Response in Opposition re 278 Motion for Order filed by Bank of America, N.A. — In re BofA Unemployment Litigation (Dkt. 287)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 287 · 2024-07-19 · Docket on CourtListener

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OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA  02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
 
SABRINA M. ROSE-SMITH (pro hac vice) 
SRoseSmith@goodwinlaw.com 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N Street, NW 
Washington, DC 20036 
Tel.: +1 202 346 4000 
Fax: +1 202 346 4444 
 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA  02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
Attorneys for Defendant  
BANK OF AMERICA, N.A. 
 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA  
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Case No. 21-MD-02992-GPC-MSB 
MEMORANDUM OF POINTS 
AND AUTHORITIES IN 
OPPOSITION TO PLAINTIFFS’ 
OBJECTIONS TO AND MOTION 
TO REVERSE IN PART 
MAGISTRATE JUDGE’S 
APRIL 24, 2024 DISCOVERY 
ORDER 
 
Date:   
July 19, 2024      
Time:  
1:30 p.m.       
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2924     Page 1
of 33

 
 
 
 
 
 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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Ctrm:   
2D      
Judge:  
Hon. Gonzalo P. Curiel      
 
Filed/Lodged Concurrently with: 
  1.  Declaration of Michelle L. Briggs 
  2.  Declaration of Dustin Anderson 
 
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2925     Page 2
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OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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TABLE OF CONTENTS 
Page 
I. 
INTRODUCTION ........................................................................................... 1 
II. 
PROCEDURAL BACKGROUND ................................................................. 3 
A. 
THE “BACKGROUND” AND “HISTORY OF DISCOVERY 
DISPUTE” SECTIONS OF PLAINTIFFS’ BRIEF ARE 
LARGELY IRRELEVANT AND WOEFULLY 
INCOMPLETE. .................................................................................... 3 
1. 
PLAINTIFFS IGNORE THE EXPLOSION OF 
PANDEMIC FRAUD THAT PRECIPITATED THE 
DEVELOPMENT OF THE FRAUD FILTER. ......................... 3 
2. 
PLAINTIFFS IGNORE THAT LITTLE REMAINS OF 
THEIR CASE. ............................................................................ 6 
B. 
BANA’S DISCOVERY EFFORTS HAVE BEEN 
SUBSTANTIAL AND COMPREHENSIVE. ...................................... 7 
C. 
THE INSTANT DISCOVERY DISPUTE ........................................... 9 
III. 
LEGAL STANDARD ................................................................................... 10 
IV. 
ARGUMENT ................................................................................................ 12 
A. 
MAGISTRATE JUDGE BERG APPLIED THE CORRECT 
LEGAL STANDARD. ........................................................................ 12 
1. 
THE “GENERAL PRINCIPLES” APPLIED BY 
MAGISTRATE JUDGE BERG AND THE “RULE 26 
FRAMEWORK” PROFFERED BY PLAINTIFFS ARE 
THE SAME. ............................................................................. 12 
2. 
THE “APEX DOCTRINE” WAS NOT APPLIED. ................ 15 
B. 
MAGISTRATE JUDGE BERG CORRECTLY FOUND THAT 
NEITHER MOYNIHAN NOR MONTAG IS LIKELY TO 
POSSESS UNIQUELY RELEVANT INFORMATION. .................. 17 
1. 
MAGISTRATE JUDGE BERG CORRECTLY DENIED 
PLAINTIFFS’ REQUEST FOR ESI FROM 
MOYNIHAN. ........................................................................... 17 
2. 
MAGISTRATE JUDGE BERG CORRECTLY DENIED 
PLAINTIFFS’ REQUEST FOR ESI FROM MONTAG. ........ 21 
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2926     Page 3
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C. 
MAGISTRATE JUDGE BERG CORRECTLY REJECTED 
PLAINTIFFS’ PROPORTIONALITY ARGUMENTS. .................... 24 
V. 
CONCLUSION ............................................................................................. 24 
CERTIFICATE OF SERVICE ................................................................................ 26 
 
 
 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Coleman v. Dep’t of Healthcare Serv., 
No. 2:18-cv-02497 MCE AC, 2020 WL 589194 (E.D. Cal. Feb. 6, 
2020) ................................................................................................................... 11 
Computer Economics, Inc. v. Gartner Group, Inc., 
50 F. Supp. 2d 980, 983 (S.D. Cal. 1999) .......................................................... 11 
Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 
508 U.S. 602 (1993) ........................................................................................... 10 
Cusano v. Klein, 
264 F.3d 936 (9th Cir. 2001) .............................................................................. 17 
In re Envision Healthcare Corp. Sec. Litig., 
No. 17-cv-1112, 2020 WL 6750397 (M.D. Tenn. Nov. 16, 2020) .................... 14 
In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & 
Antitrust Litig., 
No. 17-md-2785-DDC-TJJ, 2018 WL 1440923, at *2 (D. Kan. Mar. 
15, 2018) ............................................................................................................. 12 
In re Facebook, Inc. Consumer Priv. User Profile Litig., 
No. 3:18-MD-02843-VC-JSC, 2021 WL 10282213 (N.D. Cal. Nov. 
14, 2021) ...................................................................................................... passim 
In re Grant, 
No. 20-cv-02465-DMS (JLB), 2021 WL 2895729 (S.D. Cal. July 9, 
2021) ................................................................................................................... 11 
Henriquez v. Cemez, Inc., 
No. 22-cv-1645-JGB-SP, 2024 WL 1600663 (C.D. Cal. Jan. 18, 
2024) ................................................................................................................... 14 
Laryngeal Mask Co. Ltd. v. Ambu A/S, 
No. 3:07-cv-01988 DMS NLS, 2009 WL 10672436 (S.D. Cal. July 
17, 2009) ............................................................................................................. 11 
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Loftis v. Ramos, 
No. 16-cv-2300-MMA (DHB), 2018 WL 1444859 (S.D. Cal. Mar. 
20, 2018) ............................................................................................................. 11 
MariCal, Inc. v. Cooke Aquaculture, Inc., 
No. 14-cv-0366-JDL, 2016 WL 9459260 (D. Me. Aug. 9, 2016) ..................... 14 
McAdam v. State Nat. Ins. Co., Inc., 
15 F. Supp. 3d 1009 (S.D. Cal. 2014) .......................................................... 11, 12 
 
Mt. Hawley Ins. Co. v. Felman Prod., Inc., 
269 F.R.D. 609 (S.D. W. Va. 2010) ................................................................... 15 
In re Qualcomm Litig., 
No. 17-cv-00108-GPC-MDD, 2018 WL 6617294 (S.D. Cal. Dec. 
18, 2018) ............................................................................................................. 12 
Rosales v. FitFlop USA, 
No. 11-cv-0973-W(KSC), 2012 WL 13176110 (S.D. Cal. Dec. 10, 
2012) ................................................................................................................... 14 
Shenwick v. Twitter, Inc., 
No. 16-cv-05314-JST (SK), 2018 WL 833085 (N.D. Cal. Feb. 7, 
2018) ................................................................................................................... 18 
SPS Techs., LLC v. Briles Aerospace, Inc., 
No. 18-cv-9536-MWF, 2019 WL 13108021 (C.D. Cal. June 25, 
2019) ................................................................................................................... 14 
Superior Commc’ns v. Earhugger, Inc., 
257 F.R.D. 215, 217 (C.D. Cal. 2009) ............................................................... 21 
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) ................................................................................................................... 13 
Other Authorities 
Fed. R. Civ. P. 26 ......................................................................................... 11, 13, 24 
Fed. R. Civ. P. 72 ................................................................................................. 2, 10 
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California Legislative Analyst’s Office, Legislative Oversight of 
Ongoing Challenges at EDD (Jan. 26, 2021), available at 
https://lao.ca.gov/handouts/state_admin/2021/EDD-Challenges-
012621.pdf ........................................................................................................ 4, 5 
Consent Order, In the Matter of Bank of Am., N.A., 
Consumer Financial Protection Bureau, No. 2022-CFPB-0004 (Jul. 
14, 2022) ............................................................................................................... 6 
Consent Order, In the Matter of Bank of Am., N.A.,  
Office of the Comptroller of Currency, No. AA-ENF-2022-21 (Jul. 
14, 2022) ............................................................................................................... 6 
Patrick McGreevy, California unemployment fraud could top $9 
billion, double previous estimate, expert warns, L.A. TIMES (Jan. 
15, 2021), https://www.latimes.com/california/story/2021-01-
15/unemployment-benefit-fraud-california-billions-edd ..................................... 4 
 
