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MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 451)
Summary
Bank of America, N.A.'s motion to file documents under seal in support of its motion for a protective order, filed 04/11/25 as Document 451 in In re Bank of America California Unemployment Benefits Litigation, Case 3:21-md-02992-GPC-MSB. The bank seeks to seal some exhibits to the declaration of Matthew L. Riffee in their entirety and portions of others, along with references to them in its motion and the parties' prior briefing on apex depositions of high-level executives. The exhibits include the parties' informal letter briefs to Judge Berg on apex depositions, submitted December 16, 2024 and March 7, 2025. The bank argues that the good cause standard applies to sealing documents filed in a discovery dispute, even one about apex depositions.
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“MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 451).”
Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 451. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2025-04-11-gov-uscourts-casd-709615-451-0-gov-uscourts-casd-709615-451-0/
, SHA-256 beaa7150199a11e02ad19aa2cd3680f12d33ca75638b76b19b62fdb0cc636ec7.Full text
Case 3:21-md-02992-GPC-MSB Document 451 Filed 04/11/25 PageID.25810 Page
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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.
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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 DEFENDANT’S MOTION TO
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FILE DOCUMENTS UNDER
SEAL IN SUPPORT OF ITS
19 MOTION FOR A PROTECTIVE
ORDER
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21 Ctrm: 2D – 2nd Floor
22 Judge: Hon. Gonzalo P. Curiel
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 79.2(c),
2 Defendant Bank of America, N.A. (“Defendant” or “BANA”) hereby submits this
3 Motion to File Documents Under Seal (the “Motion”) in connection with Defendant’s
4 Motion for a Protective Order (“Motion for Protective Order”). In particular, BANA
5 seeks to seal Riffee Declaration Exhibits 5–9, 11–14 and 16–17 in their entirety and
6 portions of Riffee Declaration Exhibits 1–4, 10 and 151 because good cause supports
7 sealing of the identified documents, as well as any references to the contents of those
8 exhibits in BANA’s Motion for Protective Order and the Parties’ prior briefing on
9 apex depositions.2
10 As previously stated in BANA’s motions to seal submitted in connection with
11 class certification briefing and argument (ECF 328, 337, 344, 347, 383, 418), the
12 public’s right to inspect and copy judicial records is not absolute, and a party faced
13 with the disclosure of confidential or proprietary information may seek to file the
14 documents under seal to avoid disclosure of business information that might result in
15 competitive harm or be used for improper purposes. See Nixon v. Warner Commc’ns,
16 Inc., 435 U.S. 589, 598 (1978)) (denying disclosure); Local Civ. R. 79.2(c). A party
17 1
The exhibits submitted in support of BANA’s Motion for Protective Order are
18 appended to the Declaration of Matthew L. Riffee (“Riffee Decl.”) and are referred
to herein as the “Riffee Declaration Exhibits.”
19 2
In support of BANA’s Motion for Protective Order, BANA appends as Riffee
Declaration Exhibits 1-4 the Parties’ prior informal letter briefs regarding apex
20 depositions submitted to Judge Berg, including:
21 1) BANA’s initial informal letter brief, submitted December 16, 2024, is “BANA
Apex IDC Letter 1,” which is attached as Exhibit 1 to the Riffee Decl.;
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2) Plaintiffs’ initial informal letter brief, submitted December 16, 2024, is “Pls.
23 Apex IDC Letter 1,” which is attached as Exhibit 2 to the Riffee Decl.;
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3) BANA’s second informal letter brief, submitted March 7, 2025, is “BANA Apex
IDC Letter 2,” which is attached as Exhibit 3 to the Riffee Decl. The 11 exhibits
25 attached to BANA Apex IDC Letter 2 are included in Exhibit 3 to the Riffee
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Decl., and referred to herein as “BANA’s Exhibits”; and
4) Plaintiffs’ second informal letter brief, submitted March 7, 2025, is “Pls. Apex
27 IDC Letter 2,” which is attached as Exhibit 4 to the Riffee Decl. The 53 exhibits
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attached to Pls. Apex IDC Letter 2 are included in Exhibit 4 to the Riffee Decl.,
and referred to herein as “Plaintiffs’ Exhibits.”
