Court filing
Memo of Points and Authorities in Support of Plaintiffs' Objections — In re BofA Unemployment Litigation (Dkt. 278-1)
Filed July 19, 2024 in In re Bank of America California Unemployment Benefits Litigation; one of 1415 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of California |
|---|---|
| Filed | 2024-07-19 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 278-1 · 2024-07-19 · Docket on CourtListener
Full text
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-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
CONNIE K. CHAN (SBN 284230)
cchan@altber.com
COLIN C. JONES (SBN 354301)
cjones@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
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IN RE BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 3:21-md-02992-GPC-MSB
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFFS’ OBJECTIONS TO
AND MOTION TO REVERSE IN
PART MAGISTRATE JUDGE’S
APRIL 24, 2024 DISCOVERY ORDER
[ECF 268]
This Document Relates to All Actions
Judge:
Hon. Gonzalo P. Curiel
Date:
July 19, 2024
Time:
1:30 PM
Ctrm: 2D (floor)
REDACTED VERSION FOR
PUBLIC FILING
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2839 Page
1 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No.: 3:21-md-02992-GPC-MSB
TABLE OF CONTENTS
I.
INTRODUCTION ........................................................................................... 1
II.
BACKGROUND ............................................................................................. 3
A.
Federal Preliminary Injunction. ............................................................ 5
B.
CFPB and OCC Consent Orders. .......................................................... 6
C.
Plaintiffs’ Remaining Claims for Damages,
Including Treble and Punitive Damages. .............................................. 7
III.
HISTORY OF DISCOVERY DISPUTE ........................................................ 9
IV.
LEGAL STANDARD ................................................................................... 13
V.
ARGUMENT ................................................................................................ 13
A.
The Discovery Order Is Contrary to Law Because it
Applies the Wrong Legal Standard for Compelling
Production of Documents. .................................................................. 13
B.
Under Any Potentially Applicable Legal Standard,
Plaintiffs Have Shown Entitlement to ESI from
Moynihan and Montag. ....................................................................... 17
1.
Moynihan not only has relevant information, he was
a key decision-maker with unique information
not available from other sources. .............................................. 18
2.
Montag not only has relevant information, he was
a key decision-maker with unique information
not available from other sources. ................................................ 22
3.
The Bank did not and cannot show that
producing Moynihan and Montag’s
documents is unduly burdensome or
disproportionate to the needs of the case. ................................. 23
VI.
CONCLUSION ............................................................................................. 25
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2840 Page
2 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
TABLE OF AUTHORITIES
Page(s)
Cases
Apple Inc. v. Samsung Elecs. Co.,
282 F.R.D. 259 (N.D. Cal. 2012) ....................................................................... 15
B&G Foods N. Am., Inc. v. Embry,
No. 20-cv-0526-KJM-DB, 2024 WL 626962 (E.D. Cal. Feb. 14,
2024) ................................................................................................................... 15
Blankenship v. Fox News Network, LLC,
No. 2:19-cv-00236, 2021 WL 2345972 (S.D. W. Va. June 8, 2021) ..... 16, 21, 24
Blankenship v. Hearst Corp.,
519 F.2d 418 (9th Cir. 1975) ........................................................................ 14, 17
In re BofI Holding, Inc. Sec. Litig.,
318 F.R.D. 129 (S.D. Cal. 2016) ........................................................................ 13
Celerity, Inc. v. Ultra Clean Holding, Inc.,
No. C 05-4374-MMC(JL), 2007 WL 205067 (N.D. Cal. Jan. 25,
2007) ................................................................................................................... 16
Cohen v. Trump,
Nos. 13-cv-2519-GPC-WVG, 10-cv-0940-GPC-WVG, 2015 WL
3966140 (S.D. Cal. June 30, 2015) .................................................................... 17
Dang v. Cross,
422 F.3d 800 (9th Cir. 2005) ................................................................................ 8
Dyson, Inc. v. Sharkninja Operating LLC,
No. 14-cv-0779, 2016 WL 1613489 (N.D. Ill. Apr. 22, 2016) .............. 16, 22, 24
In re Envision Healthcare Corp. Sec. Litig.,
No. 17-cv-1112, 2020 WL 6750397 (M.D. Tenn. Nov. 16, 2020) .............. 14, 22
In re EpiPen Mktg. Sales Pracs. & Antitrust Litig.,
No. 17-md-2785-DDC-TJJ, 2018 WL 1440923 (D. Kan. Mar. 15,
2018) ................................................................................................................... 22
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2841 Page
3 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iii
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
In re Facebook, Inc. Consumer Priv. User Profile Litig.,
No. 18-md-02843-VC-JSC, 2021 WL 10282213 (N.D. Cal. Nov. 14,
2021) ....................................................................................................... 15, 19, 24
In re Google Litig.,
No. C 08-03172 RMW (PSG), 2011 WL 4985279 (N.D. Cal. Oct.
19, 2011) ............................................................................................................. 15
Henriquez v. Cemex, Inc.,
No. 22-cv-1645-JGB-SP, 2024 WL 1600663 (C.D. Cal. Jan. 18,
2024) ............................................................................................................. 14, 20
Hunt v. Continental Cas. Co.,
No. 13-5966, 2015 WL 1518067 (N.D. Cal. Apr. 3, 2015) ............................... 20
L.A. Alliance v. Los Angeles,
No. 20-CV-2291-DOC, 2023 WL 5505037 (C.D. Cal. Aug. 2, 2023) .............. 16
MariCal, Inc. v. Cooke Aquaculture, Inc.,
No. 14-cv-0366-JDL, 2016 WL 9459260 (D. Me. Aug. 9, 2016) ............... 14, 22
Moyle v. Liberty Mut. Retirement Bene. Plan,
No. 10-cv-2179-DMS (MDD), 2012 WL 5373421 (S.D. Cal. Oct. 30,
2012) ................................................................................................................... 21
Mt. Hawley Ins. Co. v. Felman Prod., Inc.,
269 F.R.D. 609 (S.D. W. Va. 2010) ............................................................. 15, 18
In re Nat'l W. Life Ins. Deferred Annuities Litig.,
No. 05-CV-1018-AJB (WVG), 2011 WL 1304587 (S.D. Cal. Apr. 6,
2011) ................................................................................................................... 21
Neal v. Farmers Ins. Exch.,
21 Cal.3d 910 (1978) ............................................................................................ 8
Perez v. Genoptix, Inc.,
No. 18-cv-2545-LAB-MDD, 2019 WL 12517081 (S.D. Cal. Jan. 11,
2019) ................................................................................................................... 21
Perkins v. Suzuki Motor Corp.,
No. 1:18-cv-00893-DDD-GPG, 2021 WL 5629067 (D. Colo. Feb.
