Court filing
Memo of Points and Authorities — Bofa Ca Unemployment (Dkt. 453.1)
Record facts
| Court | U.S. District Court for the Southern District of California |
|---|---|
| Filed | 2025-04-11 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 453-1 · 2025-04-11 · Docket on CourtListener
Summary
A memorandum of points and authorities filed by defendant Bank of America, N.A. supporting its motion for a protective order, filed April 11, 2025 as Document 453-1 in In re: Bank of America California Unemployment Benefits Litigation, Case No. 21-MD-02992-GPC-MSB, in the U.S. District Court for the Southern District of California. The brief asks the court to preclude depositions of two of the bank's top executives under the apex doctrine, citing Federal Rules of Civil Procedure Rule 26(c)(1). It argues that neither has unique, non-repetitive firsthand knowledge of the facts at issue and that the plaintiffs chose to forgo less intrusive discovery methods. It recounts earlier briefing over electronically stored information discovery and states that nearly 270,000 documents were produced and 15 depositions taken. The document is 30 pages and was filed provisionally under seal.
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MEMORANDUM OF POINTS & AUTHORITIES ISO
DEFENDANT’S MOT. FOR A PROTECTIVE ORDER CASE NO.: 3:21-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
DEFENDANT BANK OF
AMERICA, N.A.’S
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF DEFENDANT’S
MOTION FOR A PROTECTIVE
ORDER
Ctrm:
2D – 2nd Floor
Judge:
Hon. Gonzalo P. Curiel
FILED PROVISIONALLY UNDER SEAL
PURSUANT TO STIPULATED PROTECTIVE
ORDER
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TABLE OF CONTENTS
BACKGROUND ....................................................................................................... 2
I.
Plaintiffs’ Efforts to Secure ESI Discovery from the Apex Executives. .......... 2
II.
Plaintiffs’ Efforts to Secure Depositions of the Apex Executives. ................... 5
LEGAL STANDARD ............................................................................................... 8
ARGUMENT ............................................................................................................. 9
I.
Mr. Moynihan Has No Unique Knowledge of the Issues in This Case. ......... 11
II.
Mr. Montag Has No Unique Knowledge of the Issues in This Case. ............. 19
III.
Plaintiffs Chose to Forgo Less Intrusive Discovery Methods. ........................ 22
CONCLUSION ....................................................................................................... 24
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TABLE OF AUTHORITIES
Page(s)
Cases
Affinity Labs of Texas v. Apple,
2011 WL 1753982 (N.D. Cal. May 9, 2011) ................................................. 9, 22
Apple Inc. v. Samsung Electronics Co., Ltd.,
282 F.R.D. 259 (N.D. Cal. 2012) ......................................................................... 8
Celerity, Inc. v. Ultra Clean Holding, Inc.,
2007 WL 205067 (N.D. Cal. Jan. 25, 2007) .............................................. 1, 8, 22
Davis v. Pinterest, Inc.,
2021 WL 11117688 (N.D. Cal. May 27, 2021) ................................................. 15
In re Google Litig.,
2011 WL 4985279 (N.D. Cal. Oct. 19, 2011) ............................................ 1, 9, 23
Greer v. Cnty. of San Diego,
2022 WL 2134601 (S.D. Cal. June 14, 2022) ...................................................... 9
K.C.R. v. County of Los Angeles,
2014 WL 3434257 (C.D. Cal. July 11, 2014) ................................................ 9, 24
Kadrey v. Meta,
2024 WL 4293910 (N.D. Cal. Sept. 24, 2024) ................................................... 23
Mehmet v. PayPal, Inc.,
2009 WL 921637 (N.D. Cal. Apr. 3, 2009) ....................................................... 22
Metabyte, Inc. v. Meta Platforms, Inc.,
2025 WL 799040 (N.D. Cal. Mar. 13, 2025) ..................................................... 23
Pilot, Inc. v. Cub Elecparts, Inc.,
2015 WL 13918235 (C.D. Cal. Dec. 7, 2015) ................................................... 24
Court Rules
Federal Rules of Civil Procedure Rule 26(c)(1) ........................................................ 8
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Bank of America, N.A. (“BANA”) requests a protective order precluding the
depositions of its two top executives—current Chief Executive Officer (“CEO”)
Brian Moynihan and former Chief Operating Officer (“COO”) Thomas Montag.
The “tremendous potential for abuse or harassment” associated with
deposition notices to executives at “the highest level or ‘apex’ of corporate
management” is undisputed. Celerity, Inc. v. Ultra Clean Holding, Inc., 2007 WL
205067, at *3 (N.D. Cal. Jan. 25, 2007). The deposition notices of Messrs. Moynihan
and Montag are no exception, particularly given Plaintiffs’ confessed desire to push
settlement via executive discovery. To prevent such abuse or harassment, in order to
satisfy the “apex doctrine,” courts have held that a party seeking such a deposition
must show—with evidence—that the executives have “unique firsthand, non-
repetitive knowledge of the facts at issue in the case.” In re Google Litig., 2011 WL
4985279, at *2 (N.D. Cal. Oct. 19, 2011) (emphasis added). Despite the extensive
record available to Plaintiffs here, they cannot do so.