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 seeking to seal documents filed in connection with a discovery dispute must show
2 “good cause” to seal documents. Courts in this district have held that the good cause
3 standard applies even where the underlying dispute concerns so-called “apex”
4 depositions of high-level executives, as is the case here. See, e.g., BAE Sys. San
5 Diego Ship Repair Inc. v. United States, 670 F. Supp. 3d 1064, 1069 (S.D. Cal. 2023)
6 (hereinafter “BAE Systems”) (finding “good cause” to seal exhibits filed with motion
7 for protective order).
8 Courts consistently seal documents where—as here—disclosure of the
9 confidential business information risks competitive harm to the litigant or improper
10 use of the information such as to commit fraud. E.g., E.W. Bank v. Shanker, 2021
11 WL 3112452, at *18–19 (N.D. Cal. July 22, 2021) (finding compelling reasons to
12 seal confidential onboarding processes, verification of customer identities, and fraud
13 prevention measures); Soria v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal.
14 Apr. 25, 2019) (finding compelling reasons to seal internal fraud investigation
15 procedures because there was a “significant danger that someone could improperly
16 use this information to commit fraud and avoid detection.”). Indeed, this Court
17 largely granted the Parties’ prior motions to seal, finding good cause or compelling
18 reasons to seal documents concerning the same topics that BANA now seeks to seal,
19 including BANA’s fraud detection and prevention policies and strategies (including
20 the fraud filter), call center operations, prepaid fraud losses, state contract issues,
21 cardholder complaints and escalations, and certain of BANA’s interrogatory
22 responses. See ECF 266, 293, 365, 381, 390, 391, 397, 421 (the “Sealing Orders”).
23 Notably, this Court has previously sealed 13 of the exact same documents at issue
24 here (sealing Pls. Exs. 1, 14, 18, 19, 20, 25 at ECF 266; Pls. Exs. 10, 11, 45, 46, 47,
25 48 at ECF 293; Pls. Exs. 7, 10, 11, 46, 14, 45, 47 and 48 at ECF 365), as well as
26 portions of the deposition transcripts at issue here (sealing portions of Daniels Dep.
27 Tr. (PX 14, DX 98) at ECF 365, 381; Johnson Dep. Tr. (PX 20, DX 29) at ECF 365,
28 381; Letson Dep. Tr. (PX 17, DX 97) at ECF 365, 381; Martin Dep. Tr. (PX 16, DX
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1 122) at ECF 365, 381). See Lundstrom v. Young, 2022 WL 15524624, at *17 (S.D.
2 Cal. Oct. 27, 2022) (J. Curiel) (considering prior sealing of exhibits when granting
3 motion to seal).
4 Consistent with this Court’s Sealing Orders, there is good cause to seal each
5 of the confidential documents, discovery responses and testimony (or portions
6 thereof) filed in connection with BANA’s Motion for Protective Order, and any
7 substantive discussion of those documents contained in BANA’s Memorandum of
8 Points and Authorities in Support of its Motion for Protective Order and the Parties’
9 prior informal briefing of this issue before Judge Berg because each reflects topics
10 that are likely to cause particularized competitive harm to BANA and which could
11 potentially enable future fraud, and thus pose a danger to BANA’s business and the
12 public. See, e.g., EWB, 2021 WL 3112452, at *18–19 (finding compelling reasons
13 to seal where public disclosure of EWB’s confidential onboarding processes,
14 verification of customer identities and fraud prevention measures would “harm [the
15 bank’s] competitive standing”); Soria, 2019 WL 8167925, at *4 (finding compelling
16 reasons to seal bank’s internal procedures for investigating fraud because there was
17 a “significant danger that someone could improperly use this information to commit
18 fraud and avoid detection”). Each document was also properly designated as
19 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” under the Protective
20 Order entered by this Court. See BAE Systems, 670 F. Supp. 3d at 1069 (finding good
21 cause to seal certain exhibits filed in connection with an apex discovery dispute
22 because “information in the exhibits fits within ‘confidential information’ in the
23 protective order”).
