MEMORANDUM OF FACTS AND CONTENTIONS OF LAW by Consolidated Plaintiffs. (Danitz,… — Bofa Ca Unemployment (Dkt. 327)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 327 · 2024-09-03 · Docket on CourtListener

Full text

Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JOSEPH W. COTCHETT (SBN 36324) 
jcotchett@cpmlegal.com 
BRIAN DANITZ (SBN 247403) 
bdanitz@cpmlegal.com 
KARIN B. SWOPE (Pro Hac Vice) 
kswope@cpmlegal.com 
BLAIR V. KITTLE (SBN 336367) 
bkittle@cpmlegal.com 
VASTI S. MONTIEL (SBN 346409) 
vmontiel@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 
KATHERINE G. BASS (SBN 344748) 
kbass@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 
 
PLAINTIFFS’ MOTION FOR 
PROTECTIVE ORDER RE:  
128 DEPOSITIONS 
 
This Document Relates to All Actions 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 327     Filed 09/03/24     PageID.7405     Page 1
of 8

 
Class Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
1 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Pursuant to the Court’s Order Setting Briefing Schedule For Discovery Dispute 
(ECF 319), Plaintiffs move for a protective order precluding Defendant Bank of America 
(the “Bank”) from taking 128 additional Plaintiff depositions at this time as noticed.  
I. 
FACTUAL BACKGROUND 
 
Between February and May 2024, the Bank deposed five Class Plaintiffs and five 
Individual Plaintiffs in response to this Court’s ruling that it could take a total of 10 
depositions, in any combination, before Plaintiffs filed the Motion for Class Certification. 
On August 6, 2024, the Court held a status conference in which Liaison Counsel 
for Individual Plaintiffs stated the Bank had recently noticed 122 additional depositions 
of Individual Plaintiffs and asked about the proper procedure for seeking a stay of the 133 
Individual Plaintiffs’ cases. The Court instructed that the stay motion should be directed 
to Judge Curiel and, if the motion were filed within a week, any decision on additional 
depositions could wait until after the ruling on that motion. 
On August 9, the Bank served an amended notice of deposition for 128 Individual 
Plaintiffs. (Exhibit A). The Bank’s August 9 Deposition Notice set a highly compressed 
schedule for the remaining 128 Individual Plaintiffs’ depositions to be taken in-person, 
four-per-day, from September 16 to November 7, 2024 in four different cities: 
Bakersfield, San Francisco, Los Angeles, and San Diego.  Id. 
 
On August 13, the Individual Plaintiffs timely moved to stay their cases until the 
common issues of law and fact could be adjudicated in the consolidated Class Case. ECF 
311.  The motion argued, inter alia, that a temporary stay will serve the interests of 
judicial and party economy and that taking the depositions of 128 Individual Plaintiffs at 
this time would be wasteful because the Courts’ adjudication of common issues in the 
Class Case will narrow the issues to be litigated and decrease the number of Individual 
Plaintiffs who will proceed on an individual basis. Id. The motion also pointed out that 
257 other individual plaintiffs’ cases are already stayed, and that the Bank has not 
identified any prejudice that would result from the requested stay.  
That stay motion is set to be heard by Judge Curiel on September 9, 2024. 
Case 3:21-md-02992-GPC-MSB     Document 327     Filed 09/03/24     PageID.7406     Page 2
of 8

 
Class Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
2 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On August 20, 2024, at a scheduled status conference, the Court held an informal 
discovery conference (“IDC”) to address whether the Individual Plaintiff depositions 
could be taken remotely. The IDC was the result of a meet and confer between the Bank 
and Liaison Counsel for the Individual Plaintiffs that excluded Class Counsel–who did 
not receive proper notice of the IDC or an opportunity to brief the issues. At the IDC, Co-
Lead Counsel objected on that basis, pointing out that their exclusion violated the Court’s 
Order Re: Case Management, ECF 48 at 3:6-10. The Court offered additional informal 
briefing but advised that the tentative would not change, at which point Co-Lead Counsel 
declined to request additional informal briefing.   
The Court tentatively found that the Individual Plaintiffs had not demonstrated that 
in-person depositions would be unduly burdensome. Although the dispute concerned only 
the method by which the depositions could be taken—not whether any of the depositions 
should be allowed to proceed, and if so, on what schedule—the tentative further provided 
that 10 additional depositions may proceed now, that other depositions may proceed after 
Judge Curiel rules on the pending Motion to Stay, and that the December 12, 2024 
discovery deadline may be extended to accommodate those additional 128 depositions. 
Class Counsel requested formal briefing and the Court granted the request on an 
abbreviated schedule. On August 27, 2024, the Bank re-noticed ten of the 128 depositions 
to be taken two-per-day from September 16 to September 20. (See Exhibit B). 
II. 
ARGUMENT 
A party may move for a protective order and “the court may, for good cause, issue 
an order to protect a party or person from annoyance, embarrassment, oppression, or 
undue burden or expense, including … forbidding inquiry into certain matters, or limiting 
the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c). 
A. An Order Permitting Individual Depositions to Go Forward Is Premature. 
Good cause exists to preclude the 128 additional Plaintiff depositions as premature. 
An order permitting additional individual plaintiff depositions to go forward now, before 
Judge Curiel’s ruling on the pending stay motion, would be premature for two reasons.   
Case 3:21-md-02992-GPC-MSB     Document 327     Filed 09/03/24     PageID.7407     Page 3
of 8