Plaintiffs argue that the apex depositions are necessary because they believe
the executives purportedly “dr[ove] and ultimately made” and “w[ere] at the center
of the Bank’s” decisions and policies regarding the fraud filter and customer service
issues underlying Plaintiffs’ claims, and because the executives purportedly have
unique knowledge about these issues relevant to Plaintiffs’ punitive damages claim
that Plaintiffs can only ascertain by taking their depositions. Plaintiffs previously
were able to secure ESI discovery from Messrs. Moynihan and Montag based on this
same speculation—that the documents would show that Mr. Moynihan and/or
Mr. Montag approved, directed, or ratified the use of the fraud filter or the staffing
of the prepaid claims call center with the requisite ill-intent necessary to satisfy the
standard for punitive damages.
But the two top executives’ ESI revealed what BANA has been saying all
along: Messrs. Moynihan and Montag did not drive or ultimately make any decisions
regarding the fraud filter or the call center, and neither Mr. Moynihan nor Mr. Montag
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has any unique or non-repetitive knowledge concerning any facts at issue in this case,
including those relevant to Plaintiffs’ request for punitive damages. Indeed, after
almost two years of discovery, receiving nearly 270,000 documents, and taking 15
depositions, Plaintiffs still cannot support, with evidence, their claims that Messrs.
Moynihan and Montag were uniquely involved in the issues of this case. If Plaintiffs
are allowed to proceed on this record, it would essentially write the apex doctrine out
of existence every time a plaintiff seeks punitive damages from a corporate
defendant. That is not—and cannot be—the law. Plaintiffs must show more to
satisfy the apex doctrine’s requirements. They have not—and cannot—do so here.
BACKGROUND
I.
Plaintiffs’ Efforts to Secure ESI Discovery from the Apex Executives.
The parties’ dispute with respect to discovery from Messrs. Moynihan and
Montag began in the fall of 2023, when Plaintiffs first indicated they intended to seek
ESI documents from their custodial files. Declaration of Matthew L. Riffee (“Riffee
Decl.”), Ex. No. 1, BANA Apex IDC Ltr. 1. The issue was discussed over the course
of several informal discovery conferences, including one during which Plaintiffs’
counsel candidly told Magistrate Judge Berg that top executive emails were
necessary because “they resolve cases,” “they settle cases.” McGarry Decl. ISO
BANA Dis. Ct. ESI Br., Dkt. 209-1 ¶ 10.
On January 23, 2024, Plaintiffs filed a motion to compel ESI discovery from
Messrs. Moynihan and Montag. See Pls. MJ ESI Br.1 On April 24, 2024, Judge Berg
1 The parties collectively filed seven formal briefs and the Court issued two orders
regarding Plaintiffs’ request for ESI discovery from Messrs. Moynihan and Montag.
With respect to the parties’ briefing of the ESI issue before Judge Berg:
1) BANA’s Mem. of Points and Authorities in Support of Defendant’s Motion to
Preclude Additional ESI Discovery, Dkt. 209, is “BANA MJ ESI Br.”;
2) Plaintiffs’ Opening Brief in Support of Mot. to Compel Additional ESI
Custodians, Filed Under Seal at Dkt. 212, is “Pls. MJ ESI Br.”;
3) BANA’s Mem. of Points and Authorities in Opposition to Plaintiffs’ Motion to
Compel Additional ESI Custodians, Dkt. 214, is “BANA MJ ESI Opp.”;
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issued an order denying Plaintiffs’ request, finding that Plaintiffs had not
demonstrated that either Mr. Moynihan or Mr. Montag were likely to have uniquely
relevant information that was not available from sources already designated. MJ ESI
Order at 8–9. In that order, Judge Berg explicitly disagreed with Plaintiffs’
characterizations of the documents they presented in support of their motion
(characterizations Plaintiffs continue to make today). Id. For example, with respect
to an exhibit that Plaintiffs said shows that
Pls. MJ ESI Opp. at 2, Judge Berg noted that “the document
merely reveals that a BANA employee asked whether Moynihan approved moving
forward, to which an existing custodian responded, ‘we are freezing all the
atm/combo cards but that’s all we have approval for.’” MJ ESI Order at 8. Judge
Berg concluded that the document “does not indicate who approved the freezing, let
alone if Moynihan did so.” Id. (emphasis in original). And with respect to documents
Plaintiffs cited that they said showed Mr. Moynihan presented on “key issues” at
Board meetings, Judge Berg concluded that Mr. Moynihan did not possess any
unique information because Plaintiffs already had all relevant Board materials. Id.
Judge Berg found Plaintiffs’ arguments about Mr. Montag’s documents similarly
unpersuasive. See id. at 8–9.
4) Plaintiffs’ Opp. to Defendant’s Mot. to Preclude Additional ESI Discovery,
Filed Under Seal at Dkt. 215, is “Pls. MJ ESI Opp.”; and
5) Magistrate Judge Berg’s Discovery Order, Dkt. 268 is “MJ ESI Order.”
