Declaration of Connie K. Chan — In re Bank of America California Unemployment Benefits Litigation (Dkt. 212-1, 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. 212-1 · 2024-01-23 · Docket on CourtListener

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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
Case No.: 3:21-md-02992-LAB-
MSB 
 
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 
MICHAEL RUBIN (SBN 80618) 
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 
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 
 
DECLARATION OF CONNIE K. 
CHAN IN SUPPORT OF 
PLAINTIFFS’ MOTION TO 
COMPEL ADDITIONAL ESI 
CUSTODIANS 
This Document Relates to All Actions 
 
Judge: 
Hon. Larry Alan Burns 
 
 
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1 
DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
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 Plaintiffs’ Motion to Compel Additional ESI Custodians. 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. 
An Index of Exhibits to this declaration is attached to this declaration. 
3. 
Attached hereto as Exhibit 1 is a true and correct copy of a document 
produced by Defendant Bank of America (“Defendant” or the “Bank”) in this action 
Bates-stamped BANA_EDD_MDL-00106092-94. 
4. 
Attached hereto as Exhibit 2 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00106573. 
5. 
Attached hereto as Exhibit 3 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00118366. 
6. 
Attached hereto as Exhibit 4 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00118379-81. 
7. 
Attached hereto as Exhibit 5 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00141860. 
8. 
Attached hereto as Exhibit 6 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00188970-72. 
9. 
Attached hereto as Exhibit 7 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00293818-21. 
10. 
Attached hereto as Exhibit 8 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00376191-201. 
11. 
Attached hereto as Exhibit 9 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00389408-09. 
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2 
DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
Case No.: 3:21-md-02992-LAB-
MSB 
 
12. 
Attached hereto as Exhibit 10 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00516000. 
13. 
Attached hereto as Exhibit 11 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00516010-11. 
14. 
Attached hereto as Exhibit 12 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00516058. 
15. 
Attached hereto as Exhibit 13 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00571044. 
16. 
Attached hereto as Exhibit 14 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00171972-73. 
17. 
Attached hereto as Exhibit 15 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00105556. 
18. 
Attached hereto as Exhibit 16 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00090683-86. 
19. 
Attached hereto as Exhibit 17 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00018423-28. 
20. 
Attached hereto as Exhibit 18 is a true and correct copy of Bank of 
America’s Responses and Objections to Plaintiffs’ Interrogatories 11-13, and 
Verification. 
21. 
Attached hereto as Exhibit 19 is a true and correct copy of a production 
cover letter from the Bank’s counsel dated October 20, 2023, describing the 
documents Bates-stamped BANA_EDD_MDL-00057837–78. 
22. 
Attached hereto as Exhibit 20 is a true and correct copy of excerpts of 
a document produced by Defendant Bates-stamped BANA_EDD_MDL-00057837–
78.  
23. 
Attached hereto as Exhibit 21 is a true and correct copy of Defendant’s 
Responses and Objections to Plaintiffs’ Requests for Production of Documents (Set 
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3 
DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
Case No.: 3:21-md-02992-LAB-
MSB 
 
Three), RFPs 76-79, which Plaintiffs served August 15, 2023 and which seek 
communications and other documents exchanged “with or among any of your 
executive officers,” or with the Bank’s Board, regarding enumerated topics relevant 
to the issues in this case. 
24. 
Since the Court’s order on the Bank’s motion to dismiss Plaintiffs’ 
Master Consolidated Class Action Complaint, Plaintiffs have been diligently 
pursuing discovery and seeking to obtain documents from the Bank’s relevant ESI 
custodians. 
25. 
Plaintiffs served their Second Set of Requests for Production of 
Documents on June 12, 2023. The parties entered into a Stipulated Discovery & 
Search Protocol (“ESI Protocol”), dated June 16, 2023. Among other things, Section 
E.1(a) of the ESI Protocol provides that, “[w]ithin 45 days of stipulating to the ESI 
Protocol, the Parties agree to exchange in writing … [a] list of custodians (including 
current and former executives, employees, and any other individuals) likely to have 
relevant information, including job title and a brief description of job responsibilities 
for each individual ….” The ESI Protocol further provides that “[t]he parties shall 
meet and confer regarding the list of custodians. The receiving party reserves the 
right to request additional custodians after reviewing documents produced.”  
26. 
On July 31, 2023, the parties exchanged ESI disclosures pursuant to the 
ESI Protocol. In the Bank’s ESI disclosures, the Bank identified two service e-mail 
boxes and only five individual custodians: Robert Chestnut, Sabrina Clark, Kevin 
Condon, Dawn Haddock, and John Lawlor. The Bank described all five of these 
individuals as having documents relevant to the Bank’s contract and 
communications with EDD. 
27. 
The parties met and conferred on August 3, 2023 regarding, inter alia, 
the Bank’s ESI disclosures, during which Plaintiffs explained why the Bank’s ESI 
Disclosures were deficient and proposed additional custodians. Plaintiffs’ counsel 
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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
Case No.: 3:21-md-02992-LAB-
MSB 
 