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I. 
INTRODUCTION 
This motion is Plaintiffs’ latest attempt to harass Bank of America, N.A. 
(“BANA”) with unnecessary, duplicative and burdensome discovery demands to 
push settlement of this case.  Magistrate Judge Berg, who has been intimately 
involved in managing discovery in this action since its inception, already considered 
and rejected Plaintiffs’ arguments in a detailed twelve-page order.  See April 24, 2024 
Discovery Order, Dkt. 268 (“Order”).  Plaintiffs nonetheless seek to thwart the 
Magistrate Judge’s well-reasoned determination by escalating their pursuit of ESI 
discovery from BANA’s top executives—CEO Brian Moynihan and former 
President of Global Banking and Markets and COO Thomas Montag—to this Court.  
They bring this motion even though Moynihan’s and Montag’s involvement in the 
underlying events was superficial at best, and even though Plaintiffs have received 
or will receive discovery from 23 custodians, many of whom were actually involved 
in the decisions and actions that give rise to this litigation, which discovery has 
resulted in the production of more than 275,000 documents to date and already cost 
BANA more than $7 million in vendor costs alone.   
In this lawsuit, Plaintiffs challenge a short-lived BANA anti-fraud strategy that 
was used in connection with prepaid debit cards they received from BANA.  They 
also complain about the lack of EMV chip technology on their cards and about 
BANA’s customer service of their cards during the pandemic.  Plaintiffs already have 
ESI from BANA’s key decision makers on the relevant fraud strategy, EMV chip, 
and customer service issues that remain in their case, and data, metrics, and reports 
regarding the same.  They also have all the information BANA’s board and board 
committees received on these issues.  They even have documents provided to 
BANA’s regulators in response to regulatory investigations of these same issues.  
Plaintiffs have tried and failed to show that the ESI they seek from BANA’s top two 
executives is likely to contain “uniquely relevant information that is not available 
from the sources already designated.”  Order at 7, quoting In re Facebook, Inc. 
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Consumer Priv. User Profile Litig., No. 3:18-MD-02843-VC-JSC, 2021 WL 
10282213, at *1 (N.D. Cal. Nov. 14, 2021).  Instead, the documents they have 
assembled show, as one would expect given their roles, that Moynihan and Montag 
were sometimes briefed by others (custodians whose ESI Plaintiffs already have), 
and others (again, custodians whose ESI Plaintiffs already have) occasionally 
prepared talking points or materials (that Plaintiffs already have) for the top 
executives to read at board or board committee meetings (minutes of which Plaintiffs 
already have). 
Plaintiffs’ motivation in seeking discovery from Moynihan and Montag is 
transparent—they hope that the prospect of reviewing and producing emails from the 
company’s top executives will place pressure on BANA to settle.  Indeed, Plaintiffs’ 
counsel has already stated that such emails “resolve cases.  They settle cases.”1  This  
is why Plaintiffs claim to be unsatisfied with the discovery they already have from 
the custodians who briefed or prepared materials for Moynihan or Montag.  This is 
why they challenge Magistrate Judge Berg’s Order allowing them ESI from three 
other senior executives who were more involved than Moynihan and Montag, while 
simultaneously admitting that they would not have challenged a ruling that allowed 
three executives of their choosing.  It is clear that Plaintiffs would have made their 
choice not based on a custodian’s level of involvement, but rather on their level of 
seniority.   
Plaintiffs do not come close to showing that Magistrate Judge Berg committed 
“clear error” in denying this discovery, as Federal Rule of Civil Procedure 72(a) 
requires.  The Magistrate Judge properly recognized that where, as here, Plaintiffs 
have already received voluminous discovery, “district courts have broad discretion” 
to deny requests for more, including where the additional discovery sought is 
“unreasonably cumulative or duplicative.”  Order at 6, quoting Fed. R. Civ. P. 
 
1 Declaration of James W. McGarry ISO BANA’s Motion to Preclude Additional ESI 
Discovery, Dkt. 209-1, (“McGarry Decl.”), ¶ 10. 
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of 33

 
 
 
 
3 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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26(b)(2)(C).  The decision to limit discovery in these circumstances was correct, 
especially given the massive amount of discovery Plaintiffs have already received at 
great expense to BANA.  The decision is plainly within the broad discretion provided 
by the federal rules.  Plaintiffs’ motion to reverse should be denied.  
II. 
PROCEDURAL BACKGROUND 
A. 
The “Background” and “History of Discovery Dispute” Sections of 
Plaintiffs’ Brief Are Largely Irrelevant and Woefully Incomplete. 
Plaintiffs’ 25-page brief is made up of nearly 10 pages of purported 
“background” and a section titled “history of discovery dispute,” in order to, 
according to Plaintiffs, “place the current discovery dispute in context.”  
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, Filed 
Under Seal at Dkt. 278-1 (“Pls. Br.”), at 3 n.2.2 
Despite being mostly irrelevant to the instant discovery dispute, Plaintiffs’ 
recital is also incomplete.  BANA will provide a full explanation of the true 
“context,” Pls. Br. at 3 n.2, of this case at the appropriate time.  For purposes of 
responding to Plaintiffs’ motion, BANA includes the following information to 
correct some of the most glaring misstatements and omissions in Plaintiffs’ brief. 
1. 
Plaintiffs Ignore the Explosion of Pandemic Fraud That 
Precipitated the Development of the Fraud Filter. 
Plaintiffs’ brief neglects even to mention, let alone explain, the explosion of 
fraud that precipitated the development of the fraud filter that is the focus of this 
 
2 As stated, Plaintiffs’ instant brief is referred to herein as “Pls. Br.”  The parties’ 
prior briefs filed before Magistrate Judge Berg are referred to herein as follows:  
Defendant’s Memorandum of Points and Authorities in Support of Defendant’s 
Motion to Preclude Additional ESI Discovery, Dkt. 209, is “BANA Prior Br.”; 
Plaintiffs’ Opening Brief in Support of Motion to Compel Additional ESI 
Custodians, Filed Under Seal at Dkt. 212, is “Pls. Prior Br.”; Defendant’s 
Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion to 
Compel Additional ESI Custodians, Dkt. 214, is “BANA Prior Opp.”; and Plaintiffs’ 
Opposition to Defendant’s Motion to Preclude Additional ESI Discovery, Filed 
Under Seal at Dkt. 215, is “Pls. Prior Opp.” 
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2933     Page
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4 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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lawsuit.  This multi-district litigation arises from a massive surge in fraud targeting 
California’s unemployment benefits program during the COVID-19 pandemic.3   
In March 2020, the sudden onset of the pandemic drove the national economy 
from expansion to deep recession in the course of a single month.  The economic 
collapse required the federal and state governments to quickly make unemployment 
benefits available to large numbers of workers who were not previously eligible for 
benefits.  See Declaration of Yvonne Chan ISO BANA’s Opp. to Pls. Mot. for Prelim. 
Inj. (Yick v. Bank of America, N.A. et al., Case No. 3:21-cv-00376-VC (N.D. Cal.)) 
(Dkt. 72-1) (“Chan PI Opp. Decl.”), Ex. 1, at 1 (EDD News Release No. 21-05); id., 
Ex. 2, at 10 (PUA benefits available to “individuals who are ineligible under regular 
unemployment insurance, such as self-employed workers, or individuals who have 
exhausted regular unemployment benefits”).  The rapid and unexpected explosion of 
benefits claims exposed the system to massive fraud, and quickly overwhelmed the 
state agencies responsible for distributing benefits, including California’s 
Employment Development Department (“EDD”).  See, e.g., Chan PI Opp. Decl., Ex. 
4 (U.S. Dep’t of Labor UI Program Letter No. 28-20, dated August 31, 2020), at 1-
2; id., Ex. 5 (U.S. Secret Service Media Release on Cyber Fraud Task Force, dated 
July 9, 2020).  For example, as of January 2021, California estimated that its 
unemployment insurance program had incurred between $11.4 and $31 billion in 
fraud losses during the pandemic, and attributed 95% of it to the Pandemic 
Unemployment Assistance (“PUA”) program—“due to federal policymakers’ 
decision to prioritize immediate assistance,” and thus require a “lower standard of 
identity and wage information” from applicants.4   
 