19, 2021) ............................................................................................................... 2
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2842 Page
4 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iv
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
Powertech Tech., Inc. v. Tessera, Inc.,
No. C 11-6121 CW, 2013 WL 3884254 (N.D. Cal. July 26, 2013) ................... 21
In re Qualcomm Litig.,
No. 17-cv-00108-GPC-MDD, 2018 WL 6617294 (S.D. Cal. Dec. 18,
2018) ................................................................................................................... 13
Rockwell Int’l, Inc. v. Pos-A-Traction Indus., Inc.,
712 F.2d 1324 (9th Cir. 1983) (per curiam) ....................................................... 13
Rosales v. FitFlop USA,
No. 11-cv-0973-W(KSC), 2012 WL 13176110 (S.D. Cal. Dec. 10,
2012) ................................................................................................................... 14
Rosinbaum v. Flower Foods, Inc.,
238 F.Supp.3d 738 (E.D.N.C. 2017) .................................................................. 16
Shenwick v. Twitter, Inc.,
No. 16-cv-05314-JST-SK, 2018 WL 833085 (N.D. Cal. Feb. 7,
2018) ................................................................................................. 16, 18, 20, 22
Smith v. Wade,
461 U.S. 30 (1983) .............................................................................................. 8
SPS Techs., LLC v. Briles Aerospace, Inc.,
No. 18-cv-9536-MWF, 2019 WL 13108021 (C.D. Cal. June 25,
2019) ............................................................................................................. 14, 25
Sundby v. Marquee Funding Grp., Inc.,
No. 19-cv-00390-GPC-AHG, 2020 WL 1674417 (S.D. Cal. Apr. 6,
2020) ..................................................................................................................... 2
In re Transpacific Passenger Air Transp. Antitrust Litig.,
No. C-07-5634 CRB (DMR), 2014 WL 939287 (N.D. Cal. Mar. 6,
2014) ................................................................................................................... 21
United States v. Caro,
461 F.Supp.2d 478 (W.D. Va. 2006), aff’d, 597 F.3d 608 (4th Cir.
2010) ..................................................................................................................... 2
WebSideStory, Inc. v. NetRatings, Inc.,
No. 06-cv-408, 2007 WL 1120567 (S.D. Cal. Apr. 6, 2007) ............................. 15
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2843 Page
5 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
White v. Ultramar, Inc.,
21 Cal.4th 563 (1999) ........................................................................................... 8
Williams & Cochrane, LLP v. Quechan Tribe of the Fort Yuma Indian
Reservation,
No. 17-cv-1436-GPC-MSB, 2020 WL 2745246 (S.D. Cal. May 27,
2020) ............................................................................................................. 14, 17
Williams v. Apple, Inc.,
No. 19-cv-04700-LHK, 2020 WL 5107639 (N.D. Cal. Aug. 31,
2020) ................................................................................................................... 25
Federal Statutes
Electronic Fund Transfers Act, 15 U.S.C. §1693 et seq. ........................................... 1
15 U.S.C. §1693f .................................................................................................... 4
15 U.S.C. §1693f(e)(1)-(2) ..................................................................................... 8
15 U.S.C. §1693g ................................................................................................... 4
15 U.S.C. §1693o(a)(5) .......................................................................................... 7
12 U.S.C. §5565(a)(3) ............................................................................................... 7
State Statutes
Cal. Civ. Code §3294(a) ............................................................................................ 8
Cal. Civ. Code §3294(b) ............................................................................................ 8
Other Authorities
Regulation E
12 C.F.R. §1005.11 ................................................................................................. 4
12 C.F.R. §1005.11(c)(4) ....................................................................................... 4
Fed. R. Civ. P.
Rule 23(b)(2) .......................................................................................................... 5
Rule 26 .......................................................................................................... passim
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2844 Page
6 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
vi
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
Rule 26(a) ............................................................................................................. 10
Rule 26(b)(1) ................................................................................................ passim
Rule 26(b)(2) ........................................................................................................ 14
Rule 26(c)(1) ........................................................................................................ 15
Consent Order, In the Matter of Bank of Am., N.A.
Consumer Financial Protection Bureau, No. 2022-CFPB-0004 (July
14, 2022) ........................................................................................................... 6, 7
Consent Order, In the Matter of Bank of Am., N.A.,
Office of Comptroller of Currency, No. AA-ENF-2022-21 (July 14,
2022) ................................................................................................................. 6, 7
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2845 Page
7 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No.: 3:21-md-02992-GPC-MSB
I.
INTRODUCTION
These coordinated MDL proceedings challenge unlawful policies and practices
that Defendant Bank of America, N.A. (“BANA” or the “Bank”) implemented at the
height of the Covid pandemic in 2020-2021 to protect itself from financial losses at the
expense of some of its most vulnerable customers—Californians who received
unemployment and other public benefits from California’s Employment Development
Department (“EDD”) through Bank-issued “EDD debit cards.” The proposed class
consists of more than 100,000 of these public benefits recipients whom the Bank
deprived of their benefits, often for months on end, in violation of their constitutional,
statutory, and common law rights. Because Plaintiffs seek inter alia punitive damages
and treble damages under the Electronic Fund Transfers Act, 15 U.S.C. §1693 et
seq.(“EFTA”), issues about the Bank’s knowledge, motive, and intent in adopting its
challenged policies are central to the case. Documents showing what the Bank’s senior
executives knew, when they knew it, and what policies they personally directed or
authorized are critical for proving those claims.
Despite the breadth and complexity of this case and the importance of the issues,
the Bank originally proposed only five ESI custodians. The Bank eventually agreed to
an initial set of 24 ESI custodians (which the parties later reduced to 20 to expedite
review and production) and to negotiate additional custodians after the initial
production. But after that initial production (half of which did not occur until early
December 2023), the Bank refused to add any more ESI custodians unless Plaintiffs
would agree to forego seeking documents from any of its senior executives, in which
case the Bank would agree to add eight more custodians.
Plaintiffs agreed to a limit of eight more ESI custodians (thus eliminating the
Bank’s purported burden concerns). But because the Bank refused to search ESI of
any senior executive, Plaintiffs moved Judge Berg to compel the Bank to produce ESI
from eight designated custodians, including four senior executives Plaintiffs had
reason to believe were directly involved in directing development of and authorizing
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2846 Page
8 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
the policies and practices at issue: Brian Moynihan (CEO), Thomas Montag (until
December 2021, COO and President of Global Banking and Markets (“GBAM”), the
division responsible for the EDD debit card program and for creating the Claim Fraud
Filter (“CFF”) policy that Plaintiffs challenge), Catherine Bessant (Chief Operations
and Technology Officer until 2021), and Dean Athanasia (President of Regional
Banking). Plaintiffs supported their motion with documents showing that these
executives were key decision-makers who determined priorities, gave directives,
approved major decisions about the Bank’s management of its EDD debit card
program, and often communicated only among themselves. Because Plaintiffs filed
their motion to compel before they could review all 194,000 documents the Bank
produced from late October to early December 2023, Plaintiffs have since uncovered
additional documents and testimony making even clearer that Moynihan and Montag
in particular were driving forces behind the development and approval of the CFF
policies at the core of Plaintiffs’ claims, including those for treble and punitive
damages. See Supp. Decl. of Connie K. Chan (“Supp. Decl.”) ¶24 & Exs. 24-35.1
Despite Plaintiffs’ strong showing that Moynihan and Montag were key
decision-makers likely to have highly relevant, non-duplicative documents and that
including them among the eight additional custodians was proportional to the needs of
the case, Judge Berg denied Plaintiffs’ request to include them, applying the equivalent
1 On February 20, 2024, Plaintiffs sought leave from Judge Berg to submit some of
that newly identified evidence to supplement their motion, which he denied on the
ground that briefing had closed. Supp. Decl. of Connie K. (“Supp. Decl.”) ¶15, Ex. 37.
However, “[a] ‘district court has discretion … to consider evidence presented for the
first time in a party’s objection to a magistrate judge’s recommendation.’” Sundby v.
Marquee Funding Grp., Inc., No. 19-cv-00390-GPC-AHG, 2020 WL 1674417, at *2
(S.D. Cal. Apr. 6, 2020) (quoting United States v. Howell, 231 F.3d 615, 621 (9th Cir.
