Response re 326 Motion for Order filed by Consolidated Plaintiffs — In re BofA Unemployment Litigation (Dkt. 329)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 329 · 2024-09-06 · Docket on CourtListener

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Reply ISO Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
 
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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 
 
REPLY IN SUPPORT OF 
PLAINTIFFS’ MOTION FOR 
PROTECTIVE ORDER RE:  
128 DEPOSITIONS 
 
This Document Relates to All Actions 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 329     Filed 09/06/24     PageID.7440     Page 1
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Reply ISO Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
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The Bank’s brief (ECF 326) fails in three respects. First, the Bank fails to establish 
good cause for any Individual Plaintiff deposition to be conducted (whether in person or 
remotely) before Judge Curiel issues a ruling on the pending Motion to Stay, which is set 
for hearing on September 9 and may moot the present discovery dispute altogether. 
Second, the Bank fails to establish good cause for taking any more than the 10 depositions 
permitted by Rule 30(a)(2)(A)(i), which it has already taken; and it has neither moved for 
leave to take more nor made the requisite showing of need. Third, the Bank fails to 
establish why, even assuming it were able to show the requisite need for more than 10 
depositions, Plaintiffs should be subjected to the undue burden of having to defend 128 
depositions taken on a compressed schedule of multiple depositions per day for two 
months straight, at the same time the parties will be actively engaged in class certification 
briefing and expert discovery—particularly when the Bank could have brought a motion 
seeking leave to take these 128 Individual Plaintiff depositions at any time since the 
discovery stay was lifted in May 2023, but never did. Because the Bank has not satisfied 
and cannot satisfy its burden on any of these points, Plaintiffs’ request for a protective 
order (ECF 327) should be granted.  
1. The Bank agrees with Class Plaintiffs that the “dispute before the Court at the 
IDC was simply whether the Plaintiffs would be required to appear in person or remotely.” 
ECF 126 at 3:15-16; see ECF 127 at 3:3-5. Nevertheless, the Bank improperly invited the 
Court at the IDC to rule not just on the manner of depositions, but on the propriety and 
timing of depositions themselves. In doing so, the Bank unnecessarily created the potential 
for conflict and inconsistent rulings. Any ruling as to whether additional Individual 
Plaintiff depositions shall be taken should be deferred until after Judge Curiel rules on the 
pending Motion to Stay and determines the future course of those individuals’ claims. 
2. The Bank’s assertion that it is “entitled” to 128 additional depositions (ECF 126 
at 3) is contrary to the law and the facts. The Court has never ruled that “BANA is entitled 
to take the deposition of each Individual Plaintiff” (id. at 3:19-20). To date, the Court’s 
only ruling regarding depositions was that consistent with Rule 30(a)(2)(A)(i), the Bank 
Case 3:21-md-02992-GPC-MSB     Document 329     Filed 09/06/24     PageID.7441     Page 2
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Reply ISO Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
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could take only 10, in any combination, before Plaintiffs filed the Motion for Class 
Certification. No preliminary discussion at a status conference “entitled” the Bank to take 
additional depositions, and the Bank never received “leave of court” (id. at 3:22) as it 
claims. The Bank bears the burden of making a “particularized showing of why the 
discovery is necessary” to expand beyond the 10-deposition limit. Acosta v. Southwest 
Fuel Management, Inc., 2018 WL 1913772, at *6 (C.D. Cal. 2018); Dowkin v. Honolulu 
Police Dep’t, 2012 WL 13168531, at *5 (D. Haw. 2012) (“Plaintiffs have cited no legal 
authority to support its position that they are permitted to take 41 depositions as a result 
of the number of named parties—presumably because no such legal authority exists.”). 
Here, the parties have never briefed the propriety of taking additional depositions (let 
alone 128 more) or what the timing should be, and the Court has never issued an order 
after a fair opportunity for Class Plaintiffs to fully brief and be heard on those issues.1  
3.  The Bank cannot justify the timing of the 128 additional depositions it now seeks 
to take. The Bank cites the December 14 fact discovery cutoff, but the Bank itself waited 
until July 11 to serve a deposition notice on 128 plaintiffs, and then noticed them all for 
between September 16 and 27 (later amended to September 16 to November 7). ECF 321-
1 ¶¶56, 60. Because the Bank has made plain its intent to try to use these depositions in 
opposing class certification (though they could just as easily support class certification), 
Class Plaintiffs of course have both an “interest” and a right to prepare for, attend, and 
participate in these depositions. See ECF 126 at 1-2, 5. Taking these depositions in parallel 
with the class certification expert depositions and briefing would be not only wasteful, but 
an extraordinary and unnecessary drain on Class Plaintiffs’ resources—all of which 
benefits the Bank and severely prejudices the Class.  
 
1 The Bank’s cases do not hold differently. Moreno v. Autozone, Inc., 2007 WL 2288165 
(N.D. Cal. 2007) concerned deposing those who “injected themselves into the class certif-
ication motion” by “submitt[ing] declarations” (id. at *1), and similarly Antoninetti v. 
Chipotle, Inc., 2011 WL 2003292 (S.D. Cal. 2011) those who “submitted declarations in 
support of…class certification and whom Plaintiff ha[d] identified as witnesses” (id. at 
*2)— which is not the case with respect to any of the 128 presumptive opt-outs in this case. 
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Reply ISO Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
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Respectfully submitted, 
Dated:  September 6, 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 6, 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 329     Filed 09/06/24     PageID.7443     Page 4
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Reply ISO Plaintiffs’ Motion for Protective Order Re: 128 Depositions 
Case No. 3:21-md-02992-GPC-MSB 
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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 6, 2024 
 
 
/s/ Brian Danitz 
 
 
    Brian Danitz 
 
Case 3:21-md-02992-GPC-MSB     Document 329     Filed 09/06/24     PageID.7444     Page 5
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