Declaration re 278 Notice (Other) — In re Bank of America California Unemployment Benefits Litigation (Dkt. 279, S.D. Cal. No. 3:21-md-02992)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 279 · 2024-07-19 · Docket on CourtListener

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SUPP. CHAN DECL. ISO OF PLS.’ OBJ. & MOT. TO REV. IN PART 
MAGISTRATE JUDGE’S 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 
 
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 
 
SUPPLEMENTAL DECLARATION 
OF CONNIE K. CHAN 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 (2d floor) 
 
REDACTED VERSION FOR PUBLIC 
FILING 
 
Case 3:21-md-02992-GPC-MSB     Document 279     Filed 05/09/24     PageID.2873     Page 1
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SUPP. CHAN DECL. ISO OF PLS.’ OBJ. & MOT. TO REV. IN PART 
MAGISTRATE JUDGE’S DISCOVERY ORDER 
Case No.: 3:21-md-02992-GPC-MSB 
 
SUPPLEMENTAL DECLARATION OF CONNIE K. CHAN 
I, Connie K. Chan, hereby declare as follows: 
1.  I am a partner at the San Francisco law firm of Altshuler Berzon LLP, 
which is co-lead counsel for Plaintiffs and the putative class in this action. I submit 
this supplemental declaration in support of Plaintiffs’ Objections to and Motion to 
Reverse in Part Magistrate Judge Berg’s April 24, 2024 Discovery Order regarding 
additional ESI custodians (ECF 268). I previously submitted a declaration in support 
of Plaintiffs’ Motion to Compel Additional Custodians, attaching 23 exhibits, 
available at ECF 212-1 through 212-25. I have personal knowledge of the facts set 
forth in this declaration and if called as a witness in this action, I could and would 
testify competently to these facts. 
2.  An Index of Supplemental Exhibits to this declaration is attached to this 
declaration. 
3.  Attached hereto as Exhibit 24 is a true and correct copy of a document 
produced by Defendant Bank of America, N.A. (“Defendant” or the “Bank”) in this 
action Bates-stamped BANA_EDD_MDL-00169896–97. 
4.  Attached hereto as Exhibit 25 is a true and correct copy of a document 
produced by Defendant on December 1, 2023, Bates-stamped BANA_EDD_MDL-
00371977, which was Exhibit 83 to the deposition of the Bank’s Rule 30(b)(6) 
designee, Michael Letson, taken on February 16, 2024.  
5.  Attached hereto as Exhibit 26 is a true and correct copy of a document 
produced by Defendant on December 22, 2023, Bates-stamped BANA_EDD_MDL-
00694889–90. 
6.  Attached hereto as Exhibit 27 is a true and correct copy of a document 
produced by Defendant on December 1, 2023, Bates-stamped BANA_EDD_MDL-
00372012–13. 
7.  Attached hereto as Exhibit 28 is a true and correct copy of a document 
produced by Defendant on December 1, 2023, Bates-stamped BANA_EDD_MDL-
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SUPP. CHAN DECL. ISO OF PLS.’ OBJ. & MOT. TO REV. IN PART 
MAGISTRATE JUDGE’S DISCOVERY ORDER 
Case No.: 3:21-md-02992-GPC-MSB 
 
 
00421427–28. 
8.  Attached hereto as Exhibit 29 is a true and correct copy of a document 
produced by Defendant on December 1, 2023, Bates-stamped BANA_EDD_MDL-
00450516–18, which was Exhibit 85 to the deposition of the Bank’s Rule 30(b)(6) 
designee, Michael Letson, taken on February 16, 2024. 
9.  Attached hereto as Exhibit 30 is a true and correct copy of a document 
produced by Defendant Bates-stamped BANA_EDD_MDL-00125863–64, which 
was Exhibit 86 to the deposition of the Bank’s Rule 30(b)(6) designee, Michael 
Letson, taken on February 16, 2024. 
10.  Attached hereto as Exhibit 31 is a true and correct copy of a document 
produced by Defendant on December 4, 2023, Bates-stamped BANA_EDD_MDL-
00570351, which was Exhibit 87 to the deposition of the Bank’s Rule 30(b)(6) 
designee Michael Letson, taken on February 16, 2024. 
11.   Attached hereto as Exhibit 32 is a true and correct copy of a document 
produced by Defendant on December 4, 2023, Bates-stamped BANA_EDD_MDL-
00528602, which was Exhibit 88 to the deposition of the Bank’s Rule 30(b)(6) 
designee Michael Letson, taken on February 16, 2024. 
12.   Attached hereto as Exhibit 33 is a true and correct copy of excerpts from 
the February 16, 2024 Rule 30(b)(6) deposition of Bank designee Michael Letson. 
13.   Attached hereto as Exhibit 34 is a true and correct copy of a document 
produced by Defendant on December 4, 2023, Bates-stamped BANA_EDD_MDL-
00497802–04. 
14.   Attached hereto as Exhibit 35 is a true and correct copy of a document 
produced by Defendant on December 4, 2023, Bates-stamped BANA_EDD_MDL-
00510141. 
15.   Attached hereto as Exhibit 36 is a true and correct copy of a document 
produced by Defendant on October 23, 2023, titled 
 