2000)); see, e.g., United States v. Caro, 461 F.Supp.2d 478, 480-81 (W.D. Va. 2006)
(considering supplemental declarations and sustaining objections to a magistrate judge
discovery order), aff’d, 597 F.3d 608 (4th Cir. 2010); Perkins v. Suzuki Motor Corp.,
No. 1:18-cv-00893-DDD-GPG, 2021 WL 5629067, at *8 (D. Colo. Feb. 19, 2021)
(electing “to exercise its discretion to consider new evidence” rather than remanding
to the magistrate judge to consider, “in the interests of justice and efficiency”).
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2847 Page
9 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
of the “apex doctrine” standard that governs the deposition of high-level executives.
See ECF 268 (“Discovery Order”) at 7-9. But the apex doctrine does not apply to
requests for electronic document collection, a far-less burdensome process. Even if the
apex doctrine did apply, Plaintiffs easily satisfy that standard, as the record shows that
Moynihan and Montag were key decision-makers with direct and contemporaneous
knowledge of the Bank’s CFF policy, and who are highly likely to have unique
documents not in the possession of any existing custodians.
Because the Discovery Order applied the wrong legal standard and failed to
consider proportionality under Rule 26(b)(1), it is contrary to law and must be reversed
in relevant part. For the reasons stated below, the Court should modify the Discovery
Order to compel the Bank to produce Moynihan and Montag’s ESI responsive to RFPs
76-79, or alternatively, remand this matter to Judge Berg for reconsideration under the
correct legal standard and in light of Plaintiffs’ subsequently identified evidence.
II.
BACKGROUND2
From 2011 until this year, Bank of America had an exclusive contract with EDD
to distribute unemployment insurance (“UI”), disability insurance, and paid family
leave benefits to millions of Californians through Bank-issued prepaid debit cards
(“EDD debit cards”) linked to an individual Bank account (“EDD debit card account”).
Although the Bank has for years issued its commercial customers debit cards with an
industry-standard “EMV chip,” which encrypts card data and prevents cards from
being easily counterfeited, BANA chose not to include EMV chips in EDD debit cards,
instead issuing EDD cardholders outdated and unencrypted “magnetic stripe”-only
cards, which are notoriously easy to “skim” and clone and thus highly susceptible to
unauthorized transactions.3
2 Because this is the first substantive motion filed since these MDL proceedings were
reassigned, Plaintiffs include some case background and procedural history to place
the current discovery dispute in context.
3 Criminals insert “skimming” devices into payment terminals and ATMs to capture
the unencrypted card information stored on the magnetic stripe that is transmitted to
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2848 Page
10 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
In mid-2020, amid the surge in the number of UI recipients, a wave of
transaction fraud not surprisingly hit these vulnerable EDD debit cards and accounts.
Thousands of EDD debit cardholders discovered—often when trying to use their card
to buy groceries or other basic necessities—that their UI funds had been drained from
their accounts, often through unauthorized ATM withdrawals. Thousands of EDD
cardholders began reporting these unauthorized transactions to the Bank, triggering
the Bank’s obligations under EFTA and its implementing regulation, Regulation E, to:
(1) investigate the disputed transactions by reviewing available evidence in its records,
such as ATM footage and the cardholders’ transaction history, (2) complete its
investigation or issue provisional credit to the affected account within 10 business
days, and (3) issue permanent credit to the account within 45 days unless the Bank’s
evidence showed that the cardholder had actually authorized or benefitted from the
transaction. See 15 U.S.C. §§1693f, 1693g (burden of proof on bank to show
transaction was authorized); 12 C.F.R. §1005.11 (Regulation E error resolution
procedures); CFPB Official Interpretation of 12 C.F.R. §1005.11(c)(4) (bank “must
review any relevant information within the institution's own records” and “within the
control of the institution’s third-party service providers”).
Instead of complying with its legal obligations, the Bank implemented a policy
that resulted in the systemic denial without investigation of the claims of more than
100,000 unemployed Californians, depriving them of more than $200 million in UI
and other public benefits to which they were entitled, and upon which many of them
depended for food, medicine, and other basic life necessities. Beginning September
28, 2020, the Bank abandoned its longstanding prior policies and procedures for
conducting EFTA-compliant claims investigations and adopted a new policy of first
the terminal when the card is swiped, which can then be used to make a counterfeit
copy of the card with relative ease. Criminals use skimming devices in conjunction
with virtually undetectable PIN hole cameras or PIN pad overlays to capture the
cardholder’s entry of their PIN number into the terminal when the card is used.
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2849 Page
11 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
running every EDD cardholder’s claim through a newly created tool, the “Claim Fraud
Filter.” For every claim that met one of the CFF’s three “indicators”—which included
every claim of an unauthorized
—the Bank automatically denied the
claim without any human review or investigation (referred to internally as a
“
” Supp. Decl. Ex. 36).
The Bank used the CFF not only to automatically deny all EDD debit
cardholders’ new unauthorized-transaction claims stemming from
, but also to rescind permanent credits the Bank had previously issued to
cardholders after investigating their claims. Additionally, when the Bank used the CFF
to auto-deny an EDD debit cardholder’s new authorized-transaction claim or to rescind
permanent credit, the Bank also automatically froze the cardholder’s account without
any advance notice or reasonable process for regaining access to the account. This
resulted in tens of thousands of Californians being summarily cut off from desperately
needed public benefits, often for months. Cardholders who telephoned the Bank’s
customer service department were subjected to hours-long wait times and, if they
finally got through, were told that there was nothing the Bank could do to assist them.
A.
Federal Preliminary Injunction
On April 1, 2021, plaintiffs filed a consolidated complaint in Yick v. Bank of
America, N.A., No. 21-cv-00376-VC, and a motion for preliminary injunction and
provisional class certification. Judge Chhabria granted that motion and provisionally
certified a Rule 23(b)(2) class on May 17, 2021, concluding that Plaintiffs had shown
a “strong likelihood of success” on their EFTA and California Unfair Competition Law
(“UCL”) claims because the Bank “fail[ed] to conduct an adequate, good faith
investigation when [EDD] cardholders report unauthorized charges,” and instead
relied on “a faulty screening process” (i.e., the CFF) as the sole basis for denying
claims and freezing accounts. FAMCC, Ex. A (“PI Order”) at 1. The Court also found
irreparable injury, noting that “[t]he class is comprised of people who depend on
unemployment benefits to get through the pandemic,” and that Plaintiffs’ evidence
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2850 Page
12 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
(which included declarations from 50 EDD debit cardholders) had shown the Bank’s
“continued denial of these benefits will seriously hinder the ability of many class
members to feed their families and keep a roof over their heads.” Id. at 2.
On June 1, 2021, the district court entered a preliminary injunction (“PI”)
providing broad and immediate relief to the provisionally certified class. Among other
things, the PI prohibited the Bank from denying unauthorized-transaction claims or
freezing accounts based on its CFF, from denying claims or provisional credit without
conducting an investigation, and from denying claims without providing the
cardholder a written explanation of the Bank’s findings. The PI also required the Bank
to implement a process to reopen claims it had previously denied based on its CFF, to
provide provisional credit for any such reopened claims within 10 business days of
reopening, and to properly investigate and resolve all such claims within 45 days of
reopening. FAMCC, Ex. B (PI) ¶¶1-5. Pursuant to the PI, the Bank on June 8, 2021
finally stopped using its CFF to auto-deny EDD cardholders’ unauthorized-transaction
claims and auto-freeze their accounts, and the Bank reopened
of
claims it had wrongfully denied during the pandemic based on its CFF, resulting in
class members being reimbursed
of dollars. Supp. Decl. ¶16.4
B.
