Reply to Response to Motion re 278 Motion for Order Redacted Reply — In re BofA Unemployment Litigation (Dkt. 292)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 292 · 2024-07-19 · Docket on CourtListener

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REPLY 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 
 
REPLY 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 (2nd floor) 
 
REDACTED VERSION FOR 
PUBLIC FILING 
 
 
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TABLE OF CONTENTS 
TABLE OF AUTHORITIES .................................................................................... ii 
I. 
INTRODUCTION .......................................................................................... 1 
II. 
ARGUMENT .................................................................................................. 2 
A. The Discovery Order Fails to Apply or Misapplies Rule 26. .................... 2 
B. The Portion of the Discovery Order Denying Plaintiffs’ Motion to  
Compel Moynihan’s and Montag’s Documents Must Be Reversed. ........ 4 
1. Moynihan and Montag Are Key Decision-Makers Likely to  
Have Highly Relevant and Unique Documents Bearing on  
the Bank’s Reasons for Implementing the Claim Fraud Filter. ....... 4 
2. The Maximal Relevance of Moynihan’s and Montag’s  
Documents to the Central Issues in the Case Far  
Outweighs the Minimal Burden of Producing Their  
Non-Duplicative Documents. .......................................................... 7 
III. 
CONCLUSION ............................................................................................. 10 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Federal Cases 
Apple Inc. v. Samsung Elecs. Co., 
282 F.R.D. 259 (N.D. Cal. 2012) ......................................................................... 3 
Blankenship v. Fox News Network, LLC, 
No. 2:19-CV-00236, 2021 WL 2345972 (S.D. W. Va. June 8, 2021) ................. 3 
Blankenship v. Hearst Corp., 
519 F.2d 418 (9th Cir. 1975) ........................................................................... 2, 5 
Cohen v. Trump, 
Nos. 13-cv-2519-GPC-WVG, 10-cv-0940-GPC-WVG, 2015 WL 
3966140 (S.D. Cal. June 30, 2015) .................................................................. 2, 4 
Dang v. Cross, 
422 F.3d 800 (9th Cir. 2005) ............................................................................... 8 
Goro v. Flowers Foods Inc., 
334 F.R.D. 275 (S.D. Cal. 2018) ......................................................................... 5 
Harris v. Union Pac. R.R. Co., 
No. 8:16-cv-381, 2018 WL 2729131 (D. Neb. June 6, 2018) ............................. 3 
Laryngeal Mask Co. Ltd. v. Ambu A/S, 
No. 3:07-cv-01988 DMS-NLS, (S.D. Cal. July 17, 2009) ............................. 5, 10 
Lutzeier v. Citigroup Inc., 
No. 14-cv-00183-RLW, 2015 WL 430196 (E.D. Mo. Feb. 2, 2015) .................. 3 
Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., 
322 F.R.D. 1 (D.D.C. 2017) ....................................................................... 8, 9, 10 
Shenwick v. Twitter, 
No. 16-cv-05214, 2018 WL 833085 (N.D. Cal. Feb. 7, 2018) ............................ 6 
Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 
203 F.R.D. 98 (S.D.N.Y. 2001) ........................................................................... 5 
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SPS Techs., LLC v. Briles Aerospace, Inc., 
No. 18-cv-9536-MWF, 2019 WL 13108021 (C.D. Cal. June 25, 
2019) .................................................................................................................... 9 
Williams v. Apple, Inc., 
No. 19-cv-04700-LHK-VKD, 2020 WL 5107639 (N.D. Cal. Aug. 
31, 2020) .............................................................................................................. 9 
Federal Statutes 
15 U.S.C. 
§1693f(e)(2) ..................................................................................................... 1, 9 
California Statutes 
Cal. Civ. Code 
§3294(b) ........................................................................................................... 1, 9 
Rules 
Fed. R. Civ. P.  
Rule 26 ........................................................................................................ passim 
Rule 26(b)(1) .................................................................................................... 1, 2 
 