With respect to Plaintiffs’ appeal of Judge Berg’s ESI Order to this Court:
6) Plaintiffs’ Mem. of Points and Authorities in Support of Plaintiffs’ Objections
to and Motion to Reverse in Part Magistrate Judge’s April 24, 2024 Discovery
Order, Filed Under Seal at Dkt. 278-1, is “Pls. Dist. Ct. ESI Br.”;
7) BANA’s Mem. of Points and Authorities in Opposition to Plaintiffs’ Objections,
Dkt. 287, is “BANA Dist. Ct. ESI Br.”;
8) Plaintiffs’ Reply in Support of Plaintiffs’ Objections, Filed Under Seal at Dkt.
292, is “Pls. Dist. Ct. ESI Reply”; and
9) The Court’s Order Sustaining Plaintiffs’ Objections and Granting Plaintiffs’
Motion, Dkt. 298, 2024 WL 3174874 (Jun. 25, 2024) is “Dist. Ct. ESI Order.”
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On May 8, 2024, Plaintiffs filed a motion to reverse Judge Berg’s order on
grounds that he incorrectly applied the more stringent “apex doctrine” rather than the
lesser Rule 26 proportionality standard, and that Messrs. Moynihan and Montag’s
ESI was likely to be uniquely relevant to Plaintiffs’ claim for punitive damages. Pls.
Dist. Ct. ESI Br. at 3. BANA opposed on numerous grounds, including because
Plaintiffs acknowledged they were seeking discovery from Messrs. Moynihan and
Montag not because the executives were actually involved in the issues in the case,
but to try to pressure BANA to settle. See BANA Dist. Ct. ESI Br. at 2; see also
McGarry Decl. ISO BANA Dis. Ct. ESI Br., Dkt. 209-1 ¶ 10.
On June 25, 2024, the Court reversed Judge Berg’s ESI order. Dist. Ct. ESI
Order, at *1. The Court’s Order contained no specific findings about Plaintiffs’
proffered exhibits, noting only that the Court “exercises its discretion and considers
them.” Id. at *5. The Court further explained that it granted Plaintiffs’ motion for
the limited reason that “ESI from Moynihan and Montag concerning [Plaintiffs’
claim for] punitive damages can only be obtained by them, and not from sources
already designated.” Id. at *11 (emphasis added). In particular, the Court found that
“[a]t trial, Plaintiffs will need evidence of motive, intent, or knowledge and
ratification by an officer, director, or managing agent to support an award of punitive
damages,” and therefore “important for [Plaintiffs’ claim for] punitive damages is
what Moynihan and Montag ‘knew about the [fraud filter], its impact on legitimate
EDD cardholders, when they knew it, what action they directed, authorized, or
ratified, and why.” Id (quoting Pls. Dist. Ct. ESI Br. At 15–16).
A few weeks later, BANA produced ESI from Messrs. Moynihan’s and
Montag’s custodial files. Riffee Decl. ¶ 6. Far from substantiating Plaintiffs’
speculation, the ESI discovery confirmed that it was unnecessary in the first place.
The collection of Messrs. Moynihan’s and Montag’s custodial files only resulted in
the production of 556 of the nearly 270,000 documents BANA has produced to
Plaintiffs. Id. ¶¶ 5–6. And, as BANA predicted and explained to Plaintiffs, the
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and the parties engaged in informal briefing before Judge Berg.4 Id. ¶¶ 23–24. On
December 23, 2024, Judge Berg issued a tentative ruling granting BANA’s request
because Plaintiffs had not satisfied the apex doctrine’s requirement to exhaust efforts
to take discovery through less burdensome means. Id. ¶ 25. Judge Berg ruled that
Plaintiffs must take depositions of certain witnesses that BANA identified as
involved in the development, approval, and implementation of the fraud filter before
he would reconsider Plaintiffs’ request to depose BANA’s two top executives. Id.
Plaintiffs thereafter deposed six additional witnesses—each of whom was involved
in the development, approval, and/or implementation of the fraud filter. Riffee Decl.
¶ 26; see also id. Ex. 7, BANA’s Interrog. Resp. No. 11. Specifically, Plaintiffs
deposed Faiz Ahmad (Head of Global Transaction Services (“GTS”), ultimately
responsible for the prepaid card business, and who reported up to Mr. Montag),
Jennifer Ehresman (Head of Consumer Client Protection, the group responsible for
overseeing claims), William Fox (former Director of the Financial Crimes
Enforcement Network (“FinCEN”) and Global Head of Global Financial Crimes
(“GFC”), the group primarily responsible for the development of the fraud filter),
Anne Holt (Director of GFC), Melissa (Gargagliano) Ramirez (a business banking
operations executive in Commercial Card Fulfillment, Service, & Operations), and
Paul Simpson (Managing Director of Global Operations). Riffee Decl. ¶¶ 10–11;
4 The parties collectively filed four informal letter briefs regarding the apex
depositions:
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.;
2) Plaintiffs’ initial informal letter brief, submitted December 16, 2024, is “Pls.
Apex IDC Letter 1,” which is attached as Exhibit 2 to the Riffee Decl.;
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.; and
4) Plaintiffs’ second informal letter brief, submitted March 7, 2025, is “Pls. Apex
IDC Letter 2,” which is attached as Exhibit 4 to the Riffee Decl. The 53 exhibits
attached to Pls. Apex IDC Letter 2 are included in Exhibit 4 to Riffee Decl., and
referred to herein as “Plaintiffs’ Exhibits.”