CFPB and OCC Consent Orders
More than a year after the PI took effect, the Consumer Financial Protection
Bureau (“CFPB”) and Office of the Comptroller of the Currency (“OCC”) made
similar findings against the Bank, fining the Bank $225 million for violations of federal
law, and causing the Bank to enter into Consent Orders. Consent Order, In the Matter
of Bank of Am., No. 2022-CFPB-0004 (July 14, 2022) (“CFPB Order”); Consent
Order, In the Matter of Bank of Am., N.A., No. AA-ENF-2022-21 (July 14, 2022)
(“OCC Order”). Among other things, these financial regulators found that the Bank
“violated the requirement to conduct a reasonable Error Resolution Investigation under
4 The PI also required the Bank to notify EDD cardholders of their rights under the PI
and to adequately staff its call centers. PI ¶¶7-10.
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2851 Page
13 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
… EFTA,” CFPB Order ¶58; “violated EFTA and Regulation E by failing to timely
investigate EDD Cardholders’ notices of error,” id. ¶83; “took unreasonable advantage
of EDD Cardholders’ inability to protect their interests” by “reversing the permanent
credits for EDD Cardholders,” id. ¶53; and subjected EDD Cardholders to “transfers,
dropped calls, and misinformation,” which “impeded their ability to successfully file
notices of error” under EFTA and the Bank’s EDD Debit Cardholder Agreement, id.
¶72. See also OCC Order Art. II(3)-(6) (substantially similar findings). The CFPB and
OCC required the Bank to develop a remediation plan to compensate affected
consumers. CFPB Order ¶¶93, 99; OCC Order Art. IX-X.
C.
Plaintiffs’ Remaining Claims for Damages, Including Treble and
Punitive Damages.
Although the CFPB’s findings would support an award of treble and punitive
damages,5 the CFPB is not statutorily authorized to obtain treble or punitive damages.
See 12 U.S.C. §5565(a)(3); 15 U.S.C. §1693o(a)(5). Thus, while the payments made
pursuant to the Yick PI and the Consent Orders have provided some compensation,
they fall well short of providing the full scope of relief sought in this MDL.
Of particular relevance to the current ESI discovery dispute, Plaintiffs seek
treble damages under EFTA and punitive damages on their claims for the Bank’s
violations of due process, breach of fiduciary duty, and breach of the implied covenant
of good faith and fair dealing. Under EFTA, a consumer is entitled to treble damages
in any one of three scenarios: (1) where “the financial institution did not provisionally
recredit a consumer’s account within the ten-day period … and the financial institution
5 See, e.g., CFPB Order ¶¶55-58 (finding Bank’s use of its “Fraud Filter to determine
no error had occurred for approximately 188,000 notices of error submitted by
Affected Consumers nationwide concerning alleged unauthorized EFTs, without any
further investigation or considering any other [relevant] information,” violated Bank’s
EFTA obligations to “conduct[] a ‘good faith investigation of the alleged error,’” and
to have “‘a reasonable basis for believing that the consumer’s account was not in
error’” (quoting 15 U.S.C. §1693f(e)); id. ¶53 (finding Bank “took unreasonable
advantage of EDD Cardholders’ inability to protect their interests”))).
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2852 Page
14 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
(A) did not make a good faith investigation of the alleged error, or (B) did not have a
reasonable basis for believing that the consumer’s account was not in error,” or (2)
where “the financial institution knowingly and willfully concluded that the consumer’s
account was not in error when such conclusion could not reasonably have been drawn
from the evidence available to the financial institution at the time of its investigation.”
15 U.S.C. §1693f(e)(1)-(2). The Bank’s knowledge and intent is thus relevant to
Plaintiffs’ treble damages claim.
Plaintiffs will be entitled to punitive damages if they can show that the Bank’s
conduct was either (1) “malicious,” (2) “oppressive,” or (3) “in reckless disregard of
the plaintiff’s rights,” meaning done with “‘complete indifference to the plaintiff’s
safety, rights, or the defendant acts in the face of a perceived risk that its actions will
violate the plaintiff’s rights under federal law.’” Dang v. Cross, 422 F.3d 800, 809-10
(9th Cir. 2005) (quoting 9th Cir. Model Civ. Jury Instr. 7.5 (2002)); see also Smith v.
Wade, 461 U.S. 30, 56 (1983) (punitive damages available under §1983 when
defendant’s conduct “involves reckless or callous indifference to the federally
protected rights of others”); Cal. Civ. Code §3294(a). The availability of punitive
damages thus turns on the defendant’s “motive and intent.” Neal v. Farmers Ins. Exch.,
21 Cal.3d 910, 922 (1978). For a corporate defendant, that means the motives and
intent of an “officer, director, or managing agent,” which can be imputed to the
corporation. Cal. Civ. Code §3294(b); see also White v. Ultramar, Inc., 21 Cal.4th 563,
576-77 (1999) (“managing agents” are those who “exercise substantial discretionary
authority over decisions that ultimately determine corporate policy”).
Issues central to resolution of this case thus include the Bank’s motives and
reasons for (a) developing its Claim Fraud Filter; (b) using its CFF as the basis for
automatically denying EDD debit cardholders’ unauthorized-transaction claims,
rescinding their previously issued permanent credits, and freezing their accounts; (c)
adopting a policy and practice of understaffing its EDD debit card customer service
call centers, such that cardholders were subjected to hours-long wait times; and (d)
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2853 Page
15 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
maintaining these policies even after the Bank knew they were harming large numbers
of legitimate cardholders. Discovery into what the Bank’s senior executives knew
about the CFF and its impacts on legitimate EDD cardholders, when they knew it, what
actions they directed, authorized, or ratified, and why, is critical to these key issues.
III.
HISTORY OF DISCOVERY DISPUTE
Following entry of the Yick PI in June 2021, the JPML transferred the Yick
consolidated cases and many other similar class and individual actions to this Court,
and Judge Burns stayed most discovery during the 20 months the Bank’s motion to
dismiss the prior master complaint was under submission. See ECF 1; ECF 67.6 On
May 25, 2023, the Court denied the Bank’s motion to dismiss the Class Plaintiffs’
EFTA, due process, breach of fiduciary duty, breach of the implied covenant of good
faith, California Consumer Privacy Act (“CCPA”), and negligence claims, and
allowed discovery to proceed. ECF 126.7 The Court also sua sponte entered an
accelerated case schedule that gave Plaintiffs less than eight months to file their motion
for class certification (by January 15, 2024), and the parties less than 10 months to
complete all fact discovery (by March 15, 2024). ECF 139.
Plaintiffs served their Second Set of Requests for Production of Documents
(RFPs 31-73) on June 12, 2023, and their Third Set (RFPs 74-84) on August 15. ECF
212-1 (“Chan Decl.”) ¶¶23, 25.8 Notwithstanding the broad range of disputed issues
and the requirement in the parties’ ESI Protocol to disclose all “custodians (including
current and former executives, employees…) likely to have relevant information,” the
Bank initially disclosed only five individuals, whose knowledge was purportedly
limited to the Bank’s contract and communications with EDD. Id. ¶¶25-26. Plaintiffs
6 Limited discovery was permitted regarding the Bank’s PI compliance. ECF 67.
7 The Court dismissed Plaintiffs’ UCL claim but subsequently granted Plaintiffs leave
to move for reconsideration on that claim. ECF 148.