3 See Patrick McGreevy, California unemployment fraud could top $9 billion, double 
previous 
estimate, 
expert 
warns, 
L.A. 
TIMES 
(Jan. 
15, 
2021), 
https://www.latimes.com/california/story/2021-01-15/unemployment-benefit-fraud-
california-billions-edd  (citing California State Auditor description of the “criminal 
assault on the benefits system”). 
4 California Legislative Analyst’s Office, Legislative Oversight of Ongoing 
Challenges at EDD, presented to California Assembly Budget Subcommittee No. 4 
on 
State 
Administration, 
at 
5 
(Jan. 
26, 
2021), 
available 
at 
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5 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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Since 2010, BANA has been the issuer of prepaid cards that most EDD 
benefits recipients elected to use to receive their benefits.  See Declaration of Robert 
Chestnut ISO BANA’s Opp. to Pls. Mot. for Prelim. Inj. (Yick v. Bank of America, 
N.A. et al., Case No. 3:21-cv-00376-VC (N.D. Cal.)) (Dkt. 72-25) (“Chestnut Decl.”) 
¶¶ 3; 5.  Once a benefits applicant was approved by EDD—a process conducted by 
EDD alone in which BANA had no input or involvement—BANA issued that EDD-
approved applicant a prepaid debit card through which EDD would distribute 
benefits.  Id.  Unfortunately, with the influx of millions of new applicants during the 
pandemic—many of whom self-certified their employment status and wages 
pursuant to the PUA—fraudsters quickly learned how to game EDD’s approval 
process.  See, e.g., Chan PI Opp. Decl., Ex. 4 at 1-2; id., Ex. 5.  So, in addition to the 
millions of legitimate benefits recipients that EDD rightly approved, BANA was 
forced to enroll and service prepaid debit cards for the well over one million 
fraudsters EDD wrongly approved and presented to BANA as legitimate benefits 
recipients.  See Declaration of Michael Letson ISO BANA’s Opp. to Pls. Mot. for 
Prelim. Inj. (Yick v. Bank of America, N.A. et al., Case No. 3:21-cv-00376-VC (N.D. 
Cal.)) (Dkt. 72-13) (“Letson Decl.”) ¶¶ 9–10.  Those illegitimate cardholders, whom 
BANA did not (and could not) independently verify, wreaked havoc:  Once they had 
absconded with EDD-supplied benefits to which they were not entitled, legions of 
fraudsters then falsely claimed to BANA that they themselves had been defrauded 
and their cards had been stolen or accounts taken over.  Id. ¶ 11.   
To address the increasing fraud, BANA took a number of significant steps.  
One of those steps was the creation and the implementation of the fraud filter that is 
the subject of this lawsuit.  The fraud filter was developed to investigate the barrage 
of account error claims that BANA received from prepaid cardholders in the early 
 
https://lao.ca.gov/handouts/state_admin/2021/EDD-Challenges-012621.pdf; 
see 
also Chan PI Opp. Decl., Ex. 1, at 2. 
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OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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pandemic period.5  Based on the knowledge of its fraud experts and observed 
patterns, BANA used the fraud filter to classify error claims based on indicators 
believed to correlate with an extremely high probability that the error claim involved 
a fraudulent card or cardholder, and then took actions, including the denial of the 
error claim as well as freezing or blocking the account, to prevent those suspicious 
accounts from being used to commit further fraud.  The fraud filter was used for less 
than a year—from late September 2020 until early June 2021.  See First Amended 
Master Consolidated Complaint, Dkt. 136 (“FAMCC”), ¶¶ 89-110. 
2. 
Plaintiffs Ignore That Little Remains of Their Case. 
Plaintiffs primarily allege that BANA should not have used the fraud filter to 
deny error claims or to freeze or block EDD prepaid accounts.  FAMCC, ¶¶ 89-96.  
Plaintiffs also allege that BANA’s failure to use EMV chip technology for EDD 
prepaid cards exposed their accounts to fraud and that BANA’s customer service was 
inadequate over the pandemic time period.  See id. ¶ 2.  Judge Burns’ May 25, 2023 
Order dismissed several of Plaintiffs’ causes of action.  See Dkt. 126 (“MTD Order”).  
And all legitimate Plaintiffs and putative class members, and likely many illegitimate 
Plaintiffs and putative class members, have already been compensated for the causes 
of action that remain pursuant to regulatory consent orders regarding the same issues. 
See Consent Order, In the Matter of Bank of Am., N.A., Consumer Financial 
Protection Bureau, No. 2022-CFPB-0004 (Jul. 14, 2022)  (“CFPB Consent Order”), 
Consent Order, In the Matter of Bank of Am., N.A., Office of the Comptroller of 
Currency, No. AA-ENF-2022-21 (Jul. 14, 2022) (“OCC Consent Order”).  For 
example, all legitimate, and likely many illegitimate, error claims denied after 
triggering the fraud filter have either been paid automatically without review, or were 
paid after a manual re-review by BANA.  Plaintiffs have also received additional 
compensation pursuant to the regulatory consent orders, and have been afforded the 
 
5 Error claims are reports from cardholders of account errors, such as an allegedly 
unauthorized ATM transaction.   
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7 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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opportunity to seek even further additional compensation based on their 
individualized circumstances.  See CFPB Consent Order at ¶¶ 87-89, OCC Consent 
Order at Art. IX.  Finally, Plaintiffs’ brief discusses at length the preliminary 
injunction entered in Yick v. Bank of America, N.A., No. 21-cv-00376-VC, but fails 
to explain how that injunction is remotely relevant to the demand for emails from 
BANA’s top executives, and further neglects to mention that the injunction will be 
dissolved by the time this motion is heard, at which point every single one of the 
EDD prepaid cards will be closed.  See Order Granting Motion to Dissolve 
Preliminary Injunction, Dkt. 255, (Apr. 3, 2024). 
B. 
BANA’s 
Discovery 
Efforts 
Have 
Been 
Substantial 
and 
Comprehensive. 
As Plaintiffs correctly note, Judge Burns ordered the parties to complete 
discovery pursuant to an expedited schedule.  Pls. Br. at 9.  In order to facilitate the 
compressed discovery schedule, Magistrate Judge Berg has been working closely 
with the parties over the past year to negotiate and resolve various discovery disputes, 
including disputes regarding written discovery, ESI custodians and search terms, and 
deposition scheduling, among other issues.  Declaration of Michelle L. Briggs ISO 
BANA’s Opp. to Objs. and Mot. to Rev. Discovery Order (“Briggs Decl.”) ¶¶ 4-5.   
Indeed, the parties have had 26 Informal Discovery Conferences (“IDCs”) and/or 
status conferences with Magistrate Judge Berg, occurring approximately every two 
weeks  since the MTD Order was issued on May 25, 2023, many of which have lasted 
several hours.  Id. ¶ 5. 
BANA has expended enormous resources to provide Plaintiffs with discovery 
pursuant to the expedited schedule set by Judge Burns.  On top of substantial pre-
motion-to-dismiss discovery, data compilations, targeted collections, board materials 
and materials provided to BANA’s regulators, ESI discovery has already been 
extensive.  With the assistance of Magistrate Judge Berg, the parties agreed that 
BANA would review and produce ESI from 20 custodians, spanning 9 functional 
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2937     Page
14 of 33