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Ruiz Decl. ¶¶ 16–21.5 During these depositions, Plaintiffs made strategic choices
about which documents to show the witnesses and which questions to ask. Not a
single witness provided testimony supporting Plaintiffs’ assertion that Messrs.
Moynihan and Montag have the uniquely relevant information required by the apex
doctrine, much less that they were at the center of, drove, or ultimately made any
decisions regarding the fraud filter or call center policies. To the contrary, Mr.
Ahmad definitively told Plaintiffs that
. See infra
at 16–17. Having made choices about who to depose and what to ask, Plaintiffs
cannot not use the holes in their own discovery record—caused by their own strategic
decisions—to justify these depositions.
Upon renewal of BANA’s request for a protective order, the parties engaged
in a second round of informal briefing for a discovery conference before Judge Berg
on March 12, 2025. Riffee Decl. ¶ 30. Despite lacking evidence, Plaintiffs continued
to argue that the executives “dr[ove] and ultimately made” and “w[ere] at the center
of the Bank’s” decisions and policies regarding the fraud filter and call centers. Pls.
Apex IDC Letter 2 at 2, 3. In support of their arguments, Plaintiffs cited 53 exhibits,
recycling the 46 ESI documents they cited in their first apex IDC letter brief, and
including excerpts from the transcripts of seven depositions. See generally id. Many
of the 46 ESI documents were also the same or similar as those previously cited in
Plaintiffs’ ESI brief. Compare Plaintiffs’ Exhibits 1–48 with Pls. Dist. Ct. ESI Br.
Exs. 2, 7, 11, 13, 15, 25–28, 34. At the March 12, 2025 discovery conference, Judge
Berg issued a second tentative ruling allowing Plaintiffs to depose Mr. Moynihan for
two hours and Mr. Montag for one hour, with both depositions limited to the issue of
5 The depositions of the Head of Commercial Cards Product Management, Bradley
Garfield, and a GFC specialist, Ryan Schwartz, (Ruiz Decl. ¶¶ 14–15) occurred
during the time period between Plaintiffs’ October 11, 2024 apex deposition notice
and Judge Berg’s December 23, 2024 tentative ruling, for a total of 15 depositions
taken by Plaintiffs. Riffee Decl. ¶¶ 10–11.
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punitive damages (Riffee Decl. ¶ 30)—which this Court previously said would
include discovery as to “what Moynihan and Montag ‘knew about the [fraud filter],
its impact on legitimate cardholders, when they knew it, what action they directed,
authorized, or ratified, and why.” Dist. Ct. ESI Order at *11 (quoting Pls. Dist. Ct.
ESI Br. at 15–16). In so ruling, Judge Berg found no reason for either executive to
sit for a lengthy deposition given the dearth of evidence in the record concerning any
unique, non-repetitive knowledge they may have. Riffee Decl. ¶ 30. Plaintiffs
unilaterally rejected the tentative ruling. Riffee Decl. ¶ 31.
Previously, this Court directed that should either party wish to challenge Judge
Berg’s tentative ruling, the dispute regarding apex depositions may be raised directly
to the District Court, rather than through formal briefing before the Magistrate Judge.
Riffee Decl. ¶ 27. On March 28, 2025, the District Court accepted the parties’
proposed briefing schedule for this motion. See Dkt. 417.
LEGAL STANDARD
“Virtually every court that has addressed deposition notices directed at an
official at the highest level or ‘apex’ of corporate management has observed that such
discovery creates a tremendous potential for abuse or harassment.” Celerity, Inc.
2007 WL 205067, at *3; see also Apple Inc. v. Samsung Electronics Co., Ltd., 282
F.R.D. 259, 263 (N.D. Cal. 2012). To curb the potential for abuse, courts have
developed the so-called “apex doctrine,” pursuant to which courts routinely exercise
the discretion afforded by Rule 26(c)(1) of the Federal Rules of Civil Procedure to
forbid an executive deposition or limit its scope. See Apple, 282 F.R.D. at 262–63.
Courts have accordingly required the party seeking an apex deposition to show that
(1) the deponent has “unique first-hand, non-repetitive knowledge of the facts at issue
in the case,” and (2) the party has “exhausted other less intrusive discovery methods.”
In re Google Litig., 2011 WL 4985279, at *2; see also Greer v. Cnty. of San Diego,
2022 WL 2134601, at *3 (S.D. Cal. June 14, 2022) (precluding apex depositions
because “Plaintiff has not shown that [the witness] has any unique, first-hand
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knowledge of the specific circumstances at issue”) (emphasis added); Ramirez v.
Zimmerman, WL 2106594, at *6 (S.D. Cal. May 14, 2019) (party seeking deposition
“must show” that requirements of the apex doctrine are met) (emphasis added), aff’d
sub nom. Cervantes v. San Diego Police Chief Zimmerman, 2019 WL 3072307 (S.D.
Cal. July 15, 2019), aff’d sub nom. Ramirez v. Zimmerman, 2021 WL 5104371 (9th
Cir. Nov. 3, 2021).