24 Specifically, the Confidential and Highly Confidential – Attorneys’ Eyes Only
25 documents and testimony that BANA seeks to seal, include but are not limited to, the
26 following categories of documents and information:
27 Riffee Declaration Exhibits 1–17, Plaintiffs’ Exhibits 3, 11, 15, 20, 41,
28 44, 46, 49 and 51–53, and BANA’s Exhibits 1–4, 6, 8–9 and 11 reflect
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1 confidential BANA fraud prevention strategies and policies that could
2 be misused by fraudsters to perpetrate future fraud or could be used by
3 another financial institution to BANA’s competitive disadvantage. See
4 Amended Sealing Order (ECF 365) at 5–6, 12; Robart Decl. (ECF 347-
5 2) ¶¶ 3–5; Martin Decl. (ECF 347-1) ¶¶ 4–6; see also Cowan v. GE Cap.
6 Retail Bank, 2015 WL 1324848, at *2–3 (N.D. Cal. Mar. 24, 2015)
7 (compelling reasons to seal bank’s internal procedures for investigating
8 fraud and addressing cardholder fraud notifications);
9 Riffee Declaration Exhibits 3–4, 9, 11 and 16, Plaintiffs’ Exhibits 7–9,
10 14, 21, 31, 47–48 and 50, and BANA’s Exhibit 7 reflect confidential
11 BANA analyses pertaining to fraud on prepaid unemployment cards that
12 similarly could be misused by fraudsters to perpetrate future fraud or
13 could be used by another financial institution to BANA’s competitive
14 disadvantage. See Amended Sealing Order (ECF 365) at 5–9, 12;
15 Robart Decl. (ECF 347-2) ¶¶ 3–5; Martin Decl. (ECF 347-1) ¶¶ 4–6; see
16 also Cowan, 2015 WL 1324848, at *2–3 (compelling reasons to seal
17 bank’s internal procedures for investigating fraud and addressing
18 cardholder fraud notifications);
19 Riffee Declaration Exhibits 2–5 and 13, Plaintiffs’ Exhibits 1, 2, 4–6,
20 10, 12–13, 16–19 and 43–45, and BANA’s Exhibits 5 and 10 reflect
21 BANA’s confidential analyses of its state prepaid unemployment
22 program operations, including but not limited to, contractual
23 negotiations, fraud volume, claims and call center operations, and
24 operational risks and losses. See Amended Sealing Order (ECF 365) at
25 10–13, n. 14; Martin Decl. (ECF 344-1) ¶¶ 5, 7–10; Martin Decl. (ECF
26 347-1) ¶¶ 10–12; Robart Decl. (ECF 344-2) ¶ 4; see Brady v. Grendene
27 USA, Inc., 2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) (J. Curiel)
28 (sealing confidential business information that might harm the litigants’
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1 competitive standing including profit and loss data and contractual
2 agreements);
3 Riffee Declaration Exhibit 4 and Plaintiffs’ Exhibit 40 reflects
4 confidential BANA testimony pertaining to BANA’s Remediation Plans
5 with the Office of the Comptroller of the Currency (“OCC”) and the
6 Consumer Financial Protection Bureau (“CFPB”)—which were
7 designated Highly Confidential – Attorneys’ Eyes Only at those
8 regulators’ requests—which this Court has found compelling reasons to
9 seal. Amended Sealing Order (ECF 365) at 14–16; see also Lennon
10 Decl. (ECF 344-3) ¶¶ 3–6; see also Erhart v. BofI Fed. Bank, 2019 WL
11 4534701, at *3 (S.D. Cal. Sept. 19, 2019) (sealing information that the
12 OCC asserted bank examination privilege over but permitted to be
13 produced subject to confidentiality protections); and
14 Riffee Declaration Exhibit 4 and Plaintiffs’ Exhibits 22-30 and 32-39
15 reflect confidential EDD cardholder account or personal information,
16 including personal identifying information, the disclosure of which
17 could expose those cardholders to harm or identity theft. See Amended
18 Sealing Order (ECF 365) at 16; Sealing Order (ECF 381) at 1; see also
19 Robart Decl. (ECF 347-2) ¶¶ 3–8; see also Stiner v. Brookdale Senior
20 Living, Inc., 2022 WL 1180216, at *2 (N.D. Cal. Mar. 30, 2022) (sealing
21 documents containing employees’ personally identifying information
22 like names, email addresses, and phone numbers). Those exhibits also
23 reflect the types of claims files or information that BANA considers in
24 connection with investigating and processing unauthorized transaction
25 and error claims. See Robart Decl. (ECF 347-2) ¶¶ 3–8. Further
26 compelling reasons exist to seal that information because the disclosure
27 of that information could provide potential fraudsters with insight into
28 BANA’s confidential claims processes or procedures, thereby enabling
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1 fraudsters to circumvent them and perpetrate future fraud, and
2 disclosure could also enable other financial institutions to use that
3 information to BANA’s competitive disadvantage. See id.