 
 
 
 
8 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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groups within BANA, and including the key decision makers on each of the fraud 
filter (9 custodians), EMV (8 custodians) and customer service and claims processing 
(4 custodians) issues in the case.  McGarry Decl. ¶ 4.  BANA reviewed more than 
765,000 documents and produced nearly 200,000 documents in two months, and 
more than 275,000 documents to date.  Id. ¶ 5; Briggs Decl. ¶¶ 6.  To do so, BANA 
enlisted more than 400 contract reviewers at a cost of more than $7 million, to say 
nothing of outside counsel expenses.  See Declaration of Dustin Anderson ISO  
BANA’s Motion to Preclude Additional ESI Discovery, Dkt. 209-2 ¶ 6; see also 
Declaration of Dustin Anderson ISO BANA’s Opp. to Objs. and Mot. to Rev. 
Discovery Order (“Anderson Decl.”) ¶ 5. 
Pursuant to Magistrate Judge Berg’s Order, BANA is also in the process of 
reviewing and producing ESI from three additional senior executive custodians, 
including BANA’s former Chief Operations and Technology Officer, Catherine 
Bessant, BANA’s President of Regional Banking, Dean Athanasia, and BANA’s 
Head of Client Services and Credit Assistance, Christine Channels.  See Order at 12.  
BANA estimates that vendor costs alone associated with Bessant, Athanasia, and 
Channels’ emails will be between $150,000 and $210,000, and that Moynihan and 
Montag’s emails would impose an additional $135,000 to $170,000 in vendor costs.  
Anderson Decl. ¶¶ 11-12.  These costs will vary greatly depending on how reasonably 
targeted the search parameters are, how responsive the documents are, how many 
documents require redactions, and how many documents will need to be logged for 
privilege.  Briggs Decl. ¶ 9.  Based on BANA’s preliminary review of Bessant, 
Athanasia, and Channels’ ESI identified by BANA’s reasonable search terms, BANA 
anticipates a smaller review population than for prior custodians—both due to de-
duplication and fewer documents identified by search terms—and fewer documents 
to redact and log for privilege than for prior custodians.  Id. ¶ 9.  BANA anticipates 
that the vast majority of ESI identified for review from these three executives is not 
relevant to the issues in this case.  Id. ¶ 10.  Accordingly, forcing BANA to review 
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9 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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tens of thousands of additional documents that are likely irrelevant to the allegations 
in this case is not proportionate to the needs of the case, especially considering the 
more than $7 million that BANA has already expended in discovery vendor costs 
alone.  See Anderson Decl. ¶ 11. 
Indeed, Plaintiffs seem to have realized that they asked for too much, and have 
resorted to interrogatories asking BANA to do their job for them and identify the 
documents in the production that are actually relevant to Plaintiffs’ case.  See 
McGarry Decl. ¶ 7 (Plaintiffs’ Interrogatory No. 24 asks BANA, among other things, 
to “IDENTIFY all DOCUMENTS” in its productions “that reference, reflect, or 
otherwise evidence any actions” or that “expressly reference” BANA’s “failure to 
take any actions . . . to test, ascertain, measure, or estimate the actual or likely 
accuracy, inaccuracy, effectiveness, or ineffectiveness of the CLAIM FRAUD 
FILTER and/or any [of] its criteria”). 
C. 
The Instant Discovery Dispute 
This is not Plaintiffs’ first attempt to get ESI discovery from Moynihan and 
Montag.  First, Plaintiffs filed an informal letter brief before Magistrate Judge Berg, 
and argued their request at an IDC on January 3, 2024.  Order at 1.  Plaintiffs’ 
informal letter brief sought ESI from Moynihan and Montag, as well as from six other 
custodians, including other executive custodians Bessant, Athanasia, and Channels.  
Id.  At the IDC, Magistrate Judge Berg indicated the Court would tentatively allow 
three more ESI custodians of Plaintiffs’ choosing.  Id.  Knowing that Plaintiffs would 
simply choose BANA’s top three executives, with no regard for whether or not those 
executives had any meaningful involvement in the issues of the case, BANA asked 
Magistrate Judge Berg for permission to formally brief the issue.  See id. at 2.   
Plaintiffs’ next attempt to get these emails was via a formal brief before 
Magistrate Judge Berg, see generally Pls. Prior Br., and a formal opposition to 
BANA’s corresponding formal brief, see generally Pls. Prior Opp.  See also Order 
at 2.  In the formal briefing, Plaintiffs put forward their best evidence to justify ESI 
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2939     Page
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10 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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collection from BANA’s top executives, including Moynihan and Montag.  BANA 
also filed formal briefing.  See generally, BANA Prior Br. and BANA Prior Opp.  
After considering the briefing and exhibits provided by the parties, Magistrate Judge 
Berg denied Plaintiffs’ request for ESI discovery from Moynihan and Montag, 
finding Plaintiffs had no persuasive response to BANA’s objections that relevant 
documents in these executives’ emails (if any) were highly likely to be cumulative 
of discovery Plaintiffs already have or will soon get.  Order at 2.  In contrast, 
Magistrate Judge Berg granted Plaintiffs’ request for ESI discovery from Bessant, 
Athanasia, and Channels, finding that—in contrast to Moynihan and Montag—the 
documents Plaintiffs identified regarding these three senior executives “support 
adding [them] as [] ESI custodian[s].”  Order at 10. 
Plaintiffs’ statement that they “would have accepted the tentative [IDC] ruling 
as a compromise,” and that they only “insisted on formally briefing the matter,” 
because BANA did as well, Pls. Br. at 12, belies their intent to use discovery as a 
means to harass.  Indeed, as stated, BANA’s insistence on formal briefing was exactly 
for this reason—given the option to choose ESI custodians, Plaintiffs would simply 
choose BANA’s highest level executives, regardless of their involvement (or lack 
thereof) in the issues of the case.  And Magistrate Judge Berg’s decision after formal 
briefing—which allowed Plaintiffs to add three executive ESI custodians—only 
confirms that neither Moynihan nor Montag are appropriate custodians here.  
Plaintiffs do not seek ESI from Moynihan or Montag because they likely have 
uniquely relevant information (they do not).  Plaintiffs want this discovery because, 
as Plaintiffs’ counsel told Magistrate Judge Berg, emails from top executives 
“resolve cases.  They settle cases.”  McGarry Decl. ¶ 10. 
III. 
LEGAL STANDARD 
A district court’s review of a magistrate judge’s non-dispositive discovery 
order under Federal Rule of Civil Procedure 72(a) is “significantly deferential,” and 
such a decision should be reversed only where the district court has a “definite and 
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OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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firm conviction that a mistake has been committed.”  Concrete Pipe & Prods. v. 
Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993).  Indeed, a non-dispositive 
discovery order should only be “modif[ied] or set aside” to the extent that it “‘is 
clearly erroneous or is contrary to law.’”  McAdam v. State Nat. Ins. Co., Inc., 15 F. 
Supp. 3d 1009, 1013 (S.D. Cal. 2014) (citing Computer Economics, Inc. v. Gartner 
Group, Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999)).  The “contrary to law” 
standard applies to a magistrate judge’s “purely legal determinations.”  Id.  The 
“clearly erroneous” standard applies to “factual determinations and discretionary 
decisions.”  Id., citing Concrete Pipe, 508 U.S. at 623. 
Federal Rule of Civil Procedure 26 contemplates “discovery regarding any 
nonprivileged matter that is relevant to any party’s claim or defense,” provided that 
such discovery is “proportional to the needs of the case, considering [among other 
things] whether the burden or expense of the proposed discovery outweighs its likely 
benefit.”  Fed. R. Civ. P. 26(b)(1).  Regardless of its broad nature, the relevance 
standard is not without “ultimate and necessary boundaries.”  In re Grant, No. 20-
cv-02465-DMS (JLB), 2021 WL 2895729, at *3 (S.D. Cal. July 9, 2021) (quoting 
Hickman v. Taylor, 329 U.S. 495, 501 (1947)).  Indeed, the 2015 amendments to Rule 
26 specifically added proportionality as a requirement for permissible discovery, in 
that relevancy alone is no longer sufficient—discovery must be proportional to the 
needs of the case.  See Loftis v. Ramos, No. 16-cv-2300-MMA (DHB), 2018 WL 
1444859, at *1 (S.D. Cal. Mar. 20, 2018).  Rule 26 further provides courts with broad 
discretion to limit even relevant discovery where “the discovery sought is 
unreasonably cumulative or duplicative.”  Fed. R. Civ. P. 26(b)(2)(C)(i); see also 
Laryngeal Mask Co. Ltd. v. Ambu A/S, No. 3:07-cv-01988 DMS NLS, 2009 WL 
10672436, at *4 (S.D. Cal. July 17, 2009) (Rule 26(b)(2) “requires that the court 
apply a benefits versus burden approach and ensure that the discovery is not 
unreasonably cumulative or duplicative.”); Coleman v. Dep’t of Healthcare Serv., 
No. 2:18-cv-02497 MCE AC, 2020 WL 589194, at *6 (E.D. Cal. Feb. 6, 2020) 
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OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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(same).   
Plaintiffs wrongly suggest that the “contrary to law” standard applies here.  Pls. 
Br. at 13, citing In re Qualcomm Litig., No. 17-cv-00108-GPC-MDD, 2018 WL 
6617294, at *3 (S.D. Cal. Dec. 18, 2018).  Nothing about the Order below is a “purely 
legal determination[],” id., such as was reviewed by this Court in Qualcomm.  Here, 
Plaintiffs challenge Magistrate Judge Berg’s determination that the additional 
discovery they want is not “proportional to the needs of the case,” because it is 
“unreasonably cumulative or duplicative,” a determination that is plainly within the 
“broad discretion” afforded to the Court.  Order at 6.  Therefore, this Court must 
affirm Magistrate Judge Berg’s Order unless it is ”clearly erroneous,” which, of 
course, it is not.  See McAdam, 15 F. Supp. 3d at 1013.  
IV. 
ARGUMENT 
A. 
Magistrate Judge Berg Applied the Correct Legal Standard. 
1. 
The “General Principles” Applied By Magistrate Judge Berg 
and the “Rule 26 Framework” Proffered by Plaintiffs Are the 
Same.  
As Magistrate Judge Berg noted, “[t]here is relatively limited legal authority 
on the standard a court should apply when addressing disputes about the designation 
of additional ESI custodians.”  Order at 7 (emphasis added), citing In re EpiPen 
(Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-md-
2785-DDC-TJJ, 2018 WL 1440923, at *2 (D. Kan. Mar. 15, 2018).  Thus, courts that 
have been confronted with this question have applied the “general principles” 
underlying Rule 26’s proportionality standard to hold that “the party seeking . . .  
additional custodians must show ‘that the disputed custodians possess uniquely 
relevant information that is not available from the sources already designated.”  Order 
at 7, quoting Facebook, 2021 WL 1282213, at *1. 
Plaintiffs argue that this is somehow different than the “framework” prescribed 
by Rule 26, Pls. Br. at 15, but it is not.  Plaintiffs argue that the standard applied by 
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CASE NO. 21-MD-02992-GPC-MSB 
 
