Plaintiffs' Memorandum in Support of Ex Parte Motion to Compel Compliance with Subpoena for the Production of Documents

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Plaintiffs' Memorandum of Points and Authorities in Support of Ex Parte Motion to Compel Compliance with Subpoena for the Production of Documents, filed 02/14/24 as Document 220-1 in In re Bank of America California Unemployment Benefits Litigation, Case No. 3:21-md-02992-LAB-MSB in the Southern District of California. Plaintiffs say Bank of America, N.A. contracted with TTEC Government Solutions, LLC to run the call centers handling EDD beneficiaries' customer service calls about its prepaid debit cards. A revised subpoena was served on TTEC through its counsel on November 9, 2023, calling for documents by December 8, 2023, but plaintiffs say no documents or objections have been provided and TTEC's attorneys stopped responding. They argue the MDL court has jurisdiction under 28 U.S.C. § 1407 to compel the out-of-district nonparty.

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Plaintiffs’ Memorandum in Support of Motion to Compel Compliance with  
Subpoena for the Production of Documents                                 Case No. 21MD2992 LAB (MSB)  
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BOTTINI & BOTTINI, INC. 
Francis A. Bottini, Jr. (SBN 175783) 
Albert Y. Chang (SBN 296065) 
Aaron P. Arnzen (SBN 218272) 
7817 Ivanhoe Avenue, Suite 102 
La Jolla, California 92037 
Telephone: 
(858) 914-2001 
Facsimile: 
(858) 914-2002 
E-mail: fbottini@bottinilaw.com 
achang@bottinilaw.com  
aarnzen@bottinilaw.com   
 
Counsel for Class Representative Plaintiff Lindsay 
McClure 
 
 
 
[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 
 
The Honorable Michael S. Berg 
 
Plaintiffs’ Memorandum of Points 
and Authorities in Support of Ex 
Parte Motion to Compel Compliance 
with Subpoena for the Production of 
Documents 
 
This Document Relates to All Actions 
 
 
 
