Memorandum of Facts and Contentions of Law by Bank of America, N.A. — In re BofA Unemployment Litigation (Dkt. 326)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 326 · 2024-09-03 · Docket on CourtListener

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BANA’S MEMO. ISO TENTATIVE 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 
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 SUPPORT 
OF AUGUST 20, 2024 TENTATIVE 
ORDER 
 
Date:  
N/A, per Dkt. 319 
Time: 
N/A, per Dkt. 319 
Ctrm:   
2C      
Judge:  
Hon. Michael S. Berg      
 
   
 
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Class Plaintiffs have incomprehensively injected themselves into a discovery 
dispute in which they have no interest, with the sole objective of preventing BANA 
from obtaining evidence relevant to its defense of this MDL.  The only explanation 
for Class Counsel’s dogged insistence that BANA not be allowed to take Individual 
Plaintiffs’ depositions (or, alternatively, that BANA not be allowed to use the 
depositions) is Class Counsel’s fear that the evidence obtained will harm their class 
certification arguments.  This is not a reason why the evidence cannot be taken. 
As this Court has previously stated on multiple occasions, it cannot seriously 
be disputed that BANA is entitled to depose the Individual Plaintiffs who have each 
sued BANA in their individual capacities, and the Court has already tentatively 
ordered that the depositions should proceed in person because no Individual Plaintiff 
has made any showing of burden.  The December 14, 2024 deadline for fact discovery 
is fast approaching, and BANA must be able to start scheduling and taking these 
depositions now in order to complete them on time.   
Class Plaintiffs’ request that the Court preclude BANA from using the 
Individual Plaintiff depositions in the class case lacks support, makes no sense, and 
exposes their true motives.  The Individual Plaintiffs are putative class members who 
have plainly injected themselves into the MDL by virtue of filing individual 
allegations in the MDL master consolidated complaints and making discovery 
demands in the MDL.  The facts of their cases are directly relevant to the class action.   
The Court should make its August 20, 2024 tentative order (“Tentative Order”) 
final, and require Plaintiffs to comply with the 10 previously-ordered in-person 
depositions as noticed in Exhibit A.1 
 