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Magistrate Judge Berg improperly imposed on them “the initial burden” of showing 
that a proposed custodian has uniquely relevant information.  Id.  But Plaintiffs agree 
that Rule 26 itself places the “initial burden” on the party seeking discovery to 
“satisfy[y] the relevancy requirements of Rule 26(b)(1).”  Id. at 14, quoting 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).  And it is 
beyond dispute that every Rule 26 analysis necessarily includes a proportionality 
assessment—i.e., one of the “the relevancy requirements of Rule 26(b)(1)” is 
proportionality.  See Fed. R. Civ. P. 26(b)(1).  Magistrate Judge Berg was therefore 
exactly correct to determine, as did the district court in In re Facebook, that in cases 
(like this one) where discovery has already been extensive, proportionality requires 
consideration of whether the additional requested discovery is likely to be “uniquely 
relevant information” compared to what has already been produced.  Order at 7, 
quoting In re Facebook Litig., 2021 WL 10282213, at *1.   
In any event, Plaintiffs’ complaint that Magistrate Judge Berg failed to hold 
BANA to its burden is easily dismissed.  Plaintiffs say that if they show the 
information they seek is relevant, BANA then has the “burden to show discovery 
should not be allowed [by] clarifying, explaining, and supporting its objections.”  Pls. 
Br. at 14, quoting Williams & Cochrane, 2020 WL 274246, at *1.  Here, Plaintiffs 
sought ESI discovery from Moynihan and Montag, and had the initial burden of 
showing why these custodians were likely to have information relevant to the case.  
BANA objected, “clarifying” and “explaining” that even if Moynihan or Montag 
have relevant documents, their ESI discovery is not proportional to the needs of this 
case because it is highly likely to be cumulative and duplicative of what Plaintiffs 
already have, which objections BANA “support[ed]” by explaining why Plaintiffs’ 
proffered documents do not justify the ESI they seek.  See generally BANA Prior Br. 
and BANA Prior Opp.  The fact that Magistrate Judge Berg found BANA’s 
objections compelling is in no way evidence that he applied the wrong standard.  See 
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CASE NO. 21-MD-02992-GPC-MSB 
 
