Court filing
RESPONSE in Opposition re 327 MOTION for Protective Order filed by Bank of America,… — Bofa Ca Unemployment (Dkt. 330)
No. 3:21-md-02992-GPC-MSB · Doc. 330 · Docket on CourtListener
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Case 3:21-md-02992-GPC-MSB Document 330 Filed 09/06/24 PageID.7445 Page 1
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1 JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
2 GOODWIN PROCTER LLP
100 Northern Avenue
3 Boston, MA 02210
Tel.: +1 617 570 1000
4 Fax: +1 617 523 1231
5 SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
6 MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
7 GOODWIN PROCTER LLP
1900 N Street, NW
8 Washington, DC 20036
Tel.: +1 202 346 4000
9 Fax: +1 202 346 4444
10 Attorneys for Defendant
BANK OF AMERICA, N.A.
11
12 [ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
13 UNITED STATES DISTRICT COURT
14 SOUTHERN DISTRICT OF CALIFORNIA
15 SAN DIEGO DIVISION
16 IN RE: BANK OF AMERICA Case No. 21-MD-02992-GPC-MSB
CALIFORNIA UNEMPLOYMENT
17 BENEFITS LITIGATION MEMORANDUM OF POINTS
18
AND AUTHORITIES IN
OPPOSITION TO PLAINTIFFS’
19 MOTION FOR A PROTECTIVE
ORDER
20
Date: N/A, per Dkt. 319
21 Time: N/A, per Dkt. 319
22 Ctrm: 2C
Judge: Hon. Michael S. Berg
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BANA’S OPP. TO MOT. FOR PROTECTIVE ORDER CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 330 Filed 09/06/24 PageID.7446 Page 2
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1 Nothing in Class Counsel’s Motion for Protective Order, ECF 327 (“Mot.”),
2 justifies reversal of the Tentative Order.1
3 Prematurity. Class Counsel complains that the 10 previously-ordered
4 depositions are premature because BANA did not move for leave to take them (Mot.
5 at 4), but there was no need for BANA to file a formal motion. Individual Counsel—
6 who actually represents the would-be deponents in this action—did not object to the
7 taking of 10 depositions pending the Court’s ruling on the Stay Motion. See Health
8 v. Nautilus Ins. Co., 2022 WL 18031825, at *2–3 (S.D. Cal. Dec. 31, 2022) (no
9 formal motion necessary in light of “tacit understanding and agreement” among
10 parties for additional depositions). Despite having multiple opportunities to raise this
11 issue before the Court (in the IDC briefing, at the IDC itself, in the Stay Motion, and
12 in the Stay Reply), Individual Counsel has never objected to the relevance of the
13 depositions. Rather, Individual Counsel’s concerns have been limited to the timing
14 (now or later) and method (in person or remote) of the depositions that Individual
15 Counsel, presumably, understands are a natural consequence of their clients’ decision
16 to sue BANA. Indeed, prior to Class Counsel’s improper intervention, Individual
17 Counsel offered seven Individual Plaintiffs available for deposition in Los Angeles
18 in September and offered to immediately identify three more. See Brys Decl., ¶¶ 61,
19 65. Regardless, Rule 30 permits a party to take more than 10 depositions upon “leave
20 of Court” which is what the Tentative Order provided. See BANA Br. at 4.
21 Class Counsel’s arguments that no depositions should happen until after a
22 ruling on the Stay Motion (Mot. at 4) have already been considered and rejected.
23 The Court was well aware of the pendency of the Stay Motion when it issued the
24 Tentative Order, and nonetheless found that it was appropriate to allow the 10
25 depositions to go forward now, in light of the fact that BANA has been trying to
26 schedule these depositions for months and that Individual Counsel objected only to
27 whether the depositions should proceed in person. See BANA Br. at 3. As explained,
28 1
Defined terms have the same meaning as in ECF 326 (“BANA Br.”).