8 Plaintiffs submitted the Chan Declaration and all exhibits thereto in support of their
Motion to Compel Additional ESI Custodians. ECF 212-1 to -25.
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2854 Page
16 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
used the Bank’s Rule 26(a) initial disclosures and publicly available information to
identify 34 additional individuals who seemed likely to have relevant ESI, and sought
production of the Bank’s relevant organizational charts to enable Plaintiffs to identify
other relevant custodians. Id. ¶¶27, 29. The Bank agreed to add 19 of the 34 but refused
to include any senior executives or board members. Id. ¶¶28-29.
Despite the parties’ dispute over the adequacy of the Bank’s proposal and the
lack of organizational charts, the parties agreed in September 2023, given the
significant time constraints under the case schedule, to proceed with document
collection for this initial “Round 1” set of 24 custodians, and to meet and confer about
“Round 2” custodians after the Bank produced org charts and Plaintiffs had sufficient
opportunity to review the Round 1 documents. Id. ¶¶29-30. When disputes over search
terms delayed the Bank’s production, Plaintiffs further offered to omit four of the
custodians, reducing the number of “Round 1” custodians to just 20. Id. ¶31.
The Bank did not make its first substantial production of ESI documents until
October 23, 2023. Supp. Decl. ¶19. On October 27, given the impending class
certification deadline of January 15, 2024, Judge Berg ordered the Bank to produce all
responsive documents from these first 20 custodians by December 4, 2023, via weekly
rolling productions. ECF 185; Supp. Decl. ¶20. Between October 23 and December 4,
2023, the Bank produced nearly 190,000 documents, approximately half of which
(94,000) were produced on December 1 and 4. Supp. Decl. ¶21.
By late November 2023, it was becoming clear from Plaintiffs’ ongoing review
of the first half of these documents that senior Bank executives (including Moynihan
and Montag) were directly involved in directing and approving the Bank’s CFF policy,
and that they regularly communicated with each other, meaning the previously
designated custodians would be unlikely to have many of their relevant documents. Chan
Decl. ¶33. By then, the Bank had also produced 40 pages of organizational charts
identifying hundreds of employees across 11 relevant departments who were not among
the original 20 ESI custodians. Supp. Decl. ¶18, Exs. 19-20. On November 29, Plaintiffs
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2855 Page
17 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
requested that the Bank produce (1) documents responsive to RFPs 76-79 from six
senior executives (Brian Moynihan, Thomas Montag, Catherine Bessant, Dean
Athanasia, Geoffrey Greener, and Paul Donofrio) and two mid-level executives
(Christine Channels and Thomas Scrivener)9; and (2) documents from 17 non-
executives responsive to a narrow set of RFPs relating to four key topics: the Bank’s
CFF policy, claims processing, card and account security, and customer service call
centers. Chan Decl. ¶33. On December 15, the Bank stated its refusal to produce the
documents of any senior executives, and offered instead to add a single mid-level
executive (Channels) and seven non-executives. Id. ¶¶34-35, Exs. 22-23. To resolve the
dispute, Plaintiffs offered to compromise by agreeing to a total of only eight additional
ESI custodians, as follows:
Bank’s 12/15 Proposal
General Topic (RFPs) Custodian
Plaintiffs’ 12/22 Proposal
(RFPs)
CFF (39-41, 44-45)
Christine
Channels
Agreed
Jennifer Boussuge
Agreed
Anne Holt
Brian Moynihan (76-79)
Ruchira Ghosh
Thomas Montag (76-79)
John Denning
Catherine Bessant (76-79)
Claims Processing/Vendor
Oversight (33-37, 39-41, 66)
Renee Johnson
Agreed
Customer Service (61, 64-66)
Scott Robbins
Dean Athanasia
(76-79)
Rocco Blasi
Agreed
Although the Bank could not face any additional burden by exchanging one ESI
custodian for another, it rejected Plaintiffs’ proposed compromise, withdrew its prior
offer, and argued at the IDC before Judge Berg on January 3, 2024 that no new ESI
custodians should be added. Id. ¶¶36-37. At the IDC, Judge Berg tentatively ruled that
the Bank should add three executive ESI custodians of Plaintiffs’ choosing. Id. ¶37.
9 RFPs 77 and 79 seek only relevant documents “exchanged with or among any of
YOUR EXECUTIVE OFFICERS,” and RFPs 76 and 78 seek only relevant documents
exchanged with or among any member of the Bank’s board of directors. Chan Decl.
Ex. 21. Because no Bank senior executives or directors were among the initial 20
custodians, these requests by definition seek relevant, non-duplicative documents.
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2856 Page
18 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
Plaintiffs would have accepted the tentative ruling as a compromise, but because the
Bank insisted on formally briefing the matter (the first and only time in this case that
either party has challenged a tentative discovery ruling), Plaintiffs did so as well. Supp.
Decl. ¶22. The parties filed cross-motions on January 23 and responsive briefs on
January 30. ECF 205, 209, 212, 214, 215.
Plaintiffs continued reviewing the 94,000 documents (comprising 327,000
pages) that the Bank had produced in early December, including in preparation for
depositions of the Bank’s Rule 30(b)(6) designees from February 6-23, 2024. Supp.
Decl. ¶¶21, 23. In doing so, Plaintiffs unearthed several key documents revealing that,
in the week before the Bank’s implementation of its CFF on September 28, 2020, there
was a
. The Bank’s Rule 30(b)(6)
designee on the CFF, Michael Letson, discussed several of these documents at his
deposition on February 16, 2024. Supp. Decl. ¶24 & Exs. 25, 29-32.
The very next court day, Plaintiffs asked the Bank to consent to Plaintiffs’
submission of additional recently identified evidence to support the pending motion to
compel additional ESI custodians, including several exhibits from the Letson
deposition. Id. ¶25. The Bank refused and said it would seek additional briefing if the
Court permitted Plaintiffs to submit additional evidence. Id. The parties then placed a
joint call to Judge Berg’s chambers, during which Plaintiffs requested leave to submit
a limited number of supplemental exhibits and agreed to the Bank submitting a
responding brief, with no additional briefing from Plaintiffs. Id. The next day, Judge
Berg informed the parties he would not allow any new evidence or briefing, because
briefing “has been closed for nearly three weeks.” Supp. Decl. ¶26 & Ex. 37.
On April 24, Judge Berg granted Plaintiffs’ request for ESI discovery from three
specific custodians (Bessant, Athanasia, and Channels), but denied Plaintiffs’ request
for ESI from the two highest-level executives with the most direct involvement in
approving the CFF policy (CEO Moynihan and GBAM President and COO Montag),
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2857 Page
19 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
as well as from three lower-level managers. ECF 268 at 2. Although Plaintiffs object to
Judge’s Berg’s denial of all five custodians as contrary to law, see infra at 13-17,
Plaintiffs by these objections seek only to set aside the portion of the order denying
discovery from Moynihan and Montag, and to compel the Bank to add Moynihan and
Montag as ESI custodians (in addition to Bessant, Athanasia, and Channels).
IV.
LEGAL STANDARD
“In reviewing a magistrate judge’s order, the district judge ‘must consider timely
objections and modify or set aside any part of the order that is clearly erroneous or is
contrary to law.’” In re BofI Holding, Inc. Sec. Litig., 318 F.R.D. 129, 132 (S.D. Cal.