ARGUMENT
There is no dispute that Messrs. Moynihan and Montag are “clearly high-level
executives whose depositions must satisfy the ‘apex’ requirements.” In re Google
Litig., 2011 WL 4985279, at *2. Mr. Moynihan has been BANA’s CEO since
January 2010, and the Chairman of its Board of Directors since October 2014.6 Ruiz
Decl. ¶ 5. Mr. Montag was BANA’s second-in-line executive, with the title of COO
and President of Global Banking and Markets, until December 2021,7 and is now the
CEO of Rubicon Carbon. Ruiz Decl. ¶ 6. “Where a high-level decision maker
removed from the daily subjects of the litigation has no unique personal knowledge
of the facts at issue, a deposition of the official is improper.” Affinity Labs of Tex. v.
Apple, 2011 WL 1753982, at *15 (N.D. Cal. May 9, 2011) (internal quotations
omitted). The apex standard for depositions is different and higher than the one that
applies to disputes about ESI discovery—a distinction that Plaintiffs concede. See
Pls. Dist. Ct. ESI Br., at 15–17 (referring to “heightened apex doctrine standard” for
depositions). Plaintiffs were able to obtain ESI discovery from Messrs. Moynihan
and Montag by arguing that their documents might reveal unique information
relevant to Plaintiffs’ claim for punitive damages. See Pls. Dist. Ct. ESI Br. at 2. But
6 BANA is a wholly owed subsidiary of Bank of America Corporation (“BAC”).
Ruiz Decl. ¶ 4.
7 The apex doctrine protects executives “even after leaving office.” K.C.R. v. County
of Los Angeles, 2014 WL 3434257, at *3 (C.D. Cal. July 11, 2014).
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speculation that an apex executive might have unique information is insufficient to
satisfy the apex doctrine’s more stringent requirements.
Under the lesser standard for ESI discovery, the Court found that Plaintiffs had
sufficiently alleged for ESI purposes that Messrs. Moynihan and Montag may have
“uniquely relevant information that is not available from the sources already
designated” only “concerning punitive damages.” Dist. Ct. ESI Order at *11.
Specifically, the Court allowed Plaintiffs to pursue documentary support for their
unsubstantiated claims that Messrs. Moynihan and Montag would possess unique
documents that show the executives “knew about the [fraud filter], its impact on
legitimate EDD cardholders, when they knew it, what action they directed,
authorized, or ratified, and why.” Id., quoting Pls. Dist. Ct. ESI Br. at 15–16.
Ultimately, the top executives’ ESI failed to support Plaintiffs’ speculative
claims. Indeed, despite the receipt of nearly 270,000 documents, significant written
discovery, and testimony from 15 BANA witnesses (Riffee Decl. ¶ 10–11), Plaintiffs
still have not offered any evidence suggesting that either Mr. Moynihan or Mr.
Montag has the uniquely relevant information Plaintiffs hoped to find. BANA told
Plaintiffs via written discovery responses that other BANA personnel (not Messrs.
Moynihan and Montag) developed, implemented, and approved the policies Plaintiffs
challenge. Riffee Decl. Ex. 7, BANA’s Interrog. Resp. No. 11. The witnesses
Plaintiffs have deposed have told Plaintiffs the same, and the documentary record—
including ESI discovery from the top executives themselves—confirms as much.
And there is certainly no evidence in the vast record suggesting that either executive
“directed, authorized, or ratified” the policies Plaintiffs challenge with the requisite
ill-intent—as Plaintiffs must show to be entitled to punitive damages, which is the
sole purpose for which Plaintiffs were permitted ESI discovery and currently seek
these depositions. See Dist. Ct. ESI Order at *11; Pls’ Apex IDC Letter 2.
At this point, Plaintiffs’ purported belief that Messrs. Moynihan and Montag
have unique information about their case is based on nothing more than unfounded
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speculation that has been refuted by documents and testimony, and an effort to push
the Bank into a settlement. There is nothing in the documents or testimony that
suggests these depositions are warranted. The apex doctrine exists to protect high
level executives against this very type of speculative inquiry.
I.
Mr. Moynihan Has No Unique Knowledge of the Issues in This Case.
The documents submitted with Plaintiffs’ latest IDC letter brief—i.e., their
best evidence—underscore Mr. Moynihan’s lack of involvement, and make clear that
Plaintiffs cannot meet the apex doctrine’s requirement that they show Mr. Moynihan
has unique knowledge about the fraud filter or call center staffing, let alone that he
provided any direction or approval on these issues with the requisite ill-intent to
support Plaintiffs’ claim for punitive damages. Plaintiffs submitted 46 ESI exhibits,
40 of which related to Mr. Moynihan. See Pls. IDC Ltr. Br. Only one was Mr.
Moynihan’s custodial document (Plaintiffs’ Exhibit 15). Riffee Decl. ¶ 29e. Exhibit
15 is
. At most, this document shows that
See Pls. IDC Ltr. Ex. 15.