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Order at 8 (finding “BANA has sufficiently explained and supported its objections to 
adding Moynihan as an ESI custodian”); id. at 9 (same for Montag).      
Plaintiffs’ argument that other courts “grant requests to compel additional ESI 
custodians—including CEOs and other senior executives—under this well-
established Rule 26 standard,” Pls. Br. at 14, is inapposite.  The fact that other courts 
have found that other litigants have satisfied the standard, while Magistrate Judge 
Berg found Plaintiffs here failed to overcome BANA’s objections, is totally 
irrelevant to whether Magistrate Judge Berg applied the correct standard.  (He did.)  
And each of Plaintiffs’ cases is easily distinguishable from this one.  For example, in 
Henriquez v. Cemez, Inc., No. 22-cv-1645-JGB-SP, 2024 WL 1600663 (C.D. Cal. 
Jan. 18, 2024), the defendant had made “no showing” to support its objections that 
the requested custodians would be cumulative of ESI already provided.  Id. at *4.  
Likewise, in Rosales v. FitFlop USA, No. 11-cv-0973-W(KSC), 2012 WL 13176110 
(S.D. Cal. Dec. 10, 2012), the defendant’s objection was limited to the unsupported 
statement that it “[did] not believe the [additional ESI discovery] is reasonably 
calculated to lead to the discovery of admissible evidence.”  Id. at *7.  And in SPS 
Techs., LLC v. Briles Aerospace, Inc., No. 18-cv-9536-MWF (ASx), 2019 WL 
13108021 (C.D. Cal. June 25, 2019), there was an insufficient showing that the 
discovery sought was cumulative or duplicative, and no evidence at all regarding the 
burden associated with collection.  Id. at *1. 
Plaintiffs’ out-of-circuit cases, from district courts in Tennessee, Maine, and 
West Virginia, are likewise inapposite.  In In re Envision Healthcare Corp. Sec. 
Litig., No. 17-cv-1112, 2020 WL 6750397 (M.D. Tenn. Nov. 16, 2020), the 
defendants failed to provide any estimates of time or cost associated with the 
proposed additional discovery, so they failed to substantiate their burden objections.  
Id. at *6.  In MariCal, Inc. v. Cooke Aquaculture, Inc., No. 14-cv-0366-JDL, 2016 
WL 9459260 (D. Me. Aug. 9, 2016), the court allowed discovery because the 
plaintiffs did show that the CEO’s ESI likely contained uniquely relevant 
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OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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information.  Id. at *2.  Likewise, in Mt. Hawley Ins. Co. v. Felman Prod., Inc., 269 
F.R.D. 609 (S.D. W. Va. 2010), the court was persuaded by the plaintiff’s evidence 
that the requested executive custodians were “intimately involved” in relevant 
decision making and “significantly involved” in the litigation.  Id. at 617.   
In contrast to Plaintiffs’ cited cases, BANA has substantiated its objection that 
relevant documents from Moynihan and Montag (if any) are highly likely to be 
duplicative by demonstrating that Moynihan and Montag only had “basic” or 
“general awareness” of the prepaid card program and were not decision makers on 
key issues related to the program, and that Plaintiffs already have ESI from several 
other custodians who were involved and were key decision makers.  Order at 5, 8, 9; 
see also generally BANA Prior Br., BANA Prior Opp. and § IV.B. infra.  Also unlike 
the cases Plaintiffs rely on, BANA has substantiated its burden objections by 
providing evidence of the discovery costs incurred so far, and an estimate that vendor 
costs alone for the additional executive custodians would be between $135,000 and 
$170,000.  See Order at 5; see also Anderson Decl. ¶ 12.  Magistrate Judge Berg was 
correct in assessing the evidence and determining that Moynihan and Montag did not 
have uniquely relevant information not available from already-designated sources, 
such that there was good cause to exclude both as additional custodians. 
2. 
The “Apex Doctrine” Was Not Applied. 
Related to Plaintiffs’ argument that Magistrate Judge Berg somehow required 
them to satisfy a “heightened” standard (he did not, for the reasons stated above), is 
Plaintiffs’ even more easily rejected argument that Magistrate Judge Berg 
“effectively” applied the “apex doctrine standard” in denying their requests.  Pls. Br. 
at 15.  As an instant matter, Magistrate Judge Berg explicitly stated that he was not 
applying the apex doctrine, and that cases relying on it were inapplicable to his 
determination.  Order at 5 n.3.   
Plaintiffs’ contention that Magistrate Judge Berg said the apex doctrine was 
inapplicable, but nonetheless applied a standard “indistinguishable from the apex 
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CASE NO. 21-MD-02992-GPC-MSB 
 
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doctrine standard,” Ps. Br. at 16, also fails.  As Plaintiffs themselves state, the apex 
doctrine protects high-level executives from deposition unless the party seeking the 
deposition can show 1) that the executive “has unique first-hand, non-repetitive 
knowledge of the facts at issue in the case,” and 2) that the party seeking the 
deposition “has exhausted less intrusive discovery methods.”  Pls. Br. at 15.  
Nowhere in the Order does Magistrate Judge Berg consider whether Plaintiffs made 
any showing regarding their efforts to procure less intrusive discovery, which he 
would have had to have done if he was applying the apex doctrine.   Indeed, the court 
in In re Facebook applied the correct proportionality standard used here—i.e., that 
“the party seeking additional custodians [must] show that the disputed custodians 
possess uniquely relevant information that is not available from the sources already 
designated” while also holding the that apex doctrine was inapt.  See In re Facebook 
Litig., 2021 WL 10282213, at *10 (“The apex doctrine does not apply to this dispute, 
which concerns whether senior executives . . . should be added as document 
custodians.”).  This underscores that the standard applied here is governed by the 
“Rule 26 framework” Plaintiffs agree should be applied, and Plaintiffs’ repeated 
references to the apex doctrine and cases applying it are an obvious smokescreen.6 
Finally, Plaintiffs argue that “[t]he Court should review the evidence de novo” 
because Magistrate Judge Berg’s “application” of the apex doctrine is “contrary to 
law.”  Pls. Br. at 17.  This argument fails.  As explained above, Magistrate Judge 
Berg applied the appropriate legal standard prescribed by Rule 26, not the apex 
doctrine standard, and not some other “heightened” standard.  Therefore, this Court 
should affirm Magistrate Judge Berg’s Order unless his factual determinations were 
“clearly erroneous.”  As explained below, they were not.    
 
6 Indeed, Plaintiffs’ observation that Magistrate Judge Berg applied the same analysis 
not only to “apex” custodians, but to all custodians, Pls. Br. at 17, further confirms 
that Magistrate Judge Berg was not applying the apex doctrine. 
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OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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B. 
Magistrate Judge Berg Correctly Found that Neither Moynihan 
Nor Montag is Likely to Possess Uniquely Relevant Information. 
Plaintiffs’ brief relies on three dozen documents that they say justify ESI 
collection from Moynihan and Montag.  Pls. Br. at 2, 9 n.8.  At most, Plaintiffs’ 
documents show that Moynihan and Montag could have some relevant documents.  
But this is not enough.  As Magistrate Judge Berg recognized, Plaintiffs already have 
extensive discovery.  They will also soon receive ESI discovery from three additional 
high-level executives, bringing the total number of custodians to 23, including 
numerous senior executives.  In order to overcome BANA’s objections and justify 
more, they must show that the additional discovery they seek is likely to be unique 
as compared to the hundreds of thousands of documents that they already have or 
will soon get.  Order at 8–9, citing In re Facebook Litig., 2021 WL 10282213, at *1.  
They cannot do it.7 
1. 
Magistrate Judge Berg Correctly Denied Plaintiffs’ Request 
for ESI from Moynihan. 
Magistrate Judge Berg correctly found that the documents cited in Plaintiffs’ 
original brief do not show that Moynihan is likely to have unique documents 
 