2016) (quoting Rule 72(a)); see Rockwell Int’l, Inc. v. Pos-A-Traction Indus., Inc., 712
F.2d 1324, 1325 (9th Cir. 1983) (per curiam) (discovery order is non-dispositive order).
“A magistrate judge’s legal conclusions are reviewable de novo to determine whether
they are ‘contrary to law’ and findings of fact are subject to the ‘clearly erroneous’
standard.” In re Qualcomm Litig., No. 17-cv-00108-GPC-MDD, 2018 WL 6617294, at
*3 (S.D. Cal. Dec. 18, 2018) (citation omitted). The “‘contrary to law’ standard ‘allows
independent, plenary review of purely legal determinations by the Magistrate Judge.’
… A magistrate judge’s order ‘is contrary to law when it fails to apply or misapplies
relevant statutes, case law, or rules of procedure.’” Id. (citations omitted).
V.
ARGUMENT
A. The Discovery Order Is Contrary to Law Because it Applies the Wrong
Legal Standard for Compelling Production of Documents.
The standards governing motions to compel discovery are clearly established.
First, Rule 26(b)(1) broadly permits discovery regarding “any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2858 Page
20 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
Second, the Court “must limit the frequency or extent of discovery otherwise allowed
by these rules or by local rule if it determines that … the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2).
Given the Federal Rules’ “liberal discovery principles,” the party resisting
discovery bears a “heavy burden” of showing that the requested discovery is improper.
Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). So long as the party
seeking discovery “satisfies the relevancy requirements of Rule 26(b)(1),” the party
resisting discovery “has the burden to show discovery should not be allowed, and has
the burden of clarifying, explaining, and supporting its objections.” Williams &
Cochrane, LLP v. Quechan Tribe of the Fort Yuma Indian Reservation, No. 17-cv-
1436-GPC-MSB, 2020 WL 2745246, at *1 (S.D. Cal. May 27, 2020) (citation omitted).
Courts in this district and across the country routinely grant requests to compel
additional ESI custodians—including CEOs and other senior executives—under this
well-established Rule 26 standard. See, e.g., Henriquez v. Cemex, Inc., No. 22-cv-
1645-JGB-SP, 2024 WL 1600663, at *4 (C.D. Cal. Jan. 18, 2024) (applying Rule 26
to compel production of CEO’s documents because “the RFPs are limited to … the
core topics of the case” and were not “cumulative or disproportionate to the needs of
the case”); In re Envision Healthcare Corp. Sec. Litig., No. 17-cv-1112, 2020 WL
6750397, at *4 (M.D. Tenn. Nov. 16, 2020) (adding two senior executive custodians
because the “discovery sought is relevant to [plaintiffs’] claim or defense”); MariCal,
Inc. v. Cooke Aquaculture, Inc., No. 14-cv-0366-JDL, 2016 WL 9459260, at *2 (D.
Me. Aug. 9, 2016) (adding CEO as custodian under Rule 26 standard because
“Plaintiffs have established that [the CEO’s] ESI likely includes information that is
‘relevant to any party’s claim or defense’ as contemplated by [Rule] 26(b)(1)”).10
10 See also Rosales v. FitFlop USA, No. 11-cv-0973-W(KSC), 2012 WL 13176110, at
*7 (S.D. Cal. Dec. 10, 2012) (compelling three additional ESI custodians likely to have
relevant evidence based on their job responsibilities); SPS Techs., LLC v. Briles
Aerospace, Inc., No. 18-cv-9536-MWF (ASx), 2019 WL 13108021, at *1 (C.D. Cal.
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2859 Page
21 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
Instead of applying this Rule 26 framework, Judge Berg’s ruling is based on
certain “general principles,” the first of which is that “the party seeking designation of
additional custodians must show ‘that the disputed custodians possess uniquely relevant
information that is not available from the sources already designated.’” ECF 268 at 7
(citations omitted).11 Under that standard, Plaintiffs bear the initial burden of showing not
just that a requested custodian has relevant information, but that their information is
“uniquely relevant” and “not available from the sources already designated.” Id.
This heightened standard, which was the basis for Judge Berg denying
Plaintiffs’ request to add Moynihan and Montag (and several non-executives) as
custodians, is effectively the “apex doctrine” standard—a judicial doctrine derived from
Rule 26(c)(1) to protect high-level executives from the “potential for abuse or
harassment” from being deposed. Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259,
262-63 (N.D. Cal. 2012). The apex doctrine requires the party seeking to compel the
deposition of a high-level executive to meet a heightened standard of showing the
executive “has unique first-hand, non-repetitive knowledge of the facts at issue in the
case,” and that the party seeking the deposition “has exhausted other less intrusive
discovery methods”—including obtaining information through document requests.
WebSideStory, Inc. v. NetRatings, Inc., No. 06-cv-408, 2007 WL 1120567, at *2 (S.D.
Cal. Apr. 6, 2007); accord Apple, 282 F.R.D. at 263; In re Google Litig., No. C 08-
03172 RMW (PSG), 2011 WL 4985279, at *2 (N.D. Cal. Oct. 19, 2011). The rationale
June 25, 2019) (compelling additional ESI custodian where resisting party failed to
carry its burden under Rule 26 of showing disproportionate burden); Mt. Hawley Ins.
Co. v. Felman Prod., Inc., 269 F.R.D. 609, 617 (S.D. W. Va. 2010) (ordering nine
additional ESI custodians likely to have “documents which are relevant to the claims
and defenses of the parties”).
11 Judge Berg cites only two authorities for this standard: In re Facebook, Inc.
Consumer Priv. User Profile Litig., No. 18-md-02843-VC-JSC, 2021 WL 10282213, at
*3, *7 (N.D. Cal. Nov. 14, 2021), a Special Master ruling that compelled Facebook to
produce the ESI of its CEO and COO; and B&G Foods N. Am., Inc. v. Embry, No. 20-
cv-0526-KJM-DB, 2024 WL 626962, at *3 (E.D. Cal. Feb. 14, 2024) (citing
Facebook, but quoting from Facebook’s brief, not the order).
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2860 Page
22 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
for this heightened standard is that depositions of high-level executives pose a
heightened risk of harassment—one that does not exist in a mere ESI search of
executives’ documents. See, e.g., Celerity, Inc. v. Ultra Clean Holding, Inc., No. C 05-
4374-MMC(JL), 2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 2007) (noting document
production is one of the “less intrusive discovery methods” that parties may use to
show that high-level executives made key decisions, thus, and have unique information
that could appropriately subject them to an apex deposition).
Critically here, “courts have declined to extend the apex doctrine outside the
context of depositions ….” L.A. Alliance v. Los Angeles, No. 20-CV-2291-DOC, 2023
WL 5505037, at *6 (C.D. Cal. Aug. 2, 2023) Rosinbaum v. Flower Foods, Inc., 238
F.Supp.3d 738, 749 (E.D.N.C. 2017) (“In no case of which the court is aware has the
apex doctrine successfully been invoked to shield an executive from a request for
production of documents.”); Dyson, Inc. v. Sharkninja Operating LLC, No. 14-cv-
0779, 2016 WL 1613489, at *1 (N.D. Ill. Apr. 22, 2016) (similar). So while the
doctrine “protect[s] senior executives from attending costly and distracting
depositions,” it is not available to shield a defendant from “merely collecting and
producing documents” from senior executives’ ESI. Blankenship v. Fox News
Network, LLC, No. 2:19-cv-00236, 2021 WL 2345972, at *3 n.5 (S.D. W. Va. June 8,
2021) (rejecting defendant’s argument for applying the apex doctrine and ordering
production from 22 executives); see also Shenwick v. Twitter, Inc., No. 16-cv-05314-
JST-SK, 2018 WL 833085, at *1 (N.D. Cal. Feb. 7, 2018) (rejecting argument that
search of CEO documents was “premature” or “should be limited in time and scope,”
and adding CEO to 25 agreed-upon custodians).