1 BANA is entitled to proceed with all Individual Plaintiff depositions unless or until 
Individual Plaintiffs’ motion to stay, ECF 311 (“Stay Motion”), is granted; and it 
should not be for the reasons explained in BANA’s opposition brief, ECF 321 (“Stay 
Opp.”).  The Stay Motion is currently scheduled for expedited hearing on September 
9, 2024, ECF 315, and BANA is hopeful that a decision will issue soon.  If, however, 
the Stay Motion is still pending when the 10 previously-ordered depositions are 
complete, BANA will seek the Court’s assistance with taking additional Individual 
Plaintiff depositions while awaiting the decision.   
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I. 
Class Plaintiffs Have No Interest In This Dispute. 
Class Plaintiffs have no colorable interest in this dispute that concerns 
Individual Plaintiffs who Class Counsel do not represent, and because of the limited 
scope of the Tentative Order.  At the conclusion of the August 20, 2024 Informal 
Discovery Conference (“IDC”), the Court issued the Tentative Order allowing 
BANA to proceed with 10 in-person Individual Plaintiff depositions while the Stay 
Motion is pending after receiving briefing and argument from the parties.  In issuing 
the Tentative Order, the Court relied on certain key facts: 1) BANA has been working 
with Individual Counsel on Individual Plaintiff discovery for months; 2) BANA has 
been trying to schedule additional Individual Plaintiff depositions for weeks 
(Plaintiffs first raised the concept of a stay on July 25, 2024, more than a month 
before the Stay Motion was filed on August 13, 2024); and 3) there has been no 
showing of undue burden by any Individual Plaintiff as to why the depositions should 
not occur in person.  Nothing Class Counsel may raise changes these key facts.   
Class Counsel’s objection to the Tentative Order is just their latest attempt to 
prevent BANA from taking discovery that Class Counsel fears will be unhelpful to 
their case.  On multiple occasions, Class Counsel asked the Court to delay Individual 
Plaintiff depositions because they would divert Class Counsel’s resources from their 
class certification motion.  See Stay Opp., Declaration of Laura Brys, ECF 321-1 
(“Brys Decl.”), ¶ 39.  Since BANA served its first deposition notice, the class 
certification deadline has been extended three times, giving Class Counsel seven 
extra months.  See ECF 139, 229 and 302.  And this round of depositions was noticed 
to begin two weeks after their long-extended deadline.  See Brys. Decl. ¶ 56.  Yet, 
Class Counsel still complains, pointing now to a supposed end-run around Rule 30 
(which arguments fail as explained below).  Even now, after the Court ordered 10 
depositions to proceed, Class Counsel intervened to prevent them from being 
scheduled.  Before the IDC, Individual Counsel identified seven Individual Plaintiffs 
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available for deposition the week of September 16, 2024, and immediately after the 
IDC, Counsel offered to quickly identify three more.  Brys Decl. ¶¶ 61, 65.  However, 
four days later, Individual Counsel terminated scheduling discussions, referring 
BANA to Class Counsel.  Class Counsel’s concerns about attorney resources and the 
Federal Rules are just a pretext for the real reason they do not want these depositions 
to go forward: they are worried the evidence will be bad for their case.  The fact that 
discovery may reveal evidence so relevant as to be harmful to one side has never 
been endorsed by a court as a reason not to allow it.  The Court should reject Class 
Counsel’s improper intervention.2     
II. 
BANA Is Entitled To Take The Individual Plaintiff Depositions. 
BANA is entitled to depose Individual Plaintiffs who have sued BANA in their 
individual capacities.  As a preliminary matter, Individual Counsel has challenged 
the manner and timing of the Individual Plaintiff depositions, but notably has not 
disputed BANA’s right to take them.  See generally Individual Plaintiffs’ 8/16/ Letter 
Brief; Stay Motion.  The dispute before the Court at the IDC was simply whether the 
Individual Plaintiffs would be required to appear in person or remotely.  Thus, an 
order from the Court is not required for these Individual Plaintiff depositions to be 
taken, as their counsel has already agreed they should.  See Brys Decl. ¶¶ 61, 65. 
In any event, this Court has already stated numerous times that BANA is 
entitled to take the deposition of each Individual Plaintiff.  And Rule 30 certainly 
allows for it, specifically providing for party depositions, and for “more than 10 
depositions” upon “leave of court,” which is exactly what the Court provided in the 
Tentative Order.  See Fed. R. Civ. P. 30(a)(1), (2)(A)(i).  Courts routinely extend the 
10-deposition limit in cases—like this one—with large numbers of plaintiffs.  See, 
 