2015 Cmte. Notes. ................................................................................................ 2 
 
 
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REPLY ISO PLS.’ OBJECTIONS TO & MOTION TO REVERSE IN PART 
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I. 
INTRODUCTION 
This dispute over two ESI custodians, Moynihan and Montag (“Custodians”), is 
governed by Rule 26(b)(1)’s dual requirements of relevance and proportionality. Judge 
Berg found that these Custodians likely possess relevant documents. But then, instead 
of conducting the required proportionality analysis, he turned to the irrelevant issue of 
whether there was sufficient evidence that the Custodians possess “‘uniquely relevant 
information that is not available from the sources already designated.’” ECF 268 at 8-9. 
That is the “apex” standard for determining whether to compel an executive’s 
deposition; it has no application to the far less burdensome task of collecting relevant 
documents in response to a request for production. Because Judge Berg failed to 
conduct the required Rule 26 analysis, and because the Custodians’ documents are not 
just proportional but critical to the needs of the case, the Discovery Order should be 
reversed and the Bank should be ordered to produce the Custodians’ ESI. 
The Bank’s factual exegesis entirely ignores why the Custodians’ documents are 
likely to prove critical—a key consideration in assessing proportionality. At this point 
in the case, following the Preliminary Injunction and the Bank’s payment of restitution 
under the Remediation Plan, many of the basic facts and the Bank’s EFTA liability are 
not seriously in dispute. The real question now is whether the Bank is subject to 
hundreds of millions of dollars in treble damages under EFTA—a valuation the Bank 
does not dispute—and potentially even more in punitive damages under several other 
claims. Because one basis for EFTA treble damages turns on whether the Bank’s 
conduct was knowing and willful, 15 U.S.C. §1693f(e)(2), and because punitive 
damages turn on the motives and intent of an “officer, director, or managing agent,” 
Cal. Civ. Code §3294(b), evidence showing what the Custodians knew about the Claim 
Fraud Filter (“CFF”) and its actual and foreseeable impacts on legitimate EDD 
cardholders, and which of the challenged Bank policies they directed, authorized, or 
ratified and why, are critical to that inquiry. That is why documents they prepared, 
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reviewed, and approved are not just proportionate, but essential to the needs of the 
case. Those needs dwarf the Bank’s minimal incremental costs of production, which 
the Bank now admits are likely only 25% of what it estimated to Judge Berg. 
II. 
ARGUMENT 
A. The Discovery Order Fails to Apply or Misapplies Rule 26. 
The Bank now concedes that Rule 26 sets forth the applicable standard (Opp. 12), 
despite having previously advocated for a heightened “key decision maker” standard 
for executive custodians (ECF 209 at 3-4). Because the Discovery Order failed to apply 
or misapplied Rule 26 to Plaintiffs’ motion to compel, it is “contrary to law” and must 
be reviewed de novo. See Mot. 12:27-18:1; Cohen v. Trump, Nos. 13-cv-2519-GPC-
WVG, 10-cv-0940-GPC-WVG, 2015 WL 3966140, at *7 (S.D. Cal. June 30, 2015) 
(reversing magistrate judge discovery order as contrary to law).  
The Bank tries to avoid de novo review by asserting that the Order actually 
applied the relevance-and-proportionality standard rather than the heightened apex-
deposition standard. That assertion is easily refuted. Under Rule 26, once the moving 
party shows that the requested discovery is “relevant to any party’s claim or defense,” 
Fed. R. Civ. P. 26(b)(1), the “heavy burden” shifts to the resisting party to show that 
the requested discovery is disproportionate or unduly burdensome under the Rule 
26(b)(1) factors. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).1 
In stark contrast to Rule 26’s allocation of burdens, the Order imposes a 
heightened burden on the moving party at step 1 of the analysis, stating: “First, 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 7:6-8 (emphases added; citations omitted). Only 
 