1
BANA’S OPP. TO MOT. FOR PROTECTIVE ORDER CASE NO. 21-MD-02992-GPC-MSB
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1 BANA must begin scheduling the depositions now if they are to be completed before
2 or near the close of fact discovery in December. See id. 2
3 Need. Class Counsel also incorrectly say that BANA “can cite no legal
4 authority” to support its position (Mot. at 5). BANA cited Agena v. Cleaver-Brooks,
5 Inc, 2020 WL 6929671 (D. Haw. June 15, 2020), and Chavez v. Wis Holdings Corp.,
6 2013 WL 2181214 (S.D. Cal. May 20, 2013), cases wherein courts permitted
7 defendants to depose 73 and 30 plaintiffs, respectively, given the relevance of the
8 unique, otherwise unavailable information to be gained from those depositions to the
9 parties’ claims and defenses, including to oppose class certification. See BANA Br.
10 at 4–5. In contrast, it is Class Counsel who offer no legal authority for why they have
11 any right to object to depositions of people they do not represent.
12 Burden. Since the Tentative Order finding no Individual Plaintiff made any
13 showing of burden, no plaintiff filing—either by Individual or Class Counsel—has
14 attempted to remedy this failure. The best argument Class Counsel can come up with
15 is that the depositions of Individual Plaintiffs (who they do not represent, and do not
16 have to prepare for testimony) are “plainly calculated to harass Class Plaintiffs”
17 during the time that BANA will be writing its opposition to the class certification
18 motion. Mot. at 6. It is hard to see how this can be so when Class Counsel failed to
19 participate in the previous five Individual Plaintiff depositions. See Brys Decl. ¶¶ 40,
20 42–45. Class Counsel’s burden arguments further contemplate 128 depositions
21 (which are appropriate for the reasons in the Stay Opp.), but say nothing at all about
22 the burden associated with the 10 depositions contemplated by the Tentative Order.
23 Regardless, Class Counsel’s inability to allocate resources to multiple workflows at
24 once is not a reason to deny BANA discovery to which it is entitled.
25 For these, reasons the Court should deny the Motion, affirm the Tentative
26 Order, and order that the 10 depositions at issue proceed as noticed.
27 2
After pushing the Court for months to order BANA to comply with their ceaseless
discovery demands, Class Counsel casually suggest that the “discovery deadline may
28 be extended to accommodate” Plaintiffs’ compliance. Mot. at 3.
2
BANA’S OPP. TO MOT. FOR PROTECTIVE ORDER CASE NO. 21-MD-02992-GPC-MSB
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1
Dated: September 6, 2024 Respectfully submitted,
2
By: s/ Laura G. Brys
3
JAMES W. MCGARRY (pro hac vice)
4 JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
5 100 Northern Avenue
Boston, MA 02210
6 Tel.: +1 617 570 1000
Fax: +1 617 523 1231
7
THOMAS M. HEFFERON (pro hac vice)
8 THefferon@goodwinlaw.com
SABRINA M. ROSE-SMITH (pro hac vice)
9 SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
10 MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
11 1900 N St. NW
Washington, DC 20036
12 Tel: +1 202 346 4000
Fax: +1 202 346 4444
13
LAURA G. BRYS (SBN 242100)
14 LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
15 601 S Figueroa St., Suite 4100
Los Angeles, CA 90017
16 Tel.: +1 213 426 2500
Fax: +1 617 346 4444
17
YVONNE W. CHAN (pro hac vice)
18 YChan@jonesday.com
JONES DAY
19 100 High Street
Boston, MA 02110
20 Tel.: +1 617 960 3939
Fax: +1 617 449 6999
21
JANICE P. BROWN (SBN 114433)
22 jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN
23 278405)
mnazareth@myersnave.com
24 MEYERS NAVE
600 B Street, Suite 1650
25 San Diego, CA 92101
26 Attorneys for Defendant
BANK OF AMERICA, N.A.
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BANA’S OPP. TO MOT. FOR PROTECTIVE ORDER CASE NO. 21-MD-02992-GPC-MSB
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1 CERTIFICATE OF SERVICE
2 I hereby certify that I electronically filed the foregoing with the clerk of the
3 court for the United States District Court for the Southern District of California by
4 using the CM/ECF system on September 6. I further certify that all participants in
5 the case are registered CM/ECF users and that service will be accomplished by the
6 CM/ECF system. I certify under penalty of perjury that the foregoing is true and
7 correct.
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10 Executed: September 6, 2024 s/ Laura G. Brys
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BANA’S OPP. TO MOT. FOR PROTECTIVE ORDER CASE NO. 21-MD-02992-GPC-MSB
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