7 Plaintiffs’ instant brief relies primarily on a dozen documents that were not 
presented to Magistrate Judge Berg.  See Pls. Br. at 2, Index of Exhibits to Supp. 
Decl. of Connie K. Chan (“Supp. Index”) (identifying Exs. 24-36).  Each of these 
“new” documents were produced more than a month before Plaintiffs filed their prior 
opening brief, and more than six weeks before Plaintiffs filed their prior opposition 
brief.  See Supp. Index (“Date Produced” for each of Exs. 24-36 ranges from October 
23, 2023 through December 22, 2023, with the vast majority of documents produced 
before the first week of December).  As Magistrate Judge Berg correctly noted, 
Plaintiffs waited until briefing had been “closed for nearly three weeks” to ask the 
Court to consider the additional materials without providing any reason for the delay.  
See Supp. Index, Ex. 37.  Even now, Plaintiffs say only that they “filed their motion 
to compel before they could review” the proffered documents.  Pls. Br. at 2.  As such, 
it was entirely appropriate for Magistrate Judge Berg to decline to consider Plaintiffs’ 
late evidence.  See Cusano v. Klein, 264 F.3d 936, 950-51 (9th Cir. 2001) (the court, 
in its discretion, may refuse to consider matters not timely filed).  In any event, the 
additional documents Plaintiffs focus their current arguments on are no different in 
kind than the documents that Magistrate Judge Berg considered, and rejected, as 
supporting Plaintiffs’ entitlement to the ESI they seek.  See §§ IV.B.1 and IV.B.2, 
infra. 
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18 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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compared to what Plaintiffs already have.  Order at 8.  This finding is buttressed by 
the fact that Plaintiffs will soon receive ESI discovery from executive custodians 
Bessant, Athanasia, and Channels.  Order at 12.  With respect to these documents, 
Plaintiffs’ current brief makes the same arguments considered and rejected by 
Magistrate Judge Berg, and their arguments to reverse the prior decision are 
unavailing. 
First, relying on Exs. 1 (-6092), 10 (-6000), 11 (-6010), and 12 (-6058), 
Plaintiffs argued to Magistrate Judge Berg that Moynihan has relevant and unique 
knowledge about the issues in this case because he prepared memoranda and 
presented on key issues at board meetings.  Order at 7, citing Pls. Prior Br. at 4-6 and 
Pls. Prior Opp. at 2.  Plaintiffs make the same argument about these documents again 
here.  See Pls. Br. at 20-21.  Magistrate Judge Berg correctly rejected this argument.  
Plaintiffs already have all board and board committee materials related to the fraud 
filter, EMV and customer services issues in this case.  Order at 8.  The fact that 
Moynihan presented to the board on these issues is insufficient to justify collection 
of his ESI when the board materials have already been produced.  Plaintiffs say that 
Magistrate Judge Berg imposed an inappropriately “onerous” standard on them in 
rejecting these arguments.  See Pls. Br. at 20.  Not so.  Plaintiffs say that Magistrate 
Judge Berg erred because “Moynihan’s notes and memoranda are evidence of what 
was told to the Board,” Pls. Br. at 20, but this argument falls flat where Plaintiffs 
already have all the relevant board materials, which plainly reflect “what was told to 
the Board” about the issues Plaintiffs are concerned about.  Moreover, Plaintiffs’ 
reliance on Shenwick v. Twitter, Inc. in support of their argument here is misplaced.  
See Pls. Br. at 20.  Shenwick is a securities class action in which the executive 
personally made the corrective public disclosure, so of course his knowledge was 
relevant to falsity.  2018 WL 833085, at *1 (N.D. Cal. Feb. 7, 2018).  Conversely, 
here, Plaintiffs challenge a product overseen by and decisions made by existing 
custodians.  Moynihan’s involvement—at best—is limited to the receipt of 
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19 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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information from others. 
Second, relying on Exs. 4 (-8379), 7 (-3818), and 12 (-6058), Plaintiffs argued 
that Moynihan personally authorized freezing EDD prepaid cards, and that Moynihan 
and other executives directed changes to BANA’s claims-processing procedures.  
Order at 7-8, citing Pls. Prior Br. at 4-6 and Pls. Prior Opp. at 2.  Here, Magistrate 
Judge Berg correctly held that Plaintiffs mischaracterized these documents, 
particularly Ex. 7.  Contrary to Plaintiffs’ claims, this document “merely reveals that 
a BANA employee asked whether Moynihan approved moving forward” with 
freezing cards, and the response “does not indicate who approved the freezing, let 
alone if Moynihan did so.”  Order at 8.  Plaintiffs already have ESI from nine 
custodians involved in account freezing.  Id.  This document does not support 
anything more.  Plaintiffs’ instant brief makes the same arguments about this 
document that were considered and rejected by Magistrate Judge Berg.  See Pls. Br. 
at 19.  Again, Plaintiffs’ suggestion that the Magistrate Judge’s analysis of this 
document imposed on them “a burden even more onerous than the already heightened 
apex deposition standard,” Pls. Br. at 20, fails.  Plaintiffs suggest that Magistrate 
Judge Berg denied them ESI from Moynihan simply because Ex. 7 does not establish 
that Moynihan approved the referenced freezes.  Pls. Br. at 19-20.  But that is not 
what the Order says:  the Order plainly states that where 1) Exhibit 7 does not show 
that Moynihan approved freezes, and 2) Plaintiffs already have ESI from nine 
custodians on the issue of account freezing, based on those two facts together, 
Plaintiffs cannot show, as they must, that the discovery they seek from Moynihan is 
not highly likely to be cumulative of what they already have.  See Order at 8. 
The “new” documents that Plaintiffs cite in their instant motion are no 
different, and do not help them.  First, Plaintiffs’ Ex. 24 (-9896) is a request by an 
existing custodian (Garfield) for prepaid fraud data that another other existing 
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20 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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custodian (Ahmad) wanted in order to prepare a presentation for Moynihan.8  At 
most, this email shows that Moynihan received updates on the prepaid fraud 
situation, which is not enough to support collection of his ESI, particularly where the 
update was prepared and provided by existing custodians.  Plaintiffs’ Exs. 27 and 28 
(-2012, -1247) are the same, reflecting only that Moynihan was “briefed” on (Ex. 27) 
and “socialized” on (Ex. 28) prepaid fraud and the losses associated with that fraud 
by a host of existing custodians.  Ex. 27 reflects involvement by an existing custodian 
(Ahmad), and two additional executive custodians whose ESI Plaintiffs will soon 
receive (Athanasia, Channels).  Ex. 28 reflects involvement by five existing 
custodians (Ahmad, Fox, Letson, Garfield, and Simpson).  These documents make 
clear that all substantive information about the issues in this case originated with 
custodians whose ESI Plaintiffs already have.  Nothing in these documents suggests 
that Moynihan has “uniquely relevant information” that is “not [already] available 
[to Plaintiffs] from the sources already designated.”  In re Facebook Litig., 2021 WL 
10282213, at *1. 
Finally, Plaintiffs point to Exs. 29-33 (-0516, -5863, -0351, -8602, and excerpt 
from Letson deposition), which they say indicate that BANA’s management team 
(i.e., the “MTM”) met to discuss the fraud filter.  Pls. Br. at 19.  But Plaintiffs offer 
zero evidence that Moynihan attended the meeting.  Rather, Plaintiffs’ documents, 
again, show that they already have ESI for the people responsible for developing and 
implementing the fraud filter and that they already have ESI for multiple members 
of the MTM.  See, e.g., Ex. 29 (existing custodians Letson, Holt, and Garfield 
involved in development of filter indicators and presentation of same to MTM); 
Ex. 30 (same, for Letson and Holt); Ex. 31 (same, for Letson and Fox), Ex. 32 
 
