Response in Opposition re 212 Motion to Compel Additional ESI — In re BofA Unemployment Litigation (Dkt. 214)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 214 · 2024-01-30 · Docket on CourtListener

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OPP. TO PLS. MOT. TO COMPEL ADD’L ESI 
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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 
OPPOSITION TO PLAINTIFFS’ 
MOTION TO COMPEL 
ADDITIONAL ESI CUSTODIANS 
 
Date:  N/A, per Dkt. 205      
Time: N/A, per Dkt. 205       
Ctrm:  2C      
Judge: Hon. Michael S. Berg      
 
 
Case 3:21-md-02992-GPC-MSB     Document 214     Filed 01/30/24     PageID.2242     Page 1
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OPP. TO PLS. MOT. TO COMPEL ADD’L ESI 
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CASE NO. 21-MD-02992-LAB-MSB 
 
 
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Plaintiffs’ opening brief (Dkt. 212, “Pls. Br.”) fails to show that additional ESI 
discovery is necessary or proportionate to the needs of this case.  Their effort to 
compel ESI discovery from BANA’s top executives is pure harassment, and they do 
not even try to argue that the non-executive custodians have unique documents 
compared to what they already have.  Plaintiffs’ motion should be denied. 
Plaintiffs fail to show that the top executives were decision-makers on key 
issues.  Plaintiffs concede that in order to justify collection of executive emails, they 
must show that the executives were “key decision-makers” regarding issues “at the 
core of Plaintiffs’ claims.”  Pls. Br. 3-4.  But despite Plaintiffs’ bald assertion that 
“senior leaders were necessarily involved in directing this work,” none of the 
documents they attach actually “confirm” this conclusion.  Id. at 3.  Instead, the 
documents unsurprisingly show that BANA’s top executives received updates and 
briefings on the EDD program and the unprecedented fraud it was generating.  It is 
hardly surprising that top executives were informed of unexpected and dramatic 
challenges facing the program.  But receiving information about emerging challenges 
and the strategies being implemented to address them is not the same as being a “key” 
decision-maker on the details at the core of Plaintiffs’ claims:  when and how to rely 
on indicia of fraud in decisioning claims, implementation of EMV chip options, and 
demand-driven customer service issues.  Executives are not decision-makers simply 
because they were made aware of others’ decisions, and Plaintiffs’ contention to the 
contrary is neither supported by any case law, nor how businesses work.1 
The first 13 exhibits attached to Plaintiffs’ brief are the same 13 documents 
attached to their IDC Letter, for which Plaintiffs make the same arguments that they 
 
1 The top executives are not “responsible for” relevant groups.  Contra Pls. Br. 3, n.2.  
Plaintiffs’ only support for this statement is the organizational charts (Ex. 20) that 
were created for this case and—at Plaintiffs’ request—included reporting lines for 
the head of each group to the top executives.  The organizational charts further show 
that Plaintiffs already have ESI from several executives who were responsible (not 
just “mid-level managers,” contra id. 7).  Existing custodians O’Neill, Ahmad, 
Lawlor, Daniels, Ehresman, Fox, Gargagliano and Golden were responsible for their 
respective groups, and each have the term “Head” or “Executive” in their titles. 
Case 3:21-md-02992-GPC-MSB     Document 214     Filed 01/30/24     PageID.2243     Page 2
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OPP. TO PLS. MOT. TO COMPEL ADD’L ESI 
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CASE NO. 21-MD-02992-LAB-MSB 
 
 
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made in connection with the IDC, and which were addressed in BANA’s opening 
brief (Dkt. 209, “Def. Br.”).  As BANA explained, Plaintiffs only suggest that 3 of 
the 13 IDC documents are even relevant to decision-making, and those suggestions 
do not survive the first confrontation with the actual documents.  Def. Br. 5.  And 
Plaintiffs’ remaining IDC documents show only executive awareness, which is not 
the standard Plaintiffs must meet.  Id. at 5-6.  The new documents do not help.  
Plaintiffs cite Ex. 14 to “show[] Montag sought analyses on prepaid fraud losses,” 
and Ex. 15 to show Moynihan “received numerous emails from impacted EDD 
cardholders.” Pls. Br. 4.  But they make no argument for how these documents show 
anything more than awareness, which they concede is not enough.   
Plaintiffs say that “Courts routinely grant requests” for executive documents.  
Pls. Br. 5, and n.3.  But the cases Plaintiffs cite apply the decision-maker on key 
issues standard that Plaintiffs cannot satisfy here.2   
Plaintiffs make no attempt to show that the non-executives possess unique 
documents.  Plaintiffs’ only argument for non-executives Boussuge, Johnson, and 
Blasi3 is that BANA “previously conceded” they are “most likely to possess non-
duplicative, relevant ESI.”  Pls. Br. 6.  Plaintiffs mislead:  BANA never “conceded” 
that these custodians possess unique, relevant documents but rather offered them as 
a compromise because they were among the “most likely” of the additional 
 