1 When the 2015 amendments to the Federal Rules reincorporated a proportionality 
requirement into Rule 26, the Committee Notes made clear the change “does not place 
on the party seeking discovery the burden of addressing all proportionality 
considerations.” Fed. R. Civ. P. 26, 2015 Cmte. Notes. 
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then does the burden shift to the resisting party to substantiate its objections. In all but 
name, this is the apex doctrine that all parties now agree is inapposite. A distinctive 
feature of the apex doctrine is that it places a heightened burden on the party seeking 
discovery to show that the requested deponent has “unique first-hand, non-repetitive 
knowledge of the facts at issue,” not obtainable from other sources. Apple Inc. v. 
Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (emphases added). That is 
the precise burden the Order imposes on Plaintiffs. See ECF 268 at 7-9. An “argument 
that a party’s senior executives are protected from being designated as custodians 
unless the party seeking such designation shows they possess unique, personal 
knowledge … appears to call for application of the so-called ‘apex doctrine.’” 
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). 
While the Order does recognize that requiring Plaintiffs to show the Custodians’ 
files include uniquely relevant documents not available from other sources is akin to 
the apex deposition standard and nominally rejects that standard, the Order then 
applies it anyway. Specifically, the Order nominally rejects the Bank’s reliance on 
Lutzeier and Harris, finding them “generally inapplicable because they relied on the 
‘apex deposition doctrine,’ whereas the instant dispute concerns document discovery.” 
ECF 268 at 5 n.3; cf. Lutzeier v. Citigroup Inc., No. 14-cv-00183-RLW, 2015 WL 
430196, at *7 (E.D. Mo. Feb. 2, 2015) (denying request to add executives as ESI 
custodians where movant did not show executives had “unique or personal knowledge 
of the subject matter”); Harris v. Union Pac. R.R. Co., No. 8:16-cv-381, 2018 WL 
2729131, at *4 (D. Neb. June 6, 2018) (same). Despite this, the Order then applies a 
standard that is indistinguishable from those applied in Lutzeier and Harris. 
The Bank contends that it was appropriate for the Order to inject proportionality 
considerations in assessing Plaintiffs’ “initial burden.” Opp. 13:1-14. But, in addition 
to being wrong as a matter of law, this argument ignores that “proportionality” analysis 
under Rule 26 requires far more than what occurred here. Plaintiffs addressed all the 
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proportionality factors in its prior briefing, while the Bank ignored them. See ECF 209, 
212 at 7:19-8:22. The Order does not address Rule 26’s proportionality factors either. 
See ECF 268. For these reasons, the Order’s reliance on an incorrect legal standard 
requires de novo review. See Cohen, 2015 WL 3966140, at *7. 
B. The Portion of the Discovery Order Denying Plaintiffs’ Motion to 
Compel Moynihan’s and Montag’s Documents Must Be Reversed. 
Even without de novo review, reversal would be required because it is clear 
“that a mistake has been made.” Id. at *1. This mistake is highlighted by the significant 
additional evidence buried in the Bank’s voluminous eleventh-hour production that 
Judge Berg declined to consider. This Court should either consider that evidence itself, 
or remand for Judge Berg to review upon reconsideration. See Mot. 2:21-28, 12:6-24. 
1. Moynihan and Montag Are Key Decision-Makers Likely to Have 
Highly Relevant and Unique Documents Bearing on the Bank’s 
Reasons for Implementing the Claim Fraud Filter. 
There is no dispute the Custodians have relevant documents. See ECF 268 at 8-
9. Beyond this, Plaintiffs presented compelling evidence that both Custodians had 
personal knowledge and were directly involved in directing subordinates to develop 
an aggressive claim-denial strategy that prioritized the Bank’s economic self-interest 
over the needs of EDD cardholders—i.e., the CFF policies. See Mot. 17-23; Chan Decl. 
Exs. 1-24 (ECF 212-2 to -25); Supp. Chan Decl. Exs. 25-36 (ECF 279 to 279-14).  
Moynihan. The evidence demonstrates that CEO Brian Moynihan played a 
hands-on role in the Bank’s development and implementation of the CFF, “
 