8 Ex. 24 further demonstrates that Plaintiffs’ claims that Moynihan has uniquely 
relevant information are specious.  Ex. 24 indicates that another BANA executive, 
Paul Donofrio, intended to brief Moynihan on prepaid fraud statistics.  But Plaintiffs 
do not seek Donofrio’s emails (the purported brief-er), just Moynihan’s (the 
purported brief-ee).  Again, this reveals that their goal here is not discovery of 
relevant documents; rather, it is the harassment of BANA’s most senior executives. 
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21 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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(agenda and materials for MTM meeting sent to agreed custodians and MTM 
members Bessant and Athanasia, and existing custodian and MTM member O’Neill), 
and Ex. 33 (deposition testimony from existing custodian Letson that fraud filter was 
approved by MTM).  These documents in no way indicate that Moynihan is likely to 
have “uniquely relevant” information about Plaintiffs’ case. 
2. 
Magistrate Judge Berg Correctly Denied Plaintiffs’ Request 
for ESI from Montag. 
Magistrate Judge Berg also correctly rejected Plaintiffs’ request for ESI from 
Montag because Plaintiffs’ purported “evidence” here also showed that “Montag is 
unlikely to possess unique information that cannot be found from existing ESI 
custodians.”  Order at 9, citing In re Facebook Litig., 2021 WL 10282213, at *1.  
Again, this is all the more true in light of the fact that Plaintiffs will soon receive ESI 
from Bessant, Athanasia, and Channels.   
Plaintiffs previously said Exs. 3 (-8366), 5 (-1860), and 14 (-1972)—“emails 
that were either sent to Montag or mention him directly,” Order at 9—show that 
Montag was “‘not merely aware of but [was] driving the key issues’ involved in this 
case.”  Id., quoting Pls. Prior Opp. at 2.  But, as with the Moynihan documents, 
Magistrate Judge Berg correctly found Plaintiffs’ characterization of these 
documents to be misleading, and that “BANA has sufficiently explained and 
supported its objections to adding Montag as an ESI custodian.”  Order at 9, citing 
Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009).  
Indeed, Plaintiffs’ instant brief makes no argument at all with respect to these 
documents, let alone a compelling argument for why Magistrate Judge Berg’s 
analysis was “clearly erroneous.” 
First, Magistrate Judge Berg found that Ex. 3 (-8366) shows that “when a 
question was raised about the amount of potential operational losses related to 
prepaid claims fraud, Montag and Athanasia reached out to another offered 
custodian, Christine Channels, and an existing custodian, Jennifer Ehresman, to 
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22 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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obtain the relevant information.”  Order at 9, citing BANA Prior Br. at 10.  Plaintiffs’ 
prior argument that this document suggests Montag has unique knowledge is further 
undermined by the fact that they will soon receive ESI from both Athanasia and 
Channels.  Second, Magistrate Judge Berg found that Ex. 5 (-1860) shows that while 
“Montag’s approval may have been required for a new contract related to call center 
services,” nothing in this document suggests he was involved in negotiating the 
details of the contract to indicate he would have unique knowledge.  Order at 9.  
Finally, Magistrate Judge Berg found that Ex. 14 (-1972) shows only that “Montag 
asked questions” about “‘pre-paid fraud losses,’” which “does not demonstrate 
Montag possesses uniquely relevant information that cannot be obtained from 
existing sources.”  Order at 9.  In the absence of any serious challenge from Plaintiffs 
as to Magistrate Judge Berg’s analysis of these documents, the Order below should 
stand. 
As with Moynihan, the “new” documents that Plaintiffs rely on for Montag do 
not help them.  First, Plaintiffs say Exs. 25 (-1977) and 26 (-4889) show that “Montag 
had [] communications” that “are unique to Montag.”  Pls. Br. at 22.  But both of 
these emails show that Montag’s communications about the issues in this case 
involved multiple existing custodians.  For example, Ex. 25 involves two managers 
who were responsible for the prepaid business (Ahmad and Lawlor), who are both 
existing custodians.  It also reflects that, as of the date of the email, September 21, 
2020—only one week before the fraud filter was implemented—Montag was not 
involved, and had only high level awareness of the prepaid issues in this case.  Ex. 26 
is even less helpful to Plaintiffs.  This email shows only that an existing custodian 
(Lawlor) said “[a] lot of people are talking to Tom.”  But it does not identify 1) who 
“Tom” is, 2) who the “people” are that are supposedly talking to “Tom,” or 3) what 
they are saying.  Without more, this email does nothing to support Plaintiffs’ 
argument that Montag has unique information about this case.   
Next, Plaintiffs say Ex. 28 (-1427) makes it “apparent that Montag was often 
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23 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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the intermediary between mid-level executives and Moynihan.”  Pls. Br. at 23.  But 
Plaintiffs mislead again.  That the top executives were only involved in the issues of 
this case at the highest level is plain from the face of this document.  The email, as 
explained above, was sent to five existing custodians (Ahmad, Fox, Letson, Garfield, 
and Simpson).  It states that prepaid fraud was continuing to grow and identifies 
several individuals involved in scoping the problem, including three existing 
custodians (Garfield, Simpson, Ahmad).  It then states—about the scoping issue 
only—that Simpson and Ahmad had met with Montag who had “socialized” the fraud 
impact with Moynihan.  The document then contains several detailed paragraphs 
explaining the work that internal BANA teams (many led by existing custodians) 
were doing to work with the state benefits agencies, as well as different fraud 
strategies being considered to slow the fraud.  There is no mention of either Montag 
or Moynihan in this detailed section of the document, and no reason to believe either 
was aware of anything other than the volume of fraud losses at the highest level.  It 
certainly does not show that Montag has “uniquely relevant information that cannot 
be obtained from existing sources.”  Order at 9. 
Finally, Plaintiffs point to Exs. 34 (-7802) and 35 (-0141), saying that these 
documents “show Montag was a member” of certain committees involved in the 
approval and implementation of the fraud filter.  Pls. Br. at 23.  But Plaintiffs already 
have or will soon have ESI from more than a half-dozen members of the two 
committees at issue or other attendees of the meetings these documents reference 
(Ahmad, Simpon, Channels, Ehresman, Fox, Garfield, Lawlor).  Ex. 34, minutes 
from a committee meeting, clearly indicates that the only two people to make 
presentations at this meeting (Ahmad and Fox) are custodians whose ESI Plaintiffs 
already have, and there is nothing in the minutes to suggest that Montag said or did 
anything.  And Ex. 35 is Plaintiffs’ weakest connection yet between the executives 
whose ESI they seek and the issues of this case.  It is an email string that neither 
involves Montag, nor mentions him by name, and clearly states that custodians whose 
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24 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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ESI Plaintiffs already have (Gargaliano, Ehresman) and their teams “have been the 
principal inputs into the deck.”  Indeed, the only purported connection to the 
executives is a reference to an unspecified “set of items for MTM members to 
decision.”  Nothing here suggests Montag has unique information. 
C. 
Magistrate 
Judge 
Berg 
Correctly 
Rejected 
Plaintiffs’ 
Proportionality Arguments. 
Finally, Plaintiffs contend the Order failed to address the proportionality 
factors under Rule 26(b)(1).  Pls. Br. at 23-24.  This is plainly incorrect.  The entirety 
of Magistrate Judge Berg’s Order is an analysis of whether the ESI Plaintiffs seek is 
proportional to the needs of the case.  See, e.g., Order at 4, 6, 12.  Moreover, 
Plaintiffs’ instant brief makes the same arguments that have already been presented 
to, and rejected by, Magistrate Judge Berg.  Plaintiffs again raise that the requested 
discovery is proportional given the importance of the issues and amount in 
controversy, and that BANA is “well-resourced” and is the only one that has access 
to the documents requested.  Compare Pls. Br. at 23-25 with Pls. Prior Br. at 6-7 and 
Pls. Prior Opp. at 3.  But yet again, Plaintiffs cited nothing to support their claim that 
the ESI sought is “critical” to key issues such as “the Bank’s reasons for 
implementing [the fraud filter] and its knowledge of [its] impact . . . on innocent 
cardholders” or that the requested custodians have information that would bear on 
the “reasons” for the fraud filter or “knowledge of [its] impact.”  See BANA Prior 
Opp. at 3.  In the absence of any new arguments there is no basis for this Court to 
conclude that Magistrate Judge Berg’s resolution was “clearly erroneous.” 
V. 
CONCLUSION 
For the foregoing reasons, BANA respectfully requests that the Court deny 
Plaintiffs’ motion to reverse in part Magistrate Judge Berg’s April 24, 2024 
Discovery Order. 
 
 
Dated:   May 31, 2024 
Respectfully submitted, 
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2954     Page
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OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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By: /s/ James W. McGarry 
 
  
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA  02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
 
THOMAS M. HEFFERON (pro hac vice) 
THefferon@goodwinlaw.com 
SABRINA M. ROSE-SMITH (pro hac vice) 
SRoseSmith@goodwinlaw.com 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N St. NW  
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444 
 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA  02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
 
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
MATTHEW B. NAZARETH (SBN 
278405) 
mnazareth@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650 
San Diego, CA 92101 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2955     Page
32 of 33

 
 
 
 
26 
OPP. TO OBJS. AND MOT. TO REV. DISCOVERY ORDER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on May 31, 2024.  I further certify that all participants in 
the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system. I certify under penalty of perjury that the foregoing is true and 
correct. 
 
 
 
Executed: 
May 31, 2024 
 
/s/ James W. McGarry 
 
 
 
 
 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 287     Filed 05/31/24     PageID.2956     Page
33 of 33

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