2 See, e.g., In re Envision Healthcare Corp., 2020 WL 6750397, at *3-4 (M.D. Tenn. 
Nov. 16, 2020) (executives were decision-makers, played active roles in allegations, 
or made public statements regarding same); In re EpiPen, 2018 WL 1440923, at *3-
4 (D. Kan. Mar. 15, 2018) (executives were “involved in discussions and decisions 
regarding [relevant] price increases” and “part of a small team making decisions 
about [relevant] product launch”); MariCal, Inc. v. Cooke Aquaculture, Inc., 2016 
WL 9459260, at *2 (D. Me. Aug. 9, 2016) (CEO made decisions to license patents 
at issue and made public statements regarding same); Dyson, Inc. v. Skarkninja Opg 
LLC, 2016 WL 1613489, at *2 (N.D. Ill. Apr. 22, 2016) (executive was “the named 
inventor on the patents in this case”).  Plaintiffs’ remaining cases are inapposite.  
Shenwick v. Twitter, Inc. is a securities class action in which the executive personally 
made the corrective public disclosures.  2018 WL 833085, at *1 (N.D. Cal. Feb. 7, 
2018).  And in Blankenship v. Fox News Network, LLC, the “intertwining relationship 
between” the executives and “high-ranking Republican officials” was itself key to 
the allegations in the case.  2021 WL 2345972, at *2-5 (S.D. W.Va. June 8, 2021). 
3 BANA does not object to adding Channels as an ESI custodian.  See Def. Br. 3, n.2.  
Case 3:21-md-02992-GPC-MSB     Document 214     Filed 01/30/24     PageID.2244     Page 3
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OPP. TO PLS. MOT. TO COMPEL ADD’L ESI 
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CASE NO. 21-MD-02992-LAB-MSB 
 
 
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custodians being demanded (i.e., more likely than the top executives Plaintiffs still 
demand) to have such materials.  BANA made this compromise offer to avoid 
burdening the Court, to curtail Plaintiffs’ effort to harass BANA’s top executives, 
and before BANA understood that ESI costs already exceed $4.5 million.  See 
McGarry Decl., Dkt. 209-1, ¶ 9; Anderson Decl., Dkt. 209-2, ¶ 6.  Now, none of the 
benefits BANA hoped to gain with its compromise remain viable, so BANA 
maintains its original position that Plaintiffs have all the ESI they are entitled to. 
Plaintiffs’ documents underscore that ESI from Boussuge, Johnson, and Blasi 
is highly likely to be duplicative.  The organizational charts (Ex. 20) show that 
Plaintiffs already have ESI from Boussuge’s direct supervisor (Simpson) and two 
other “leaders” from her department (Gargagliano, Martin), from Johnson’s direct 
supervisor (Ehresman) and two others from her departments (Daniels, Nail), and 
from Blasi’s supervisors (Garfield and Smith).  Indeed, Plaintiffs’ say they need these 
documents for issues that are already covered by at least 9 custodians on the fraud 
filter (Boussuge) and at least 4 custodians on claims processing (Johnson) and 
customer service (Blasi).  Plaintiffs make no argument that the ESI from these three 
is likely to be different. 
Plaintiffs’ assessment of the Rule 26(b)(1) factors is wrong.  Plaintiffs say 
each of the Rule 26(b)(1) proportionality factors “weighs in Plaintiffs favor.”  Pls. 
Br. 6.  Not so.  Plaintiffs cite nothing to support their claim that the ESI they seek is 
“critical” to key issues such as “the Bank’s reasons for implementing [the fraud filter] 
and its knowledge of [its] impact . . . on innocent cardholders” (id. at 7), because it 
is not.  Plaintiffs cite no document showing that the requested custodians (executive 
or not) have information that would bear on the “reasons” for the fraud filter or 
“knowledge of [its] impact,” and none of the documents contains more than a passing 
reference to the fraud filter.  Plaintiffs downplay the millions BANA has spent on 
ESI already, but they have not shown why they need more.     
Case 3:21-md-02992-GPC-MSB     Document 214     Filed 01/30/24     PageID.2245     Page 4
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OPP. TO PLS. MOT. TO COMPEL ADD’L ESI 
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CASE NO. 21-MD-02992-LAB-MSB 
 
 
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CONCLUSION 
For the foregoing reasons, BANA respectfully requests that the Court deny 
Plaintiffs’ motion to compel additional ESI custodians. 
 
Dated:   January 30, 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 214     Filed 01/30/24     PageID.2246     Page 5
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OPP. TO PLS. MOT. TO COMPEL ADD’L ESI 
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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 30, 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 30, 2024 
 
s/ James W. McGarry 
 
 
 
 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 214     Filed 01/30/24     PageID.2247     Page 6
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