU made or caused to be made of the actual, estimated, or likely “false positive” rate or ratio 
(however YOU use those terms in the ordinary course of business) of the CLAIM FRAUD 
FILTER and/or any of its criteria. 
INTERROGATORY NO. 25 
 
If YOU contend that YOUR use of the CLAIM FRAUD FILTER as the sole basis for 
making ADVERSE CLAIM DECISIONS constituted a “good faith investigation” of such 
CLAIMS under EFTA, including but not limited to under 15 U.S.C. §1693f(e)(1)(A), state all 
facts, IDENTIFY all DOCUMENTS, and IDENTIFY all witnesses and testimony that YOU 
contend support that contention. 
INTERROGATORY NO. 26 
If YOU contend that a CLAIM meeting the criteria of the CLAIM FRAUD FILTER’s 
“Indicator 1” (as described in BANA_EDD_MDL-00005524) provided YOU, on its own, a 
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