See
id. And it certainly does not indicate that Mr. Moynihan possesses unique knowledge
or approved, directed, or ratified any actions with the requisite intent for punitive
damages. Further, Plaintiffs deposed Ms. Ehresman, yet elected not to ask her a
single question about
. Riffee
Decl. ¶¶ 29f–g. Having made strategic choices during Ms. Ehresman’s deposition,
Plaintiffs cannot now use this document as the basis to seek Mr. Moynihan’s
deposition. This does not meet the heightened apex standard.
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The remaining ESI exhibits Plaintiffs cited fare no better. Plaintiffs’ Exhibits
1–3 are
—i.e., his knowledge was not unique. Notably, each of these documents
Nor is there any
indication that Mr. Moynihan or the Board approved or ratified the continued use of
the fraud filter—much less that they did so with ill-intent. Plaintiffs cannot speculate
unique knowledge of Board involvement into existence.8
Plaintiffs’ Exhibits 4–21 do not reflect any direct conversations or emails with
Mr. Moynihan, and therefore say nothing about his knowledge. Many are
Plaintiffs had the opportunity to
depose and ask the individuals who prepared or sent these documents whether they
were provided to Mr. Moynihan, or whether they ever had any discussions with Mr.
Moynihan regarding the documents. In most cases, Plaintiffs either chose not to ask
the questions, or chose not to depose the individual altogether. See, e.g., Riffee Decl.
¶¶ 29a–d & f–h, 20–22; supra at 11; infra at 21–23. When Plaintiffs did ask about
several of these documents, witnesses testified that
See, e.g., Riffee Decl. Ex. 8, Ehresman Tr.
94:9–95:9 (
); id. Ex. 16, Holt Tr. 107:24–
109:25 (
8 As Judge Berg found in connection with Plaintiffs’ ESI requests, Plaintiffs have
long had all of the relevant Board materials. MJ ESI Order at 8. Plaintiffs cannot
identify any evidence in those materials that could prove, much less suggest, that Mr.
Moynihan or the Board possess unique knowledge concerning the fraud filter or any
other issues relevant to their punitive damages claim.
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Deposition testimony from Mr. Ahmad
Riffee Decl. Ex. 5, Ahmad Tr.
125:15–127:4, 134:5–135:11. Moreover, Mr. Fox, the former Head of GFC (the
group responsible for the development of the fraud filter),
Riffee Decl. Ex. 9, Fox Tr. 33:24–34:1, 32:12–15. Despite having knowledge of this
document since early 2024, as evidenced by the fact that they cited it in their ESI
brief (see Pls. MJ ESI Br., Dkt. 212-13), Plaintiffs never sought to depose Mr. Firpi,
or otherwise verify his claim. And even if
,
that would not show unique knowledge of issues relevant to Plaintiffs’ claim for
punitive damages because there is no evidence whatsoever that
.
As yet another example, Plaintiffs’ Exhibit 14 merely shows
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resolving any complaints. See Plaintiffs’ Exhibits 22–39 (
); Riffee Decl. Ex. 5, Ahmad Tr. at 366:25–370:16 (
).11
Plaintiffs’ failure to show that Mr. Moynihan possesses uniquely relevant
information comes as no surprise. In response to written discovery requests, BANA
identified 13 executives and managers who were primarily responsible for making
decisions regarding the issues in this case—Messrs. Moynihan and Montag were not
among them. Riffee Decl. Ex. 7, BANA’s Interrog. Resp. No. 11. Plaintiffs deposed
eight of the 13 executives and managers identified by BANA, and had an opportunity
to ask them about the documents Plaintiffs say support their apex requests. Compare
id. with Riffee Decl. ¶¶ 10–11, 16–20. Not a single witness’ testimony suggests that
Mr. Moynihan actually possesses unique, non-repetitive knowledge, much less the
“evidence of motive, intent, or knowledge and ratification” that Plaintiffs would need
“to support an award of punitive damages.” Dist. Ct. ESI Order at *11.
Rather, these witnesses—who were extensively involved in decisions at the
core of Plaintiffs’ claims—consistently testified that
:
• Faiz Ahmad, Head of GTS (Ruiz Decl. ¶ 17), and the executive primarily
responsible for the prepaid card business, testified that
(Riffee Decl. Ex. 5, Ahmad Tr. 244:18–22),
(id.
11 Plaintiffs’ final ESI document regarding Mr. Moynihan (Plaintiffs’ Exhibit 42) is
a public letter from the California state legislature, and says nothing about whether
Mr. Moynihan has unique knowledge about this case. (Plaintiffs’ Exhibits 40-41 and
50-53 are deposition transcripts; Plaintiffs’ Exhibits 43-48 are ESI documents
regarding Mr. Montag, and are discussed in Section II, infra.)
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93:25–94:9), and
(id.
94:10–20).
• Paul Simpson, Managing Director of Global Operations (Ruiz Decl. ¶ 21),
testified,
(Riffee Decl. Ex. 13, Simpson Tr. 88:8–19),
(id. 106:16–107:12), and—indeed—
(id.
46:1–17).
• William Fox, the FinCEN Director and Head of GFC (Ruiz Decl. ¶ 19),
testified that
(see
Riffee Decl. Ex. 9, Fox Tr. 43:13–44:11),
(see id.), and that
(Riffee Decl. Ex. 9, Fox Tr. 27:20–23). He also testified that
(id. 34:10–15).