Although Judge Berg’s Order correctly states that the “apex doctrine” is
inapplicable to a dispute over collecting executives’ documents, the standard applied
in that Order is indistinguishable from the apex doctrine standard it purports to reject.
Compare ECF 268 at 5 n.3 (finding two out-of-circuit cases, which denied discovery
requests because plaintiffs “failed to demonstrate executives had ‘unique or personal
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2861 Page
23 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
knowledge’ that was ‘necessary and not cumulative,’” to be “inapplicable because they
relied on the ‘apex deposition doctrine’”), with id. at 8-9 (denying Plaintiffs’ request
to add Moynihan and Montag as custodians because “Plaintiffs have not demonstrated
that [they] possess[] ‘uniquely relevant information that is not available from the
sources already designated’”). Even more concerning, the Order applies this
heightened “apex doctrine” standard not only to “apex” custodians, but to all requests
for additional ESI custodians, no matter their level of seniority. See id. at 7, 12. The
standard set forth in the Order turns the burdens under Rule 26 on their head.
Because the apex doctrine does not apply to disputes concerning whether senior
executives (or non-executives) should be added as document custodians, its
application here is contrary to law. The Court should review the evidence de novo
under the proper standard, or remand to Judge Berg to reconsider the evidence under
the correct legal standard.
B. Under Any Potentially Applicable Legal Standard, Plaintiffs Have
Shown Entitlement to ESI from Moynihan and Montag.
As the Discovery Order acknowledges, Plaintiffs demonstrated that Moynihan
and Montag are likely to have relevant documents concerning the Bank’s reasons for
implementing its CFF policy. See ECF 268 at 8-9. That should have been sufficient by
itself to shift the burden to the Bank to show that the requested discovery was improper
(which the Bank failed to do). See Blankenship, 519 F.2d at 429; Williams &
Cochrane, 2020 WL 2745246, at *1. Even under the heightened apex doctrine
standard—indeed, even under the Bank’s “key decision maker” standard that Judge
Berg correctly rejected—Plaintiffs have shown entitlement to Moynihan and Montag’s
documents because they were among the key decision-makers who approved the
Bank’s CFF strategies at the heart of this case and who are likely to have unique, non-
duplicative documents not obtainable from the existing custodians. Judge Berg’s
decision was thus contrary to law and must be reversed. See Cohen v. Trump, Nos. 13-
cv-2519-GPC-WVG, 10-cv-0940-GPC-WVG, 2015 WL 3966140, at *7 (S.D. Cal.
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2862 Page
24 of 34
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2863 Page
25 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
other senior executives who are not existing custodians—about the Bank’s strategies
for managing operational losses in the Bank’s EDD debit card program. For example,
an email dated S
. Supp. Decl. Ex. 27. A September 23,
2020 email discussing the Bank’s
” on these issues. Supp. Decl. Ex. 28. Communications exchanged directly
between Moynihan and other senior executives would not be in the possession of any
existing custodians. Cf. In re Facebook, 2021 WL 10282213, at *2, 5-6 (compelling
Facebook to produce CEO and COO documents).
Other Bank documents show that Moynihan, as a member of the Bank’s “MTM”
(i.e. management team), personally approved the CFF. Those documents show that
. Supp. Decl. Exs. 29-33. Another document indicates that Moynihan
personally approved the Bank’s use of the CFF to auto-freeze EDD cardholder
accounts. In a chat between two managers the day after the CFF was implemented, one
manager relayed
for a “5:30 meeting w BTM [Brian T.
Moynihan].” Chan Decl. Ex. 7. At 7:40 p.m., the manager asked, “Any word if Brian
approved us moving forward?” to which the other replied, “[W]e are freezing all the
atm/combo cards but that’s all we have approval for … 46k cards being frozen tonight
that make up $282MM of our claims.” Id. In other words, they were awaiting CEO
Moynihan’s approval before proceeding with the proposal to use the new CFF to freeze
46,000 cardholders’ access to their public benefits. Judge Berg stated that this
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2864 Page
26 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
document does not establish Moynihan approved those freezes (ECF 268 at 8), but that
misstated Plaintiffs’ burden under Rule 26 and, indeed, required Plaintiffs to meet a
burden even more onerous than the already heightened apex deposition standard. See
Henriquez, 2024 WL 1600663, at *3 (moving party’s “initial threshold” under apex
standard is “not a high bar,” whereas resisting party “has a heavy burden”). Even under
the apex doctrine, “[t]he party seeking to take such a deposition does not need to prove
conclusively in advance that the deponent definitely has unique, non-repetitive
information.’” Hunt v. Continental Cas. Co., No. 13-5966, 2015 WL 1518067, at *2
(N.D. Cal. Apr. 3, 2015) (citations omitted; emphases added); see Six West Retail
Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 102-06 (S.D.N.Y. 2001)
(CEO deposition allowed where can “infer” his unique knowledge).
Plaintiffs also presented evidence showing that Moynihan personally prepared
memoranda and personally made presentations to the Bank’s board of directors on key
issues in this litigation (e.g., the Bank’s anti-fraud strategies). See Chan Decl. Exs. 10-
12. Judge Berg found this evidence insufficient, relying on the Bank’s unsupported
assertion that “if any of these [Exhibits] resulted in relevant Board materials, Plaintiffs
already have them.” ECF 268 at 8 (alteration and emphasis in original). But
communications, memoranda, and notes on key issues (e.g., the CFF, account freezes,
customer service, EMV chips) that Moynihan prepared or reviewed for board meetings
are highly relevant, regardless of whether they were formally incorporated into “Board
materials.” After all, Moynihan’s notes and memoranda are evidence of what was told
to the Board, separate and distinct from formal meeting minutes, and, they are
inherently uniquely relevant, because they show what the Bank’s CEO knew. See
Shenwick, 2018 WL 833085, at *1 (holding CEO was proper custodian when he may
“have a document or documents that other custodians have not retained, or even . . .
have created a document, such as handwritten notes, that no other custodian
possesses”). Again, Judge Berg imposed a standard more onerous than even the
heightened apex deposition standard, which recognizes that the term “unique”
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2865 Page
27 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
21
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
information means personal knowledge, not exclusive knowledge. See In re Nat'l W.