 
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Plaintiffs’ Memorandum in Support of Motion to Compel Compliance with  
Subpoena for the Production of Documents                                 Case No. 21MD2992 LAB (MSB) 
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INTRODUCTION  
Plaintiffs’ counsel properly served third-party TTEC Government Solutions, 
LLC, (“TTEC”) with a valid subpoena for the production of documents in this multi-
district litigation (“MDL”).  TTEC, through counsel, initially met and conferred with 
Plaintiffs’ counsel about responding to the subpoena, but then TTEC became non-
responsive.  Having complied with the applicable Chambers Rules of the assigned 
Magistrate Judge, Plaintiffs now bring this motion to compel TTEC’s compliance with 
the subpoena.   
Because this is an MDL case, this Court has jurisdiction to hear and decide the 
motion to compel under 28 U.S.C. § 1407, despite the fact that TTEC appears to be 
headquartered in Colorado.  As the Sixth Circuit has noted, “[a] judge presiding over 
an MDL case … can compel production by an extra-district nonparty; enforce, modify, 
or quash a subpoena directed to an extra-district nonparty; and hold an extra-district 
nonparty deponent in contempt, notwithstanding the nonparty’s physical situs in a 
foreign district where discovery is being conducted.”  United States ex rel. Pogue v. Diabetes 
Treatment Centers of Am., Inc., 444 F.3d 462, 467-69 (6th Cir. 2006) (analyzing § 1407). 
Given the valid subpoena at issue here, this Court’s jurisdiction over this 
motion, and the discussion below, the Court should grant Plaintiffs’ motion to compel 
compliance with the subpoena served on TTEC. 
FACTUAL BACKGROUND 
This MDL concerns Bank of America, N.A.’s (“BANA”) administration of 
prepaid debit cards and related accounts through which California distributed 
unemployment and other public benefits on behalf of this state’s Economic 
Development Department (“EDD”).  BANA’s administrative efforts were rife with 
glaring problems that harmed the intended beneficiaries, including (among other 
things) beneficiaries being blocked from accessing their accounts and benefits, and the 
theft of their identities and other personally identifiable information.  See generally ECF 
No. 136 (First Amended Master Consolidated Complaint).  During the relevant period, 
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Plaintiffs’ Memorandum in Support of Motion to Compel Compliance with  
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BANA contracted with third party TTEC to run the call centers that handled customer 
service calls from EDD beneficiaries about BANA’s prepaid debit cards and accounts.   
A number of putative class action cases were filed in multiple districts 
surrounding BANA’s administration of EDD and related benefits.  ECF No. 1 
(Transfer Order).  For example, on May 17, 2021, the District Court for the Northern 
District of California entered an Order re: Preliminary Injunction.  Therein, the court 
found that “plaintiffs have demonstrated a strong likelihood of success on their claims 
that Bank of America (BofA) has violated, and continues to violate, the Electronic 
Fund Transfers Act by failing to conduct an adequate, good faith investigation when 
cardholders report unauthorized charges, and often simply freezing cardholder 
accounts based on a faulty screening process.”  See Declaration of Aaron P. Arnzen 
(“Arnzen Decl.”) (submitted herewith), Ex. 5 (PI Order, Yick v. Bank of America, N.A., 
Case No. 21CV00376-VC (N.D. Cal.), ECF No. 89).   
On June 4, 2021, the United States Judicial Panel on Multidistrict Litigation 
issued an order pursuant to § 1407 that these various cases be “transferred to the 
Southern District of California and, with the consent of that court, assigned to the 
Honorable Larry A. Burns for coordinated or consolidated pretrial proceedings.”  ECF 
No. 1, at 2. 
After discovery was underway, Class Representative Plaintiff Lindsay McClure 
issued a subpoena for the production of documents to TTEC Holdings, Inc. about the 
call centers that were ground zero for many of BANA’s EDD-related shortfalls.  Id.  
Ex. 1.  The subpoena was served on TTEC Holding’s registered agent for service of 
process on October 3, 2023.  Id.  The law firm of Perkins Coie, counsel for TTEC 
Holdings contacted Plaintiff’s counsel on November 3, 2023, stating that TTEC 
Holdings is a holding company with no employees, TTEC Holdings does not have 
documents responsive to the subpoena, and responsive documents are not in the 
possession, custody or control of TTEC Holdings.  Counsel for TTEC Holdings also 
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stated that the “correct entity on which to serve a revised subpoena was TTEC 
Government Solutions, LLC” (“TTEC”), and agreed to accept service of a revised 
subpoena issued to TTEC.  Arnzen Decl., Ex. 2.  Plaintiff’s counsel served a revised 
subpoena on TTEC by emailing the subpoena to counsel on November 9, 2023.  Id. 
Ex. 3.  The revised subpoena called for TTEC to produce responsive documents to 
Plaintiffs’ counsel Bottini & Bottini, Inc.’s office location in the Southern District of 
California by December 8, 2023.  Id.   
TTEC continued to engage the law firm of Perkins Coie in connection with the 
subpoena.  Plaintiffs’ counsel was initially able to meet and confer with TTEC’s 
attorneys.  However, despite multiple attempts to follow up since November 29, 2023, 
TTEC’s attorneys have been unresponsive.  Arnzen Decl., Ex. 4.  Although the 
subpoena instructed TTEC to produce documents by December 8, 2023, no 
documents have been produced and no objections or other explanations have been 
made.  Id.   
Pursuant to Civil Chambers Rule IV, Plaintiffs’ counsel contacted the chambers 
of the Honorable Magistrate Judge Michael S. Berg, which indicated that Plaintiffs were 
authorized to file a motion to compel.  The present motion follows. 
ARGUMENT 
I. 
The Subpoena Seeks Materials that are Relevant to Issues Central to 
this Litigation  
 This case concerns BANA’s egregious failures to meet its obligations under 
EDD’s benefits payment program.  ECF No. 136, at p. 1.  EDD provides 
unemployment insurance benefits to eligible Californians.  Id. ¶ 1.  The number of 
EDD beneficiaries increased dramatically during the COVID-19 pandemic.  Id. ¶ 74.  
EDD did not distribute benefits directly to beneficiaries; instead, it awarded BANA a 
contract to distribute benefits on behalf of EDD through bank-issued and bank-
administered prepaid debit cards that are linked to individual bank depository accounts.  
Id. ¶¶ 39, 45.  BANA’s striking failures in administering this program violated the law 
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and harmed plaintiffs here, who were EDD beneficiaries.  Id. ¶ 2.  Among other things, 
BANA failed to protect beneficiaries’ personally identifiable information (“PII”), failed 
to investigate fraud claims made by beneficiaries, and blocked beneficiaries’ access to 
funds in their accounts.  BANA’s failures weren’t limited to its internal processes, but 
instead extended to third-party customer service call centers.  Specifically, BANA 
contracted with third party companies, including TTEC, to staff and manage call 
centers to handle questions, inquiries, and fraud claims from EDD beneficiaries.   
The complaint alleges, among other things, that BANA:  
 Failed to ensure that EDD beneficiaries’ PII was appropriately handled and 
not, for example, misappropriated by bank subcontractors, including service 
representatives and other call center agents.  Id. ¶ 2. 
 Failed to implement adequate and reasonable protections to permit prompt 
submission of fraud claims.  Id. ¶ 3. 
 Failed to provide provisional access to benefits while BANA investigated 
fraud claims.  Id. 
 Failed to reimburse beneficiaries for funds stolen from their accounts (as 