 Bates-stamped BANA_EDD_ 
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SUPP. CHAN DECL. ISO OF PLS.’ OBJ. & MOT. TO REV. IN PART 
MAGISTRATE JUDGE’S DISCOVERY ORDER 
Case No.: 3:21-md-02992-GPC-MSB 
 
 
MDL-00100634–79, which was Exhibit 17 to the deposition of the Bank’s Rule 
30(b)(6) designee Shane Daniels, taken on February 6, 2024. 
16.  In a letter dated December 5, 2021 regarding the Bank’s production of 
documents relating to the Bank’s compliance with the Preliminary Injunction issued 
in Yick v. Bank of America, N.A., No. 21-cv-00376-VC, counsel for the Bank 
represented that “
 
.” 
17.  Background on the parties’ current discovery dispute regarding ESI 
custodians is set forth in my previous declaration at ECF 212-1, ¶¶24-37. I set forth 
the following as additional context. 
18.  In response to Plaintiffs’ request that the Bank produce organizational 
charts after the parties had agreed on an initial set of 20 custodians from whom the 
Bank would collect and produce ESI, the Bank on October 20, 2023 produced 40 
pages of organizational charts identifying 
 
 who were not among the initial 20 ESI custodians whose 
electronic files the Bank had agreed to search. The parties agreed to meet and confer 
about additional custodians once Plaintiffs had a reasonable opportunity to review 
the documents produced by the Bank from the initial set of 20 custodians. 
19.  The Bank made its first substantial production of ESI on October 23, 
2023, consisting of 11,960 documents. 
20.  On October 27, 2023, given the then-impending class certification 
deadline of January 15, 2024, Judge Berg ordered the Bank to complete its 
production of ESI from the initial set of 20 custodians no later than December 4, 
2023, through weekly rolling productions. 
21. Between October 23 and December 4, 2023, the Bank produced 190,652 
documents. Of those, more than 94,000 were produced on December 1 and 
December 4. The Bank made small additional productions on December 15 and 
December 22, and the parties have continued to exchange discovery since then. A 
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SUPP. CHAN DECL. ISO OF PLS.’ OBJ. & MOT. TO REV. IN PART 
MAGISTRATE JUDGE’S DISCOVERY ORDER 
Case No.: 3:21-md-02992-GPC-MSB 
 
 
schedule of the Bank’s productions through December 22 is summarized below: 
 
Volume 
Date 
Produced 
Bates Range 
Documents 
Vol004 
09/24/21 
BANA_EDD_MDL-00000711-1045 
36 
Vol007 
10/18/21 
BANA_EDD_MDL-00001059-1231 
55 
Vol007_Suppl 12/02/21 
BANA_EDD_MDL-00001190-1214 
N/A 
Vol008 
11/22/21 
BANA_EDD_MDL-00001232-1306 
53 
Vol009 
12/03/21 
BANA_EDD_MDL-00001307-1311 
5 
Vol010 
12/05/21 
BANA_EDD_MDL-00001312-1404 
40 
Vol011 
12/05/21 
BANA_EDD_MDL-00001405 
1 
Vol012 
04/19/23 
BANA_EDD_MDL-00001406-12722 
1,131 
Vol013 
05/12/23 
BANA_EDD_MDL-00012723-12790 
1 
Vol014 
07/21/23 
BANA_EDD_MDL-00012791-18383 
314 
Vol015 
08/14/23 
BANA_EDD_MDL-00018384-19732 
329 
Vol016 
08/29/23 
BANA_EDD_MDL-00019733-21173 
128 
Vol017 
09/20/23 
BANA_EDD_MDL-00021174-21180 
4 
Vol018 
09/22/23 
BANA_EDD_MDL-00021181-29727 
2,466 
Vol019 
09/27/23 
BANA_EDD_MDL-00029728-29839 
19 
Vol020 
09/27/23 
BANA_EDD_MDL-00029840-42575 
2,804 
Vol021 
09/29/23 
BANA_EDD_MDL-00042576-54575 
1,255 
Vol022 
10/04/23 
BANA_EDD_MDL-00054576-56912 
243 
Vol023 
10/04/23 
BANA_EDD_MDL-00056913-56936 
24 
Vol024 
10/13/23 
BANA_EDD_MDL-00056937-57836 
304 
Vol025 
10/20/23 
BANA_EDD_MDL-00057837-57878 
1 
Vol026 
10/23/23 
BANA_EDD_MDL-00057879-102471 11,960 
Vol027 
10/23/23 
BANA_EDD_MDL-00102472-102587 6 
Vol028 
10/30/23 
BANA_EDD_MDL-00102588-130475 10,732 
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SUPP. CHAN DECL. ISO OF PLS.’ OBJ. & MOT. TO REV. IN PART 
MAGISTRATE JUDGE’S DISCOVERY ORDER 
Case No.: 3:21-md-02992-GPC-MSB 
 