 
Class Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
3 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
First, the Bank has not yet filed a motion seeking leave to take any depositions 
beyond the 10-deposition limit set forth in Rule 30(a)(2)(A)(i), and that issue was not 
fairly presented at the IDC. The IDC only requested the Court’s ruling on the method to 
be used in taking Individual Plaintiff depositions. The IDC did not raise the issue of 
whether and to what extent any of these depositions should go forward or their timing.  
Even the Bank acknowledged in footnote 1 of its IDC letter brief that “the timing of 
Plaintiffs’ depositions is not ripe for the Court’s decision at the IDC.”  
In the absence of a motion seeking leave to take additional depositions beyond the 
10 permitted by the Federal Rules, the Bank has not made the requisite showing of good 
cause and proportionality warranting any depositions beyond those already taken, let 
alone 128 more. Because the parties did not ask the Court to rule on the propriety of 
taking these depositions or their timing, the Court should decline to do so until that issue 
is briefed and ripe for decision.  
Second, any decision regarding the propriety and/or timing of these depositions is 
premature because Judge Curiel has not yet issued a ruling on the pending motion to stay 
(ECF 311) and Class Plaintiffs’ Joinder in that motion (ECF 320)—which seek a 
temporary stay of the individual plaintiff cases in the interests of justice and judicial and 
party economy, until the Court has ruled on common issues of law and fact in the class 
case. This will narrow the issues to be litigated and likely substantially reduce the number 
of Individual Plaintiffs who will opt out of any class that is certified to proceed on an 
individual basis—i.e., there will be fewer individual plaintiffs, thereby reducing the 
number of depositions to be taken.  
Judge Curiel’s ruling on the Motion to Stay will provide needed guidance 
regarding how this multi-district litigation should proceed, including on the question of 
whether the 128 Individual Plaintiff depositions noticed by the Bank should proceed in 
parallel with the Motion for Class Certification and at the same time expert discovery is 
taking place. Accordingly, consistent with the Court’s direction at the August 6 status 
conference, and to avoid any potential conflict with Judge Curiel’s forthcoming ruling on 
Case 3:21-md-02992-GPC-MSB     Document 327     Filed 09/03/24     PageID.7408     Page 4
of 8

 
Class Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
4 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Motion to Stay, the Court should defer any ruling regarding the need for these 
depositions or their timing until after Judge Curiel issues an order on the Motion to Stay, 
as that order will clarify a number of issues pertinent to these depositions.    
B. 128 Additional Depositions Exceeds the 10-Deposition Limit Imposed by 
FRCP 30 and the Bank Has Not Made the Requisite Showing of Need. 
Even if the Motion to Stay were not pending before Judge Curiel, good cause 
would still exist to preclude the 128 additional Plaintiff depositions because the Bank has 
not made the requisite particularized showing of need to expand the number of 
depositions beyond the 10-deposition limit imposed by Rule 30 (a)(2)(A)(i), which 
imposes that same limit on both sides of the litigation, no matter how many parties are 
named, as made clear in the 1993 advisory committee notes.  
The Bank can cite no legal authority to support its apparent position that it is 
permitted to take an additional 128 depositions as a result of the number of named 
parties. Therefore, the Bank has exceeded the 10-deposition-per-side limit and must 
obtain either Plaintiffs’ stipulation or leave of Court to take these additional depositions, 
especially if it intends to use them in the Class Case, which is the Bank’s apparent intent.  
Plaintiffs have not stipulated to allow these depositions. To the contrary, they have 
moved to stay the individual claims, in response to the Bank’s overreaching deposition 
notice. The Bank has also made no showing why it needs those 128 depositions, let alone 
now. Parties seeking to exceed the 10-deposition limit “must make a particularized 
showing of why the discovery is necessary.” Acosta v. Southwest Fuel Management, Inc., 
2018 WL 1913772, at *6 (C.D. Cal., 2018) (citing Lloyd v. Valley Forge Life Ins. Co., 
No. C06–5324 FDB, 2007 WL 906150, at *2 (W.D. Wash. Mar. 23, 2007); Bell v. 
Fowler, 99 F.3d 262, 271 (8th Cir.1996)). Here, the Bank has not come close to making 
the requisite showing; indeed, it never even filed a motion seeking leave to proceed.  
Because the Bank has not identified any particularized need for the 128 additional 
depositions, the Court should not permit these depositions to proceed without providing a 
full opportunity to be heard on why each of these depositions is needed, and what the fair, 
Case 3:21-md-02992-GPC-MSB     Document 327     Filed 09/03/24     PageID.7409     Page 5
of 8