” than the Bank had previously used. See Exs. 24, 27-33. That 
lower-level employees prepared materials to “present to Brian M” regarding such 
aggressive strategies to stem the Bank’s growing EFTA-related losses establishes his 
knowledge and participation and reinforces the likelihood that his files contain 
additional relevant documents. Responsive documents reviewed and prepared by 
Moynihan, even if also seen by others, are not unreasonably cumulative or duplicative, 
because they uniquely show what the Bank’s CEO himself knew and did, which is 
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critical to the punitive damages inquiry. See Mot. 7:10-9:4, 18:18-22. Cf. 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) (court will not limit discovery under Rule 26(b)(2) because 
it is “somewhat” cumulative and duplicative, only if it is “unreasonably” so).  
Moynihan was also likely involved in the Bank’s decision to freeze the cards 
and accounts of EDD benefits recipients whose claims triggered the CFF. See Ex. 7. 
While the Bank suggests that Plaintiffs, to gain access to his documents, must 
conclusively demonstrate that Moynihan made the ultimate decision, that would turn 
the discovery process upside down, requiring proof of what the evidence will show 
before allowing discovery into its existence. See Blankenship, 519 F.2d at 429 
(vacating protective order because plaintiff’s “suggesti[on]” of “possible information 
that [executive] might have” defeated argument that everything from the executive 
“would be repetitious with what plaintiff had learned from other sources”); 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 one could “infer” his unique knowledge). 
The evidence also shows that Moynihan “prepared memoranda and presented 
on key issues at Board meetings.” ECF 268 at 8; see Exs. 10-12. The Bank asserts that 
Plaintiffs are entitled to nothing more, because “the relevant board materials … plainly 
reflect ‘what was told to the Board’ about the issues Plaintiffs are concerned about.” 
Opp. 18:21-22. That assertion is contrary to common sense and case law. There is no 
basis for assuming that every relevant document in Moynihan’s possession was 
translated into board materials—and the Bank provides no evidence of such. See Goro 
v. Flowers Foods Inc., 334 F.R.D. 275, 286 (S.D. Cal. 2018) (overruling defendants’ 
objection where they “fail[ed] to attach the referenced document or explain why this 
document would provide Plaintiffs with the information they seek”). In any event, that 
“responsive documents will necessarily be found in other custodians' records is not 
sufficient to defeat a search of [a CEO’s] files.” Shenwick v. Twitter, Inc., No. 16-cv-
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05214, 2018 WL 833085, at *1 (N.D. Cal. Feb. 7, 2018); see also Mot. 18:24-28 (citing 
cases). 
Montag. The evidence shows that Montag likewise has critically important 
documents. In addition to being COO, Montag led the Bank’s Global Banking and 
Markets (GBAM) division, which operated the EDD card program, conceived of and 
implemented the CFF policy, and set customer service staffing levels. He played an 
active role in these issues, personally directing subordinates to develop strategies to 
stem the Bank’s losses from paying EFTA-required credits, which resulted in creation 
of the CFF and the policy of subjecting EDD cardholder claims to “
 
.” See Mot. 22:1-23:23; Ex. 25. He communicated with “[a] lot of people,” 
including Moynihan, about UI prepaid fraud claims and the Bank’s strategies to 
mitigate the Bank’s EFTA-related losses. See Exs. 3, 14, 26, 28. He was also a member 
of the management committees that approved the CFF policy and were tasked with 
.” Exs. 29-35. The 
Bank’s assertion that Montag “only had ‘basic’ or ‘general awareness’ of the prepaid 
card program and [was] not [a] decision maker[] on key issues related to the program” 
(Opp. 15:7-9) is contrary to the evidence.2 
Resorting to ad hominem attacks, the Bank charges that Plaintiffs’ counsel 
designated the Custodians only to “harass” the Bank’s “top two” executives. Opp. 1. 
That is both untrue and makes no sense. ESI custodians are rarely involved in the 
collection or review of their ESI, and the Bank will only be required to produce 
responsive documents. Executive ESI searches are no different than any other 
 
2 For example, the Bank responds to Ex. 26, a document in which senior manager John 
Lawlor, who had been emailing with Tom Montag the prior day about prepaid fraud 
losses, stated: “A lot of people are talking to Tom,” by pretending not to know “1) who 
‘Tom’ is, 2) who the ‘people’ are that are supposedly talking to ‘Tom,’ or 3) what they 
are saying.” Opp. 22. In context, “Tom” could only be Tom Montag; the “people” 
talking to Tom and the details of what they are saying are precisely what Plaintiffs’ 
RFPs 76-79 seek to establish; and the topic of those discussions is likely the same topic 
that was the subject of Lawlor’s and others’ emails during that short time period: the 
Bank’s losses from paying EFTA-required credits and its efforts to stem those losses. 
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custodian’s ESI search. The Bank’s attack also ignores that Montag is not even a 
current Bank employee, having left the Bank in December 2021, according to his 
LinkedIn profile.3  
While the Bank faults Plaintiffs for not seeking to compel CFO Paul Donofrio’s 
documents (Opp. 20:25-28), it omits that Plaintiffs did initially seek his and Chief Risk 
Officer Geoffrey Greener’s documents but, in an effort to compromise, later dropped 
both to focus on those Plaintiffs thought were likely to have the most relevant, non-
duplicative documents. Montag was an obvious priority because he was the head of 
GBAM, the division responsible for the Bank’s EDD card program and for creating 
and implementing the CFF. See Mot. 22:3-7; Exs. 14-20. So was Moynihan, the only 
officer who is on the Board of Directors, and who presented to the Board on several 
key issues. See Mot. 20:12-23; Exs. 10-12. Documents show that both Custodians 
communicated with other executives (custodians and non-custodians alike) about the 
EDD card program and the need to curtail the Bank’s losses from paying EFTA-
required credits. See Exs. 1, 3, 14, 25-28. Communications between Moynihan or 
Montag and other non-custodian executives (such as Donofrio and Greener) about the 
CFF and the Bank’s reasons for implementing it are not obtainable from any existing 
custodians. 
2. The Maximal Relevance of Moynihan’s and Montag’s Documents 
to the Central Issues in the Case Far Outweighs the Minimal 
Burden of Producing Their Non-Duplicative Documents. 
Despite the critical importance of proportionality to the Rule 26 analysis, the 
Bank devotes a mere half page to the issue. Opp. 24:5-22. Neither that analysis, nor 
anything in the Discovery Order, addresses how proportionality analysis should be 
applied in this case, given the core disputes over treble and punitive damages, and the 
minimal incremental burden of searching for and producing responsive, non-
duplicative documents from these two Custodians. See Mot. 23:24-25:21. 
 