BANA’s cardholder agreement required).  Id. ¶ 4. 
 Implemented customer service practices that frustrated and obstructed 
efforts to submit claims, denied fraud claims without investigation or 
explanation, and froze or blocked beneficiary access to accounts.  Id. 
 Implemented an automated and unreliable “claim fraud filter” to deny fraud 
claims and freeze accounts.  Id. ¶¶ 89-92. 
Indeed, BANA appears to have used the call centers to obstruct, rather than 
help, EDD beneficiaries.  From the First Amended Master Consolidated Complaint: 
Calling the Bank’s EDD Debit Card customer service phone lines, 
however, has often required Cardholders to endure hours-long wait times 
(with no option to receive a callback when a customer service agent 
becomes available), a variety of mishaps, and customer service agent 
incompetence.  Notwithstanding the foreseeable spike in calls that the 
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Bank knew or should have known would inevitably accompany the 
dramatic increase in unemployment benefits recipients during the 
pandemic, the Bank failed to appropriately staff its customer service call 
centers in a manner that would enable the Bank to honor its contractual 
commitments under the EDD–Bank Contract and to provide reasonable 
levels of assistance to the predictably large volume of EDD Debit 
Cardholders seeking assistance.  As a result, Plaintiffs and Class Members 
attempting to report fraud or to inquire about potential fraud have been 
kept on hold for hours, have been disconnected without warning, have 
waited long periods of time to speak with someone only to be told to call 
back later, have been transferred to various departments with no apparent 
end or sent to voicemail, have had to deal with unhelpful automated 
agents, and have unsuccessfully attempted to reach the Bank by email.  
ECF No. 136, ¶ 88. 
The documents that Plaintiffs seek through their subpoena to TTEC are directly 
related to the allegations in the operative complaint.  The subpoena includes 23 
requests, which seek documents evidencing such things as the relationship between 
BANA and TTEC, what sorts of customer contacts were handled by TTEC, the 
training TTEC customer service personnel received, and whether and how BANA 
instructed TTEC to deal with customers and the issues they presented.  Specific 
examples of subpoenaed documents include those concerning: 
 BANA’s contracts with TTEC.  Id., Ex. 3, Request No. 1.  
 Communications between BANA and TTEC regarding the May 17, 2021 
preliminary injunction.  Id., Request No. 2. 
 TTEC’s hiring, onboarding, training, and disciplining of its call center 
employees.  Id., Request No. 3. 
 The materials TTEC used to train its call center employees.  Id., Request No. 
5. 
 The call center’s communications with the present class representatives.  Id., 
Request No. 6. 
 Security measures used by TTEC to protect beneficiaries’ PII.  Id., Request 
No. 9. 
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 Any instances in which TTEC or its employees made any improper use of 
PII. Id., Request No. 10. 
 Wait times experienced by beneficiaries when contacting the TTEC call 
center(s).  Id., Request No. 12. 
 Unsuccessful efforts to reach a call center employee.  Id., Request No. 13. 
 How fraud claims were resolved.  Id., Request No. 14. 
 Identification of key actors at TTEC vis-a-vis BANA.  Id., Request No. 20. 
 The claims fraud filter.  Id., Request No. 22. 
II. 
FED. R. CIV. P. 45 Obligates TTEC to Respond to the Subpoena 
TTEC was obligated under FED. R. CIV. P. 45 to produce documents to 
Plaintiffs by December 8, 2023.  The subpoena met all relevant requirements found in 
Rule 45.  The subpoena was created by a party to this litigation, directed to a third party 
that likely has relevant and discoverable evidence about the subject matter of this case, 
commanded the production of documents to Plaintiffs’ attorney, was issued from the 
court where the action is pending, and was properly served by delivery to the 
subpoenaed party’s attorneys, who agreed to accept service of the subpoena on 
TTEC’s behalf.  Plaintiffs are unaware of any legal basis for TTEC to refrain from 
complying with the subpoena. 
III. 
This Court Has Jurisdiction to Consider and Decide this Motion 
This Court has jurisdiction to compel TTEC to comply with the subpoena under 
the Multidistrict Litigation statute.  As described above, this Court is assigned to 
oversee coordinated or consolidated pretrial proceedings under § 1407.  Section 
1407(b) provides that “[t]he judge or judges to whom such actions are assigned … may 
exercise the powers of a district judge in any district for the purpose of conducting 
pretrial depositions in such coordinated or consolidated pretrial proceedings.”  While 
the statute refers to “depositions,” courts have “wisely” interpreted the provision to 
cover document subpoenas, too.  “Though the statutory language refers to ‘pretrial 
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depositions,’ the statute wisely has been interpreted to embrace document production 
subpoenas as well.”  9 JAMES W. MOORE ET AL., MOORE’S FEDERAL 
PRACTICE § 45.50[4], at 45-75 through 45-77 (Matthew Bender 3d ed. 2006).    
  The Fifth Circuit squarely addressed this issue in In re Clients and Former Clients 
of Baron & Budd, P.C. and Occupational Med. Resources, Inc., 478 F.3d 670 (5th Cir. 2007).  
There, parties to an MDL case being overseen in the Eastern District of Pennsylvania 
issued a subpoena for the production of documents in the Southern District of Texas.  
Id. at 670-71.  The Southern District of Texas denied motions to quash and directed 
that “[a]ll future pleadings in this case be filed in MDL 875,” i.e., in the Eastern District 
of Pennsylvania.  Id. at 671. 
The subpoenaed parties appealed to the Fifth Circuit, which observed that the 
key underlying question that required analysis was “whether the authority conferred on 
the MDL court by § 1407(b) extends beyond depositions so as to embrace the instant 
subpoenas.”  Id.  The appellate court’s answer — that § 1407(b) does allow 
enforcement of subpoenas where the case is pending — was firm and unambiguous.  
“Based on the overwhelming weight of authority, we answer in the affirmative.”  Id. 
(citing MOORE’S FEDERAL PRACTICE) (emphasis added).  The Fifth Circuit also 
noted that its “conclusion is supported by the convincing analyses of myriad district 
courts.”  Id. at 672 (collecting cases from the Eastern District of Pennsylvania, District 
Court of the District of Columbia, Southern District of New York, and Central District 
of California).  Barron & Budd has since been cited with approval by additional district 
courts.  See, e.g., Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig., 2012 
U.S. Dist. LEXIS 205446, at *10 (E.D.N.Y. Aug. 17, 2012); In re Avandia Mktg., 2021 
Dist. LEXIS 172327, at **11-12 & n. 43 (E.D. Pa. Sept. 10, 2021)).   
The Sixth Circuit resorted to similar logic and case law to come to the same 
conclusion about § 1407.  
A judge presiding over an MDL case therefore can compel 
production by an extra-district nonparty; enforce, modify, or quash a 
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subpoena directed to an extra-district nonparty; and hold an extra-district 
nonparty deponent in contempt, notwithstanding the nonparty’s physical 
situs in a foreign district where discovery is being conducted.  
Pogue, 444 F.3d at 467-69.1  
The same analysis should lead to a similar result here.  Because the present MDL 
is overseen by the Southern District of California pursuant to § 1407, this Court has 
jurisdiction to hear and decide a motion to compel TTEC to produce documents in 
response to Plaintiffs’ subpoena.   
CONCLUSION 
For the reasons set forth above, the Court should grant Plaintiffs’ motion and 
enter the proposed order submitted by Plaintiffs. 
 