 
Vol029 
11/02/23 
BANA_EDD_MDL-00130476-139058 1,431 
Vol030 
11/06/23 
BANA_EDD_MDL-00139059-186896 17,871 
Vol031 
11/13/23 
BANA_EDD_MDL-00186897-231170 15,793 
Vol032 
11/20/23 
BANA_EDD_MDL-00231171-233391 547 
Vol033 
11/20/23 
BANA_EDD_MDL-00233392-367347 37,358 
Vol034 
12/01/23 
BANA_EDD_MDL-00367348-485500 31,561 
Vol035 
12/04/23 
BANA_EDD_MDL-00485501-694813 63,267 
Vol036 
12/15/23 
BANA_EDD_MDL-00694814-694849 9 
Vol037 
12/22/23 
BANA_EDD_MDL-00694850-695300 117 
TOTAL 
 
 
199,865 
 
22.  The parties submitted informal letter briefs on the issue of ESI custodians 
to Judge Berg, who conducted an IDC on January 3, 2024 and tentatively ruled that 
the Bank should be ordered to add three executive custodians of Plaintiffs’ 
choosing. Plaintiffs would have accepted Judge Berg’s tentative ruling as a 
compromise, but because the Bank informed Plaintiffs that it would seek leave to 
formally brief the issue, the parties jointly requested to brief Plaintiffs’ request to 
add additional ESI custodians and the Bank’s objections thereto on January 5, 2024. 
Judge Berg set a briefing schedule, pursuant to which the parties filed seven-page 
opening briefs on January 23, 2024 and three-page response briefs on January 30, 
2024. 
23.  At the time Plaintiffs’ IDC letter brief and motion to compel briefs were 
due, Plaintiffs had not yet completed their review of the 190,652 documents 
produced by the Bank between October 23 and December 4, 2023. Plaintiffs’ review 
of the Bank’s document productions was and still is ongoing. 
24.  After Plaintiffs submitted their January 30, 2024 response brief, and in 
the course of their ongoing review of the Bank’s document productions, Plaintiffs 
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SUPP. CHAN DECL. ISO OF PLS.’ OBJ. & MOT. TO REV. IN PART 
MAGISTRATE JUDGE’S DISCOVERY ORDER 
Case No.: 3:21-md-02992-GPC-MSB 
 
 
identified many more documents supporting their request to add Bank of America 
CEO Brian Moynihan and Bank of America COO and President of Global Banking 
and Markets (“GBAM”) until December 2021 Thomas Montag as ESI custodians. 
Almost all of those newly identified documents were among the more than 94,000 
produced by the Bank on December 1 and 4, or later. See Exs. 25, 26, 27, 28, 29, 31, 
32, 34, 35. Plaintiffs identified several of these key documents in preparing for the 
Rule 30(b)(6) deposition of Michael Letson, the Bank’s designee on various topics 
related to the Bank’s “Claim Fraud Filter,” taken February 16, 2024. See Exs. 25, 
29, 30, 31, 32. 
25.  On Tuesday, February 20, 2024, I contacted counsel for the Bank and 
asked the Bank to consent to Plaintiffs’ submission of additional recently identified 
evidence to support Plaintiffs’ then-pending motion to compel additional ESI 
custodians. The Bank opposed and stated it would seek additional briefing if the 
Court permitted Plaintiffs to submit additional evidence, to which I stated Plaintiffs 
had no objection. The same day, the parties placed a joint call to Judge Berg’s 
chambers, during which Plaintiffs requested leave to submit a limited number of 
additional exhibits and agreed that the Bank should be allowed to submit a 
responding brief, with no additional briefing from Plaintiffs. 
26.  The next day, Judge Berg informed the parties that he would not allow 
any new evidence or briefing because “[b]riefing has been closed since January 30, 
2024.” A true and correct copy of the notification from Magistrate Judge Berg’s 
chambers denying Plaintiffs’ request to supplement the record is attached hereto as 
Exhibit 37. 
I declare under penalty of perjury that that the foregoing is true and correct.  
Executed this 8th day of May, 2024 in Burlingame, California. 
 
 
 
 
 
/s/ Connie K. Chan 
 
 
 
 
 
 
 
Connie K. Chan 
Case 3:21-md-02992-GPC-MSB     Document 279     Filed 05/09/24     PageID.2879     Page 7
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