3 https://www.linkedin.com/in/tom-montag-68772b9/. 
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(a) The importance of the issues at stake and (b) the amount in controversy. The 
Bank starts with the surprising argument that its damages exposure is minimal because 
its use of the CFF was “short-lived” and because “[l]ittle [r]emains” of Plaintiffs’ 
claims now that it has reimbursed EDD cardholders for many millions of dollars that 
it wrongfully withheld from them under its CFF policy. See Opp. 1:17, 6:9-19. This 
ignores that the only reason the Bank’s CFF policy was “short-lived” is because 
Plaintiffs obtained a preliminary injunction that enjoined the Bank from using it and 
required the Bank to reconsider previously denied claims. FAMCC, Ex. A (“PI 
Order”), Ex. B (“PI”). The Bank also ignores that neither the preliminary injunction 
nor the CFPB/OCC Consent Decrees (see Mot. 5:17-9:4) preclude Plaintiffs’ claims for 
treble and punitive damages, which the Bank does not dispute could be in the “hundreds 
of millions of dollars.” See Mot. 7:10-9:4, 24:3-8; cf. Oxbow Carbon & Minerals LLC 
v. Union Pac. R.R. Co., 322 F.R.D. 1, 7-8 (D.D.C. 2017) (amount in controversy of 
over $150 million in treble damages weighed in favor of compelling CEO’s 
documents). The Order did not address these highly important proportionality factors. 
(c) The importance of the discovery in resolving the issues. Documentary 
evidence establishing the Custodians’ knowledge, participation, and approval of the 
Bank’s challenged conduct goes to the heart of Plaintiffs’ punitive and treble damages 
claims. See Mot. 7:10-9:4. The Bank’s principal objection to producing the 
Custodians’ documents is that Plaintiffs already have evidence about the Bank’s CFF 
policy from lower-level custodians. It is true Plaintiffs already have considerable 
evidence establishing what the Bank did in hastily designing and implementing the 
CFF’s crude and untested indicators, and then using the CFF for nine months until the 
June 2021 preliminary injunction as the sole basis for automatically: (1) denying every 
claim of an unauthorized 
, (2) freezing the account of any EDD 
cardholder who submitted such a claim, and (3) rescinding permanent credits the Bank 
had previously issued. See Mot. 4:18-5:16. But Moynihan and Montag’s documents 
are uniquely relevant, non-cumulative, and non-duplicative because they will show 
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why the Bank’s decision-makers directed their subordinates to develop and implement 
the CFF policy, and whether they did so in reckless disregard of the known or 
foreseeable harms it would have on tens of thousands of innocent Californians who 
relied on their UI benefits. See Dang v. Cross, 422 F.3d 800, 809-10 (9th Cir. 2005); 
Cal. Civ. Code §3294(b). Such documents are critical to resolving whether the Bank’s 
challenged conduct was “knowing[] and willful[],” thus triggering EFTA treble 
damages, 15 U.S.C. §1693f(e)(2), and sufficiently egregious to trigger punitive 
damages under Plaintiffs’ due process and common law claims. See Mot. 7:10-9:4. 
(d) The parties’ relative access to relevant information and (e) the parties’ 
resources. These factors, too, weigh in Plaintiffs’ favor, and are not disputed by the 
Bank. See Mot. 24:26-25:21; see generally Opp. 
 (f) Whether the burden or expense of the proposed discovery outweighs its likely 
benefit. The incremental burden to the Bank of producing documents from these two 
custodians—which the Bank now admits will cost a small fraction of what it told Judge 
Berg—is minimal in relation to Plaintiffs’ established need. Compare ECF 209-2 ¶9 
(estimating “$290,000 per additional custodian collected and reviewed”), with ECF 
287-2 ¶12 (estimating combined cost for Moynihan and Montag of “between $135,000 
and $170,000”).4 The Bank’s ability to de-duplicate any copies of documents already 
produced from existing custodians will further reduce the cost burden (and defeats the 
Bank’s argument that the requested discovery is “unreasonably cumulative or 
duplicative” (see, e.g., Opp. 2:26)). See Williams v. Apple, Inc., No. 19-cv-04700-
LHK-VKD, 2020 WL 5107639, at *2 (N.D. Cal. Aug. 31, 2020); SPS Techs., LLC v. 
Briles Aerospace, Inc., No. 18-cv-9536-MWF, 2019 WL 13108021, at *1 (C.D. Cal. 
 