sent a letter on August 4 memorializing the parties’ discussion regarding ESI 
custodians. In that letter, Plaintiffs again identified additional custodian and 
reiterated the Bank’s obligation under FRCP 26(a) and the ESI Protocol to identify 
custodians relating to the following five general categories of topics relevant to this 
litigation: (1) “the Bank’s negotiation and servicing of the EDD-Bank Contract, and 
communications with EDD”; (2) “EDD debit card and account security (including 
the lack of an EMV chip and decisions around adding EMV chips, risk of skimming 
and transaction fraud, risk of data security breaches (including by employee and 
third-party vendor breaches), etc.)”; (3) the Bank’s policies and practices for 
handling EFTA claims made by EDD debit card and account holders, including 
development and application of the ‘Claim Fraud Filter’”; (4) “the Bank’s policies 
and practices for freezing and blocking EDD debit cardholders’ accounts, including 
development and application of the ‘Claim Fraud Filter’”; and (5) “customer service 
for EDD debit card and account holders ….” Plaintiffs proposed adding: (a) 12 
individuals listed in the Bank’s Rule 26(a) initial disclosures (Faiz Ahmad, William 
Fox, Michael Letson, Jennifer Ehresman, William Golden, Melissa Gargagliano, 
Shane Daniels, Holly O’Neill, Paul Simpson, Brad Garfield, Katie Smith, and Doris 
Dixon); (b) five individuals likely to have information related to the Bank’s EDD 
contract based on publicly available information (Brian Putler, Jim Hackett, 
Jonathan Millard, Brian Grech, and Louise Hennessy); (c) CEO Brian T. Moynihan 
and Thomas M. Scrivener, based on their roles as signatories to the OCC Consent 
Order and CFPB Stipulation, respectively; and (d) all other Bank Board Members, 
based on their role as signatories to the OCC Consent Order.   
28. 
On August 7, 2023, the Bank responded to Plaintiffs’ August 4 letter, 
agreeing “to collect and search the remaining 12 individuals identified in BANA’s 
Initial Disclosures and the five individuals that Plaintiffs assert have information 
related to the EDD-Bank Contract ….” The Bank objected to Plaintiffs’ request to 
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5 
DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
Case No.: 3:21-md-02992-LAB-
MSB 
 
include any officers, directors, or board members as custodians, including based on 
its assertion that “none of those individuals are likely to have relevant, non-
privileged communications ….”  
29. 
On August 10, 2023, Plaintiffs proposed another 15 potential 
custodians (for all RFPs) and an additional seven custodians for issue-specific RFPs, 
based on Plaintiffs’ review of the limited documents produced by the Bank as of that 
time. Plaintiffs also served RFPs (Set Three, RFPs 80-81) seeking the Bank’s 
relevant organizational charts. During the parties’ August 18 meet-and-confer, and 
as memorialized in the Bank’s letter dated August 23, the Bank agreed to add two of 
the proposed custodians (William Martin and Louise Nail), bringing the total 
number of agreed-upon custodians to 24. The Bank agreed that both Martin and Nail 
“are likely to possess responsive, relevant, non-duplicative documents,” yet neither 
had been disclosed in either the Bank’s Rule 26(a) initial disclosures or the Bank’s 
July 31 ESI disclosures. This reinforced Plaintiffs’ concerns that the Bank was not 
disclosing all relevant ESI custodians. The parties agreed to defer further negotiation 
of additional “Round 2” ESI custodians until after the Bank satisfactorily produced 
the relevant org charts. 
30. 
Plaintiffs requested an Informal Discovery Conference (IDC) regarding 
the Bank’s refusal to include any senior executives as ESI custodians, which 
Magistrate Judge Berg conducted on September 7, 2023. Although the Court was 
not inclined at the September 7, 2023 IDC to compel the Bank to add high-level 
executives as ESI custodians at that time given the early state of discovery, the 
Court stated it would reconsider Plaintiffs’ request at a later time if documents 
obtained from lower-level custodians showed that executives were likely to have 
relevant information. In the interest of moving the ESI production process forward, 
particularly given the compressed discovery schedule in the case, Plaintiffs elected 
not to request formal briefing on the matter at that time, agreeing instead to proceed 
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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
Case No.: 3:21-md-02992-LAB-
MSB 
 
