Declaration of Jaclyn L. Schoen — In re Bank of America California Unemployment Benefits Litigation (Dkt. 215-1, 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. 215-1 · 2024-01-30 · Docket on CourtListener

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Decl. of Jaclyn L. Schoen in Opposition to Defendant’s Motion to Preclude 
Additional ESI Discovery; Case No. 3:21-md-02992-LAB-MSB 
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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 
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 
 
Co-Lead Counsel for Plaintiffs and the Proposed Class  
(Additional Counsel Listed Below) 
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 JACLYN L. 
SCHOEN IN OPPOSITION TO 
DEFENDANT’S MOTION TO 
PRECLUDE ADDITIONAL ESI 
DISCOVERY 
 
This Document Relates to All Actions 
 
Judge: 
Hon. Larry Alan Burns 
 
Case 3:21-md-02992-GPC-MSB     Document 215-1     Filed 01/30/24     PageID.2257     Page
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Decl. of Jaclyn L. Schoen in Opposition to Defendant’s Motion to Preclude  
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Additional ESI Discovery; Case No. 3:21-md-02992-LAB-MSB 
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I, Jaclyn L. Schoen, declare as follows: 
1. 
I am the Vice President of Strategy and Augmented Intelligence at 
Trustpoint. I make this declaration of my own personal knowledge and, if called to 
testify as a witness, could and would testify competently to the matters stated herein. 
2. 
I have seventeen years of experience consulting in all aspects of 
electronic discovery including the use of multiple technologies in the areas of 
electronic discovery processing, multi-modal searching, review, and production. Over 
the last ten years I have focused on defensible use of augmented intelligence tools 
with both technology assisted review (TAR) as well as multi-modal search and 
identification of documents for defensible data reduction and document production. I 
have consulted on hundreds of matters. I also regularly provide consulting services in 
the creation and negotiation of ESI processes including working with clients and 
discussing any questions or points of interest with the opposing parties and their 
eDiscovery experts. 
3. 
In multi-district litigation complex civil litigation cases, it is quite 
typical for most projects, after applying search terms, for a producing party to end up 
producing 25%, or less, of the total document review population (i.e. the number of 
documents the search terms hit upon) after doing a relevance and responsive review. 
4. 
Moreover, the Bank used Brainspace and the process that Brainspace 
refers to as CMML (Continuous Multi-Modal Learning).  The Bank disclosed to 
Plaintiffs that they did a random prevalence test (a random sample designed to 
predict the richness) at the beginning of their review that predicted responsiveness 
prior to a full review.  The Bank should have known that the responsiveness rate 
would be close to 25% at the time, and did not raise it as an issue to the Court or to 
Plaintiffs. 
5. 
In using TAR, the trained TAR system identified 765,000 likely relevant 
documents.  If that entire set fell within the TAR project, then either the Bank was 
inefficient in how they reviewed the documents, or the documents themselves were 
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Decl. of Jaclyn L. Schoen in Opposition to Defendant’s Motion to Preclude  
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Additional ESI Discovery; Case No. 3:21-md-02992-LAB-MSB 
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close and complex determinations such that the system required all that additional 
review for training.  Either way, the Bank's TAR review was not the result of 
Plaintiffs' search terms, which as discussed above, were not overbroad by industry 
standards.  
6. 
Moreover, in many class actions of this size, a party reviews 765,000 or 
more documents. Indeed, in many class actions of comparable size and complexity to 
this case that I or my colleagues have worked on, millions of documents have been 
reviewed and/or produced by a responding party. 
7. 
While BANA claims that it spent $4.5 million dollars for 400 contract 
attorneys to review documents in addition to the hosting and management of the 
platform, Anderson Decl. ¶6, BANA could have run the review in a more efficient 
manner. Moreover, BANA could have avoided the costly second-level review 
altogether and produced the documents directly after running a privilege log filter and 
implementing a claw back provision immediately after search terms had been 
finalized and run across the dataset. 
8. 
If BANA collects documents from additional custodians, BANA’s ESI 
discovery vendor can isolate any documents that have already been reviewed or 
produced by other custodians, and those documents need not be reviewed again. 
Moreover, BANA’s TAR system has already been trained. Accordingly, the cost of 
reviewing the documents of additional custodians at this stage is likely to be 
substantially less than the cost of reviewing the documents of the original 20 
custodians.  
I declare, under penalty of perjury, that the foregoing is true and correct. 
Executed this 30th day of January 2024 in Chicago, Illinois. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
JACLYN L. SCHOEN 
 
 
 Jaclyn L. Schoen
Case 3:21-md-02992-GPC-MSB     Document 215-1     Filed 01/30/24     PageID.2259     Page
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