4 The Bank’s principal burden argument that it already incurred substantial costs in 
producing other documents (Opp. 1:15-16) is not compelling. Plaintiffs should not be 
penalized simply because the Bank failed to respond to its prior discovery obligations 
in a cost-effective manner. Compare id. at 7:27-8:7 (claiming Bank spent “more than 
$7 million” to review and produce approximately 275,000 documents from 20 
custodians), with Oxbow Carbon, 322 F.R.D. at 9 (party spent $1.391 million to review 
and produce approximately 584,000 documents from 19 custodians). 
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June 25, 2019). In the context of this case, the incremental cost of reviewing these two 
custodians’ documents is not disproportionate. See Oxbow Carbon, 322 F.R.D. at 9 
(estimated cost of $142,000 to produce CEO’s estimated 65,000 documents—“a 
fraction of the cost of discovery to date”—not unduly burdensome or disproportionate, 
especially considering amount in controversy was “tens of millions of dollars”).5 
The Bank insists Moynihan and Montag are unlikely to have many responsive, 
non-duplicative documents. If that proves to be true, the burden on the Bank will be 
even less. But if even a handful of responsive documents demonstrate that Moynihan 
or Montag knew, for example, that the CFF would have a significant false positive rate 
and wrongfully deprive legitimate EDD cardholders of access to desperately needed 
funds, they would be hugely significant to Plaintiffs’ treble and punitive damages 
claims. To deprive Plaintiffs of those documents would be unduly prejudicial and a 
miscarriage of justice for the tens of thousands of Californians who “depend[ed] on 
unemployment benefits to get through the pandemic” and to “feed their families and 
keep a roof over their heads,” PI Order at 2, whose benefits the Bank withheld for 
weeks and months without reasonable basis. 
III. 
CONCLUSION 
For all these reasons and those stated in the opening brief, Plaintiffs respectfully 
request the Court modify the Discovery Order and compel the Bank to add Moynihan 
and Montag as ESI custodians, or alternatively, to remand to Judge Berg for 
reconsideration under the correct Rule 26 legal standard and in light of Plaintiffs’ 
supplemental evidence.  
/ / / 
 
5 The Bank tries to defend Judge Berg’s order by invoking Rule 26(b)(2)(C)(i), but as 
the Bank acknowledges, Rule 26(b)(2) also “requires that the court apply a benefits 
versus burden approach” in ensuring discovery is not “unreasonably cumulative or 
duplicative.” Laryngeal Mask Co., 2009 WL 10672436, at *4; see Opp. 11:24-12:1. 
Neither the Bank nor the Discovery Order makes any attempt to engage in a balancing 
of the benefits versus burdens of compelling the Custodians’ documents. 
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Respectfully submitted, 
Dated: June 7, 2024 
COTCHETT, PITRE & McCARTHY, LLP 
 
By: /s/ Brian Danitz 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
ANDREW F. KIRTLEY 
 
Dated: June 7, 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 
 
 
 
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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 
 
 
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