2 Class Counsel also did not properly raise these issues with the Court.  Class 
Plaintiffs’ formal brief will raise issues beyond the scope of the dispute that was 
presented by Individual Plaintiffs and BANA at the IDC, beyond the scope of the 
Court’s Tentative Order, and beyond the issues raised at the IDC.  To the extent Class 
Plaintiffs’ brief goes beyond the issues Class Counsel disclosed to BANA would be 
included, BANA reserves its right to seek further briefing or pages to fairly respond. 
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e.g., Agena v. Cleaver-Brooks, Inc., 2020 WL 6929671, at *6-7 (D. Haw. June 15, 
2020) (granting defendants’ request to depose each of 73 plaintiffs); Chavez v. Wis 
Holdings Corp., 2013 WL 2181214, at *2 (S.D. Cal. May 20, 2013) (permitting 
depositions of 30 opt-in plaintiffs because they have “freely chosen to participate” 
and likely have “relevant information with respect to the claims and defenses”) 
(internal quotations omitted). 
It is irrelevant that Individual Plaintiffs may also be putative class members 
and some may elect, at some point in the future, to withdraw their individual claims 
and proceed as non-plaintiff or absent class members.  See Stay Motion at 4.  
Individual Plaintiffs are not absent putative class members now; they have each sued 
BANA in their individual capacities.  Moreover, even discovery from absent putative 
class members is permitted when putative class members have “injected” themselves 
into the litigation (see Antoninetti v. Chipotle, Inc., 2011 WL 2003292, at *2 (S.D. 
Cal. May 23, 2011)), as Individual Plaintiffs have plainly done here by including 
individual allegations in the master consolidated MDL complaints and making 
burdensome discovery demands on BANA—discovery demands to which BANA has 
already spent countless hours and dollars responding.  See Brys Decl. ¶¶ 13-16.  
Individual Plaintiffs possess information about their specific allegations “which may 
not be documented and thus not within [BANA’s] possession absent a deposition,” 
and such information is “reasonably necessary to [BANA’s] preparation of its 
opposition to the class certification motion.”  Moreno v. Autozone, Inc., 2007 WL 
2288165, at *1 (N.D. Cal. Aug. 3, 2007).     
Regarding timing, the close of fact discovery on December 14, 2024 is fast 
approaching.  To date, BANA has taken five Individual Plaintiff depositions; the first 
was noticed in December 2023, but not taken until March 7, 2024, and the fifth 
deposition was not taken until 2 months later, on May 7, 2024.  Brys. Decl. ¶¶ 40, 
45.  If BANA is to take depositions of the remaining 128 Individual Plaintiffs before 
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or near the close of fact discovery, it must begin scheduling and taking them as soon 
as possible given the previous scheduling challenges.   
Regarding manner, BANA is entitled to in-person depositions as stated in 
BANA’s prior brief, Exhibit B.  As the Court found at the IDC, no Individual Plaintiff 
has identified a burden sufficient to justify foregoing an in-person examination.         
III. 
The Depositions Are Directly Relevant To The Class Case. 
Class Counsel seeks to preclude BANA from using evidence from the 
Individual Plaintiff depositions in its defense of the class case on the basis that such 
use would be an end-run around Rule 30.  This non-sensical, unsupported, argument 
exposes the pretextual nature of Class Counsel’s objections.  This is not about Rule 
30, which has nothing to do with how BANA can use relevant discovery.  It further 
has nothing to do with attorney resources, timing, or whether the Individual Plaintiffs 
are parties subject to discovery in this action.3  Individual Plaintiffs are putative class 
members who have “injected” themselves into the MDL.  The facts of their individual 
cases are plainly relevant to the class case.  See Antoninetti, 2011 WL 2003292, at 
*2; Moreno, 2007 WL 2288165, at *1.  Class Counsel is concerned that Individual 
Plaintiffs’ facts will undermine their class certification arguments.  This is why they 
would “stipulate” and allow the depositions to go forward if BANA agreed “that it 
will not use the[m]” to oppose class certification.  Class Plaintiffs’ Stay Brief, ECF 
320, at 4 n.4.  Put plainly, Class Counsel only objects to the Individual Plaintiff 
depositions if they matter to the class case.  But that they may matter is just another 
reason why they should be allowed.    
For these reasons, BANA asks that the Court affirm the Tentative Order and 
require 10 Individual Plaintiffs to appear as noticed and agreed in Exhibit A.     
 
 
3 Indeed, Class Counsel did not object to BANA producing documents regarding 
Individual Plaintiffs’ claims, or to BANA answering Individual Plaintiffs’ 
allegations.  In fact, they demanded it in their own requests.  See Class Plaintiffs’ 
RFP 46 (seeking “ALL DOCUMENTS . . . concerning the EDD DEBIT CARD 
ACCOUNTS of each plaintiff in this action”) (emphasis added). 
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Dated:   September 3, 2024 
Respectfully submitted, 
 
By: s/ Laura G. Brys 
 
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 
LAURA G. BRYS (SBN 242100) 
LBrys@goodwinlaw.com 
GOODWIN PROCTER LLP 
601 S Figueroa St., Suite 4100 
Los Angeles, CA 90017 
Tel.: +1 213 426 2500 
Fax: +1 617 346 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. 
 
 
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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 September 3.  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: 
September 3, 2024 
 
s/ Laura G. Brys 
 
 
 
 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 326     Filed 09/03/24     PageID.7393     Page 8
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