Dated: February 14, 2024 
Respectfully submitted, 
BOTTINI & BOTTINI, INC. 
s/ Aaron P. Arnzen 
Aaron P. Arnzen 
Francis A. Bottini, Jr. (SBN 175783) 
Albert Y. Chang (SBN 296065) 
Aaron P. Arnzen (SBN 218272) 
7817 Ivanhoe Avenue, Suite 102 
La Jolla, CA 92037 
Telephone:  858/914-2001 
Facsimile: 
858/914-2002  
Email:          fbottini@bottinilaw.com 
 
 
aarnzen@bottinilaw.com   
 
 
achang@bottinilaw.com  
Counsel for Class Representative Plaintiff Lindsay 
McClure 
 
 
 COTCHETT, PITRE & MCCARTHY, LLP
Joseph W. Cotchett (SBN 36324) 
Brian Danitz (SBN 247403) 
Karin B. Swope (Pro Hac Vice) 
Andrew F. Kirtley (SBN 328023) 
840 Malcolm Road, Suite 200 
Burlingame, CA 94010 
 
1 But see In re Packaged Seafood Prods. Antitrust Litig., 2018 U.S. Dist. LEXIS 7669, 
at **45-46 (S.D. Cal. Jan. 17, 2018) (Dembin, M.J.) (denying motion to compel out-of-
district third-party compliance because “deposition,” as used in § 1407, is narrower 
than other courts have interpreted the term). 
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Telephone:  (650) 697-6000 
Email:           jcotchett@cpmlegal.com 
bdanitz@cpmlegal.com 
kswope@cpmlegal.com 
akirtley@cpmlegal.com 
 
ALTSHULER BERZON LLP 
Michael Rubin (SBN 80618) 
Stacey M. Leyton (SBN 203827) 
Matthew Murray (SBN 271461) 
Connie K. Chan (SBN 284230) 
177 Post Street, Suite 300 
San Francisco, CA 94108 
Telephone: (415) 421-7151 
Email:         mrubin@altber.com 
                   sleyton@altber.com 
                   mmurray@altber.com 
                   cchan@altber.com 
 
Interim Co-Lead Counsel for Plaintiffs and the 
Proposed Class
 
 
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