4 BANA has also provisionally redacted and sealed portions of the Parties’
5 briefing (see Motion for Protective Order; Riffee Decl. Exs. 1–4) and excerpted
6 deposition testimony in whole or in part (see Riffee Decl. Exs. 5–6, 8–17) that quote
7 or describe the confidential documents, testimony and topics identified above,
8 including BANA’s fraud analyses and strategies and BANA’s analyses of its state
9 prepaid unemployment program operations, including contractual negotiations, fraud
10 volume, claims and call center operations, and operational risks and losses, among
11 other topics. See supra at 3-6. This is consistent with the terms of the Stipulated
12 Protective Order (ECF 82, § 3), with this Court’s prior Sealing Orders (ECF 365,
13 381, 390), and with rulings in this Circuit. See, e.g., Darisse v. Nest Labs, Inc., 2016
14 WL 11474174, at *2 (N.D. Cal. June 2, 2016) (sealing class certification motion and
15 declarations that quote or reference confidential exhibits). For the reasons discussed
16 above, there is good cause to seal discussions of those topics, testimony and
17 documents discussed in the Parties’ briefing. See supra at 1–3.
18 * * *
19 For the foregoing reasons and for the reasons set forth in the Court’s Sealing
20 Orders in connection with class certification briefing and argument (ECF Nos. 365,
21 381, 390, 391, 397, 421), Plaintiffs’ Motions to Seal (ECF Nos. 376, 384, 394),
22 BANA’s prior Motions to Seal (ECF Nos. 328, 337, 344, 347, 383, 418) and
23 accompanying declarations submitted in support thereof (ECF Nos. 344-1, 344-2,
24 344-3, 347-1, 347-2), all of which are incorporated herein by reference, BANA
25 respectfully requests that the Court grant Defendant’s Motion to Seal Documents
26 Filed In Support of its Motion for Protective Order because good cause supports
27 sealing thereof.
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 Dated: April 11, 2025 Respectfully submitted,
2 By: s/ Matthew L. Riffee__________________
3 MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
4 THOMAS M. HEFFERON (pro hac vice)
THefferon@goodwinlaw.com
5 SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
6 GOODWIN PROCTER LLP
1900 N St. NW
7 Washington, DC 20036
Tel: +1 202 346 4000
8 Fax: +1 202 346 4444
9 JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
10 GOODWIN PROCTER LLP
100 Northern Avenue
11 Boston, MA 02210
Tel.: +1 617 570 1000
12 Fax: +1 617 523 1231
13 LAURA G. BRYS (SBN 242100)
LBrys@goodwinlaw.com
14 GOODWIN PROCTER LLP
601 S Figueroa St., Suite 4100
15 Los Angeles, CA 90017
Tel.: +1 213 426 2500
16 Fax: +1 617 346 4444
17 VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
18 LINDSAY E. HOYLE (pro hac vice)
LHoyle@goodwinlaw.com
19 GOODWIN PROCTER LLP
620 Eighth Avenue
20 New York, NY 10018
Tel: +1 212 813-8800
21 Fax: +1 212 355-3333
22 YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
23 JONES DAY
100 High Street
24 Boston, MA 02110
Tel.: +1 617 960 3939
25 Fax: +1 617 449 6999
26 JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
27 MATTHEW B. NAZARETH (SBN
278405)
28 mnazareth@myersnave.com
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1 MEYERS NAVE
600 B Street, Suite 1650
2 San Diego, CA 92101
3 Attorneys for Defendant
BANK OF AMERICA, N.A.
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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 April 11, 2025. 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: April 11, 2025 s/ Matthew L. Riffee
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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