Life Ins. Deferred Annuities Litig., No. 05-CV-1018-AJB (WVG), 2011 WL 1304587,
at *1 (S.D. Cal. Apr. 6, 2011) (ordering deposition of CEO and COO because “when
a witness has personal knowledge of facts relevant to the lawsuit, even a corporate
president or CEO is subject to deposition”). Even under the apex doctrine, “[i]t is very
unusual … for a court to prohibit the taking of a deposition altogether absent
extraordinary circumstances, as such an order would likely be in error.” Id. at *1
(quoting Salter v. Upjohn, 593 F.2d 649, 651 (5th Cir.1979)). Courts routinely compel
the deposition of CEOs and other high-level executives where, as here, there is
evidence they attended key meetings, were members of decision-making committees,
or otherwise had percipient knowledge of relevant issues.13
Moynihan’s critical role in directing and approving the Bank’s CFF policy is
now clearer than ever, based on additional documents Plaintiffs found among the
90,000 documents the Bank produced in the final days of its Court-ordered December
4 production deadline, which Plaintiffs had not fully reviewed before their motion to
compel was due. Supp. Decl. ¶¶23-25; see supra n.1. These documents demonstrate
that, even under an “apex deposition” standard or the Bank’s “decision-maker on key
issues” standard, Moynihan meets the test. His electronic and other files likely contain
highly relevant and unique documents not in the possession of any other custodian,
and his CEO title does not shield the Bank from having to search them.14
13 See, e.g., Moyle v. Liberty Mut. Retirement Bene. Plan, No. 10-cv-2179-DMS
(MDD), 2012 WL 5373421, at *4 (S.D. Cal. Oct. 30, 2012) (allowing deposition of
executive who “was a member of [the] Committee that approved the benefits plan at
issue”); Perez v. Genoptix, Inc., No. 18-cv-2545-LAB-MDD, 2019 WL 12517081, at
*2 (S.D. Cal. Jan. 11, 2019) (allowing deposition of board chairman where email
suggested chairman “may have unique, personal knowledge” of material issues); In re
Transpacific Passenger Air Transp. Antitrust Litig., No. C-07-5634 CRB (DMR),
2014 WL 939287, at *1, 3 (N.D. Cal. Mar. 6, 2014) (compelling deposition of CEO
who attended key meetings); Powertech Tech., Inc. v. Tessera, Inc., No. C 11-6121
CW, 2013 WL 3884254, at *2 (N.D. Cal. July 26, 2013) (compelling deposition of
board member because he “considered and voted on matters relevant to this case”).
14 See, e.g., Blankenship, 2021 WL 2345972, at *3-5 (compelling discovery from six
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2866 Page
28 of 34
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2867 Page
29 of 34
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2868 Page
30 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
demonstrated, adding Montag and Moynihan as custodians is proportional to the needs of
the case. See ECF 212 at 6-7. Each of the Rule 26(b)(1) factors weighs in Plaintiffs’ favor.
First, the issues at stake are critically important, and the amount in controversy
is considerable. The proposed class includes more than 100,000 vulnerable
Californians who were deprived of, and denied access to, hundreds of millions of
dollars in desperately needed public benefits. The amount in controversy remains in
the hundreds of millions of dollars, even after offsetting the amounts the Bank pursuant
to the Yick PI and CFPB/OCC Consent Orders.
Second, the requested discovery is critical to resolving core disputed issues. If
the documents confirm—as Plaintiffs have shown is likely (see Chan Decl. Exs. 3, 11,
13-14; Supp. Decl. Exs. 24-28)—that top Bank executives directed the CFF policy to
protect the Bank at the expense of innocent cardholders, that would support Plaintiffs’
claims for breach of fiduciary duty, breach of the implied covenant, and entitlement to
treble and punitive damages. Likewise, if the documents confirm—as Plaintiffs have
shown is likely (see Chan Decl. Exs. 7, 11-12, 15-16; Supp. Decl. Exs. 29-31, 33-
35)—that top executives authorized the CFF policy and its continued use despite
knowing it was wrongfully depriving tens of thousands of innocent Californians of
critical funds for weeks and months on end, that would further demonstrate the Bank’s
knowledge and willfulness, and thus Plaintiffs’ entitlement to treble and punitive
damages. See supra at 7-9. See In re Facebook, Inc. Consumer Priv. User Profile
Litig., 2021 WL 10282213, at *3, *7 (compelling document production from CEO
where plaintiff argued “his files will shed light on [defendant’s] knowledge and intent
. . . [which] are central to … punitive damages”); Blankenship, 2021 WL 2345972, at
*2 (affirming magistrate judge’s decision to compel production from 22 executive
custodians “in order to explore further evidence of actual malice”).
Third, the burden of “having to produce relevant emails is low.” Dyson, 2016
WL 1613489, at *1; Blankenship, 2021 WL 2345972, at *3 n.5. BANA offered eight
additional ESI custodians in December 2023 and admitted its incremental per-
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2869 Page
31 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
25
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
custodian cost is the same for executives and non-executives. See ECF 209-2, Decl. of
Dustin Anderson ¶¶9-11. Producing documents from five executive custodians—
Moynihan, Montag, Bessant, Athanasia, and Channels—would be less burdensome
than the Bank’s own proposal for an additional eight non-executives.
Finally, Plaintiffs’ document requests are narrowly tailored to seek only
documents not held by existing custodians, as RFPs 76-79 are limited to documents
exchanged between and among executives and/or board members. Moreover, to the
extent some of Moynihan’s and Montag’s documents duplicate those already produced
from other custodians, any “burden can be substantially mitigated by application of
appropriately narrow search terms and de-duplication of ESI across custodians.”
Williams v. Apple, Inc., No. No. 19-cv-04700-LHK, 2020 WL 5107639, *2 (N.D. Cal.
Aug. 31, 2020); accord SPS Techs., 2019 WL 13108021, at *1 (“Plaintiff may use de-
duplicating software to limit any burden of reviewing and producing duplicative
documents.”). Given the narrow scope of RFPs 76-79 and the Bank’s ability to de-
duplicate before reviewing, the Bank’s vendor’s cost estimate, which assumes that
every new custodial search would involve the same level of document collection,
review, and production as the first 20 custodians, is grossly inflated. In any event, the
Bank is exceptionally profitable and well-resourced, reporting $94 billion in annual
revenue and over $3 trillion in assets in its 2022 Form 10-K. See Chan Decl. ¶¶38-39.
Given the importance of the requested discovery to the issues, any burden or expense
is far outweighed by the likely benefit of the discovery. See Fed. R. Civ. P. 26(b)(1).
VI.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court modify
the Discovery Order and compel the Bank to add Moynihan and Montag as additional
ESI custodians in responding to RFPs 76-79, or alternatively, to remand to Judge Berg
for reconsideration under the correct Rule 26 legal standard and in light of Plaintiffs’
supplemental evidence.
/ / /
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2870 Page
32 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
Respectfully submitted,
Dated: May 8, 2024
COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Brian Danitz
JOSEPH W. COTCHETT
BRIAN DANITZ
KARIN B. SWOPE
ANDREW F. KIRTLEY
Dated: May 8, 2024
ALTSHULER BERZON LLP
By: /s/ Connie K. Chan
MICHAEL RUBIN
STACEY M. LEYTON
CONNIE K. CHAN
COLIN CLEMENTE JONES
Co-Lead Counsel for Plaintiffs and the
Proposed Class
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2871 Page
33 of 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
27
MPA ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART
MAGISTRATE JUDGE’S APRIL 24, 2024 DISCOVERY ORDER
Case No. 3:21-md-02992-GPC-MSB
SIGNATURE CERTIFICATION
Pursuant to Section 2(f)(4) of this Court’s Electronic Case Filing Administrative
Policies and Procedures Manual, I, Connie K. Chan, hereby certify that the content of
this document is acceptable to all the signatories herein and that I have obtained
counsel’s authorization to affix their electronic signatures to this document.
/s/ Connie K. Chan
CONNIE K. CHAN
Case 3:21-md-02992-GPC-MSB Document 278-1 Filed 05/08/24 PageID.2872 Page
34 of 34File and source
- File
- gov.uscourts.casd.709615.278.1.pdf
- Size
- 885,007 bytes
- SHA-256
- 23e352c753070dcf60171aa411b862f888cdca80130210fae11b44100fb6dd35
- Original
- PACER (login required)