• Michael Letson, Managing Director for GFC (Ruiz Decl. ¶ 10), testified
(Riffee Decl. Ex. 14, Letson Tr. 280:12–16).
• Brad Garfield, Head of Commercial Cards Product Management (which
included EDD prepaid cards at the time) (Ruiz Decl. ¶ 15), testified
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Montag.” Pls. Apex IDC Letter Brief 2 at 3. The Court should reject this argument
entirely. Plaintiffs have not proffered a single fact to support this outrageous
allegation. Instead, as the documents show, the CEO of one of the world’s largest
financial institutions was not involved in decisions about the fraud filter, call center
staffing, or anything else relevant to Plaintiffs’ punitive damages claim.
Plaintiffs’ contention that the absence of deposition testimony supporting their
argument somehow is evidence that Mr. Moynihan has unique, non-repetitive
knowledge of Plaintiffs’ claims is circular, and also easily dispensed with. See Pls.
Apex IDC Letter Brief 2 at 3. Plaintiffs focus on the fact that the Court allowed them
executive ESI discovery to attempt to prove what Messrs. Moynihan and Montag
“knew about the [fraud filter], its impact on legitimate EDD cardholders, when they
knew it, what action they directed, authorized, or ratified, and why,” (id., quoting
Dist. Ct. ESI Order at *11). But the executive ESI (and all the other evidence) shows
that Mr. Moynihan “knew” nothing unique about the fraud filter or any other key
issue, and “directed, authorized, or ratified” nothing with respect to the same. What
Plaintiffs seem to fail to appreciate is that the apex doctrine requires them to show
more than the speculative possibility that an executive deposition may shed light on
these questions. They cannot do it, so their request to depose Mr. Moynihan should
be denied.
II.
Mr. Montag Has No Unique Knowledge of the Issues in This Case.
Discovery has likewise confirmed that Mr. Montag has no unique, non-
repetitive knowledge that would support Plaintiffs’ claim for punitive damages. The
lack of such evidence is underscored by the fact that Plaintiffs point to only six ESI
exhibits that they claim show Mr. Montag possesses the requisite knowledge for a
deposition. Pls. Apex IDC Letter 2, at 2–3. But none of these documents satisfy the
apex doctrine.
Plaintiffs’ Exhibit 43, which Plaintiffs say
(id. at 2), on its face shows that
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Plaintiffs’ Exhibit 44 is
Plaintiffs’ Exhibit 45
Plaintiffs claim
that this document shows that
Pls. Apex IDC Letter 2 at 3. Taken in context, it does no
such thing, and merely
Indeed, Mr. Ahmad, the executive responsible for the
prepaid card business, one of the recipients of
Plaintiffs’
Exhibit 45, and his direct report, testified that
Riffee Decl. Ex. 5, Ahmad Tr. 109:10–111:10. And in any
event,
see Dkt. 225-2, ¶¶ 3–4), is irrelevant to
Plaintiffs’ punitive damages claim, as it cannot show that Mr. Montag (or anyone
else) took any action regarding the fraud filter or the call center with intent or
knowledge of harm.
Plaintiffs’ Exhibits 46 and 47 are
Plaintiffs’ Exhibit 46 is another iteration of Plaintiffs’ Exhibit 11, discussed
supra at 13, and suffers from the same flaws:
the fact that Mr. Montag or Mr. Moynihan may have discussed
does not mean they have unique knowledge about the fraud filter (which is not
discussed in either Exhibit 11 or 46), or that they directed, approved, or ratified its
use with the requisite ill-intent. Similarly, Plaintiffs’ Exhibit 47 is
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(much less that he did so with intent or
knowledge of harm). See Riffee Decl. Ex. 13, Simpson Tr. 67:10–70:5; Riffee Decl.
Ex. 9, Fox Tr. 70:19–78:4; Riffee Decl. Ex. 5, Ahmad Tr. 216:16–234:13.
Further, to the extent Plaintiffs claim that Mr. Montag “approved” the fraud
filter
deposition testimony indicates otherwise. See
Pls. Apex IDC Letter 2 at 3. Mr. Ahmad testified that
Riffee Decl. Ex. 5,
Ahmad Tr. 109:10–111:10. Other BANA witnesses directly involved in the
development of the fraud filter also confirmed Mr. Montag’s general lack of
involvement with the issues relevant to Plaintiffs’ claims. Mr. Garfield, for example,
testified that
See, e.g., Riffee
Decl. Ex. 10, Garfield Tr. 228:6–231:16. None of this satisfies the apex doctrine.
III.
Plaintiffs Chose to Forgo Less Intrusive Discovery Methods.
Plaintiffs are not entitled to depose these apex witnesses unless they can also
show that they have exhausted less intrusive means of obtaining the information they
seek. Courts have repeatedly held that apex depositions are “especially” improper
“where the information sought in the deposition can be obtained through less
intrusive discovery methods (such as interrogatories) or from depositions of lower-
level employees with more direct knowledge of the facts at issue.” Affinity, 2011 WL
1753982, at *15; see also Mehmet v. PayPal, Inc., 2009 WL 921637, at *2 (N.D. Cal.