 
Class Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
5 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reasonable, and non-prejudicial timing of the depositions should be. See Rieman v. Cnty. 
of San Bernardino, 2021 WL 8918563, at *2 (C.D. Cal. 2021) (denying additional 
depositions absent particularized showing of need: “The court here is not being asked to 
limit discovery otherwise allowed, but rather to expand the scope of discovery, and 
plaintiffs have made little showing of the need for such expansion.”). 
C. The 128 Noticed Depositions Are Unduly Burdensome. 
Good cause also exists to preclude the 128 depositions from proceeding at this time 
because, as noticed, the depositions are unduly burdensome and plainly calculated to 
harass Class Plaintiffs when the parties will be engaged in expert discovery and briefing. 
As discussed above, the Bank has not explained and cannot explain why it must take these 
depositions now, rather than after Judge Curiel’s rulings on the pending motions.  In 
contrast, Plaintiffs will be severely prejudiced if these depositions are permitted to go 
forward. The timing of the 128 noticed depositions overlaps completely with the period 
during which Class Plaintiffs will be preparing for and defending depositions of Plaintiffs’ 
four experts between now and the Bank’s class certification opposition, due October 24, 
preparing for and taking depositions of the Bank experts, and preparing Plaintiffs’ reply in 
support of class certification, due November 21.  If depositions of 128 additional 
Individual Plaintiffs are allowed to proceed before Plaintiffs’ class certification motion is 
resolved, and unless the Bank is precluded from using those Individual Plaintiff 
depositions in the Class case, Class Plaintiffs will be forced to divert resources from those 
class certification efforts to prepare for, attend, and participate in the Individual Plaintiffs’ 
depositions. Further, scheduling multiple depositions per day for two months straight 
deprives Plaintiffs’ Counsel of any reasonable opportunity to prepare the Individual 
Plaintiffs for their depositions. It is patently unfair to require these plaintiffs to be subject 
to deposition without adequate preparation. The Bank’s unduly burdensome, oppressive, 
and harassing schedule is entirely unnecessary and would have no practical impact on this 
litigation but to drain Plaintiffs’ resources.  
Case 3:21-md-02992-GPC-MSB     Document 327     Filed 09/03/24     PageID.7410     Page 6
of 8

 
Class Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
6 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Respectfully submitted, 
Dated:  September 3, 2024 
 
COTCHETT, PITRE & McCARTHY, LLP 
 
By:  /s/ Brian Danitz 
 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
BLAIR V. KITTLE 
VASTI S. MONTIEL 
 
Co-Lead Counsel for Plaintiffs and the 
Proposed Class  
 
 
Dated:  September 3, 2024 
 
ALTSHULER BERZON LLP 
 
By:  /s/ Michael Rubin  
 
 
 
 
 
  
 
MICHAEL RUBIN  
STACEY M. LEYTON  
CONNIE K. CHAN 
 
 
 
 
 
 
KATHERINE G. BASS 
 
 
 
 
 
 
COLIN C. JONES 
 
Co-Lead Counsel for Plaintiffs and the 
Proposed Class  
 
 
Case 3:21-md-02992-GPC-MSB     Document 327     Filed 09/03/24     PageID.7411     Page 7
of 8

 
Class Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
7 
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SIGNATURE ATTESTATION 
Pursuant to section 2(f)(4) of the Electronic Case Filing Administrative Policies and 
Procedures Manual, I, Brian Danitz, attest that the other signatories listed, and on whose 
behalf this filing is submitted, concur in the filing content and have authorized this filing. 
 
Dated: September 3, 2024 
 
 
/s/ Brian Danitz 
 
 
    Brian Danitz 
 
Case 3:21-md-02992-GPC-MSB     Document 327     Filed 09/03/24     PageID.7412     Page 8
of 8

File and source

File

gov.uscourts.casd.709615.327.0.pdf

Size

211,750 bytes

SHA-256

228ecaeb7a1e0c4cb73bda0ced8c961e9591fee429d146f83f00bf6da876d7e5

Our copy

gov.uscourts.casd.709615.327.0.pdf

Original

PACER (login required)