with negotiating search terms for the 24 agreed-upon “Round 1” custodians while 
reserving their right to renew their request to compel executive ESI custodians after 
having an opportunity to review the “Round 1” documents. 
31. 
Other disputes regarding search terms delayed the Bank’s production of 
ESI from the 24 agreed-upon custodians. Accordingly, in an effort to jump start the 
production of ESI, Plaintiffs on or about September 22, 2023 offered to remove four 
custodians (Jim Hackett, Jonathan Millard, Louise Hennessy, and Kevin Condon) 
from the list of “Round 1” custodians, and to instead discuss them along with other 
potential additional custodians during the parties’ “Round 2” negotiations.  
32. 
The Bank subsequently produced documents from the remaining 20 
“Round 1” custodians. To date, the Bank has produced approximately 200,000 
documents total, the overwhelming majority of which were produced between 
October 23 and December 4, 2023. 
33. 
After having an opportunity to begin reviewing the Bank’s production, 
Plaintiffs requested to meet and confer about (1) the Bank’s responses to Plaintiffs’ 
RFPs 76-79 (seeking executive communications) and (2) additional “Round 2” 
custodians for RFPs Sets Two and Three. In a letter dated November 29, 2023, 
Plaintiffs’ counsel requested that the Bank produce documents from eight executives 
(Brian Moynihan, Thomas Montag, Catherine Bessant, Dean Athanasia, Christine 
Channels, Geoffrey Greener, Paul Donofrio, and Thomas Scrivener), citing specific 
bases for their request. In that same letter, Plaintiffs also proposed 17 additional ESI 
custodians, narrowly tailored to topic-specific RFPs (eight relating to development 
of the Claim Fraud Filter, three relating to claims processing, three relating to card 
security, and four relating to call centers).  
34. 
On December 8, 2023, the Bank’s counsel provided its counterproposal 
for additional ESI collection, identifying Christine Channels, Jennifer Boussuge, 
Renee Johnson, and Scott Robbins as custodians “most likely to possess non-
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DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
Case No.: 3:21-md-02992-LAB-
MSB 
 
duplicative, relevant ESI pertaining to the issues remaining in the case.” A true and 
correct copy of the Bank’s counsel’s December 8 e-mail is attached hereto as 
Exhibit 22. 
35. 
After the parties further met and conferred, the Bank sent a “revised 
counterproposal for additional ESI collection” on December 15, 2023, this time 
proposing eight total additional custodians (including Rocco Blasi). A true and 
correct copy of the Bank’s counsel’s December 15 e-mail is attached hereto as 
Exhibit 23. 
36. 
On December 22, 2023, Plaintiffs’ counsel sent a counterproposal to 
the Bank’s revised counterproposal, agreeing to limit their request to only eight 
additional custodians and agreeing to four of the Bank’s offered custodians, while 
proposing to exchange the other four lower-level custodians (Anne Holt, Ruchira 
Ghosh, John Denning, and Scott Robbins) for four executive custodians (Brian 
Moynihan, Thomas Montag, Catherine Bessant, and Dean Athanasia). 
37. 
On December 29, 2023, the Bank rejected Plaintiffs’ December 22 
compromise proposal. The parties submitted informal letter briefs to Magistrate 
Judge Berg, who conducted an IDC on January 23, 2024 and tentatively ruled that 
the Bank should be ordered to add three executive custodians of the Plaintiffs’ 
choosing.   
38. 
The Bank reported over $94 billion in annual revenue and over $3 
trillion in consolidated assets in its Form 10-K for the fiscal year ended December 
31, 2022, pages 28 and 33, available at 
https://investor.bankofamerica.com/regulatory-and-other-filings/annual-
reports/content/0001140361-23-013653/0001140361-23-013653.pdf. 
39. 
The Bank reported that its CEO’s compensation was more than $30 
million in 2022, according to the Bank’s 2023 Proxy Statement, page 68, available 
at https://investor.bankofamerica.com/2023-proxy-statement.  
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8 
DECLARATION OF CONNIE K. CHAN IN SUPPORT OF MOTION TO 
COMPEL ADDITIONAL ESI CUSTODIANS 
Case No.: 3:21-md-02992-LAB-
MSB 
 
I declare under penalty of perjury that that the foregoing is true and correct.  
Executed this 23rd day of January, 2024 in Burlingame, California. 
 
 
 
 
 
/s/ Connie K. Chan 
 
 
 
 
 
 
 
Connie K. Chan 
Case 3:21-md-02992-GPC-MSB     Document 212-1     Filed 01/23/24     PageID.2181     Page
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