Apr. 3, 2009); Celerity, Inc., 2007 WL 205067, at *4.
Plaintiffs had the opportunity to seek depositions and depose the individuals
who authored the emails or reports or supposedly had the meetings with Messrs.
Moynihan or Montag that Plaintiffs believe show the executives may possess unique
knowledge relevant to punitive damages. In some instances, Plaintiffs elected not to
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seek the depositions. See, e.g., Riffee Decl. ¶ 22. In others, Plaintiffs chose to avoid
asking witnesses questions about the exhibits they now rely on (see, e.g., supra at
11–12; 21–22). When witnesses were asked about specific documents or their
general interactions with Messrs. Moynihan and Montag (or lack thereof) with
respect to the issues relevant to this case, their testimony universally reflects that
BANA’s two top executives do not possess unique knowledge necessary to require
their deposition. See supra at 16–18; 20–22. Rather, Messrs. Moynihan and Montag
had limited roles, or in Mr. Moynihan’s case no role, in decision-making with respect
to the fraud filter or staffing of the claims call center. See id.
*
*
*
Based on this record, Plaintiffs cannot meet either prong of the apex doctrine.
Unlike in the handful of cases Plaintiffs have cited to Judge Berg where apex
depositions have been allowed, neither Messrs. Moynihan or Montag were the chief
or principal decisionmakers or policy setters for the Bank’s prepaid card program or
the specific issues at hand. Cf. Kadrey v. Meta, 2024 WL 4293910, at *1 (N.D. Cal.
Sept. 24, 2024) (permitting deposition of Mark Zuckerberg because evidence showed
he was the “chief decision maker and policy setter” concerning division and facts at
issue). Nor did they create or develop the fraud rule at issue (the fraud filter) or set
call center strategies. Cf. In re Google Litig., 2011 WL 4985279, at *1 (permitting
deposition of one of Google’s two executives because he “undisputedly created and
developed a version of the … algorithm at issue in [the] case,” but denying deposition
of the other executive even though he coauthored a paper with the deposed
executive). Rather, this case is much more akin to cases precluding apex depositions
because speculative assertions that an executive made or participated in key decisions
are not enough to show they have the firsthand, non-repetitive knowledge necessary
to satisfy the apex doctrine. See, e.g., Metabyte, Inc. v. Meta Platforms, Inc., 2025
WL 799040, at *1 (N.D. Cal. Mar. 13, 2025) (precluding CEO deposition where
Plaintiff’s assertions were “unsubstantiated and speculative, such that they are
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unpersuasive regarding the question of whether [the CEO], in fact, has unique first-
hand, non-repetitive knowledge of the facts at issue in the case”); Pilot, Inc. v. Cub
Elecparts, Inc., 2015 WL 13918235, at *3 (C.D. Cal. Dec. 7, 2015) (granting
protective order where plaintiff’s “unsupported, conclusory, and largely speculative
statements” failed to demonstrate that apex deponent had “‘unique first-hand, non-
repetitive knowledge’”).
Plaintiffs’ position here would write the apex doctrine out of the law any time
punitive damages are sought against a corporate defendant, and, for that reason alone,
it cannot be correct. Plaintiffs cannot sidestep the apex doctrine’s careful and well-
developed requirement that they show that Messrs. Moynihan and Montag have
unique, non-repetitive knowledge about their case by pointing out that their punitive
damages claim is dead in the water without it. Of course senior executives are going
to be briefed on important issues pertaining to their companies (
), and
will subsequently brief the Board. But high-level briefing—which is all Plaintiffs
have shown here—does not mean that they possess the uniquely relevant information
necessary to satisfy the apex doctrine—much less the requisite intent necessary to
satisfy the punitive damages standard. Moreover, if Messrs. Moynihan and Montag
were to be deposed every time BANA was sued for the longshot potential of punitive
damages, they would be subjected to dozens of depositions every year. The apex
doctrine has developed because executives require “freedom to perform their tasks
without the constant interference of the discovery process.” See K.C.R., 2014 WL
3434257, at *3 (citing Warzon v. Drew, 155 F.R.D. 183, 185 (E.D. Wis. 1994)). If
Plaintiffs were permitted to proceed here, on this record, it would turn the apex
doctrine on its head.
CONCLUSION
For the foregoing reasons, and with good cause shown, BANA respectfully
requests the Court enter a protective order precluding Plaintiffs from taking the
depositions of Messrs. Moynihan and Montag.
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Dated: April 11, 2025
Respectfully submitted,
By: s/ Matthew L. Riffee
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
THOMAS M. HEFFERON (pro hac vice)
THefferon@goodwinlaw.com
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N St. NW
Washington, DC 20036
Tel: +1 202 346 4000
Fax: +1 202 346 4444
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
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
VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
LINDSAY E. HOYLE (pro hac vice)
LHoyle@goodwinlaw.com
GOODWIN PROCTER LLP
620 Eighth Avenue
New York, NY 10018
Tel: +1 212 813-8800
Fax: +1 212 355-3333
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)
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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 April 11, 2025. 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:
April 11, 2025
s/ Matthew L. Riffee
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