DECLARATION re 453 MOTION for Protective Order Declaration of Matthew L.… — Bofa Ca Unemployment (Dkt. 454)

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A declaration by Matthew L. Riffee, a partner with Goodwin Procter LLP and counsel for Bank of America, N.A., filed 04/11/25 as Document 454 in In re: Bank of America California Unemployment Benefits Litigation, Case No. 21-MD-02992-GPC-MSB in the Southern District of California, supporting the bank's Motion for a Protective Order. Riffee says the bank has produced approximately 270,000 documents, and that of documents reviewed from the files of Messrs. Moynihan and Montag, approximately 3% of Moynihan's and less than 1% of Montag's were responsive. He says plaintiffs have taken 15 depositions and did not depose several employees identified as involved with the fraud filter. He recounts Judge Berg's December 23, 2024 tentative ruling requiring those depositions before any apex depositions.

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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 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. 
 
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 
DECLARATION OF 
MATTHEW L. RIFFEE IN 
SUPPORT OF DEFENDANT’S 
MOTION FOR A PROTECTIVE 
ORDER 
 
 
 
 
 
 
 
 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 454     Filed 04/11/25     PageID.26465     Page
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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 21-MD-02992-GPC-MSB 
 
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I, Matthew L. Riffee, state and declare as follows: 
1. 
I am a partner with the law firm of Goodwin Procter LLP, and counsel 
of record for Defendant Bank of America, N.A. (“BANA”) in the above-captioned 
lawsuit.   
2. 
I have personal knowledge of the facts set forth in this declaration, and 
if called upon to do so, I could and would competently testify thereto. 
3. 
I make this declaration in support of BANA’s Motion for a Protective 
Order. 
I. 
There Were Few Responsive Documents in the Apex Executives’ ESI 
Custodial Files. 
4. 
As of April 11, 2025, BANA has responded to 212 class written 
discovery requests in this action, including 145 document requests, 36 interrogatories 
with at least 173 discrete subparts, and 31 requests for admission with at least 33 
discrete subparts. 
5. 
As of April 11, 2025, BANA has produced approximately 270,000 
documents to Plaintiffs in this action. 
6. 
On July 26, 2024 and August 5 and 16, 2024, BANA produced a total 
of 556 ESI documents from Messrs. Moynihan’s and Montag’s custodial files. 
7. 
The custodial files collected and reviewed for Messrs. Moynihan and 
Montag were almost entirely irrelevant to the issues in this case—approximately 3% 
of Mr. Moynihan’s reviewed documents were responsive to Plaintiffs’ discovery 
requests, and less than 1% of Mr. Montag’s reviewed documents were responsive.  
8. 
Almost one-third of the documents produced from Mr. Moynihan’s ESI 
custodial files consisted of executive escalations—i.e., unsolicited complaints 
emailed by individuals directly to Mr. Moynihan’s personal email address.  
II. 
The Depositions Taken and Ordered by the Court Do Not Support 
Depositions of the Apex Executives. 
9. 
As of April 11, 2025, Plaintiffs have taken 15 depositions in this case, 
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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 21-MD-02992-GPC-MSB 
 
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including six depositions taken in response to Plaintiffs’ Rule 30(b)(6) deposition 
notice, and nine individual fact depositions.  
10. 
As of April 11, 2025, Plaintiffs have taken Rule 30(b)(6) depositions of 
the following witnesses designated to testify on BANA’s behalf: Shane Daniels (on 
February 6, 2024); Robert Chestnut (on February 8, 2024); W. Matthew Martin (on 
February 14, 2024); Michael Letson (on February 16, 2024); William Golden (on 
February 22, 2024); and Jennifer Lennon (on February 23, 2024). 
11. 
As of April 11, 2025, Plaintiffs have taken fact depositions of the 
following witnesses: Renee Johnson (on May 7, 2024); Ryan Schwartz (on December 
4, 2024); Bradley Garfield (on December 10, 2024); Anne Holt (on January 8, 2025); 
Faiz Ahmad (on January 29, 2025); Melissa Ramirez (on February 11, 2025); 
William Fox (on February 13, 2025); Jennifer Ehresman (on February 19, 2025); and 
Paul Simpson (on February 21, 2025). 
12. 
On December 8, 2023, Plaintiffs served a notice of Rule 30(b)(6) 
deposition for BANA in this case, which was revised and re-noticed on February 4, 
2024. 
13. 
On March 13, 2024, Plaintiffs served a notice of deposition for Renee 
Johnson in this case, which was revised and re-noticed on April 22, 2024. 
14. 
On October 11, 2024, Plaintiffs served notices of deposition for Messrs. 
Moynihan and Montag in this case.  Plaintiffs simultaneously noticed depositions of 
Bradley Garfield, Anne Holt, and Ryan Schwartz.  On November 8, 2024, BANA 
served objections to the deposition notices of Messrs. Moynihan and Montag, and 
specifically notified Plaintiffs of BANA’s objections to the depositions based on the 
apex doctrine.  The parties subsequently met and conferred to discuss BANA’s 
objections, and specifically BANA’s objections to the depositions of Messrs. 
Moynihan and Montag. 
15. 
On December 2, 2024, Plaintiffs served a notice of deposition for Faiz 
Ahmad. 
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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 21-MD-02992-GPC-MSB 
 
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16. 
Plaintiffs did not notice or otherwise take the deposition of BANA 
employee Jennifer Boussuge in this case.  
17. 
Plaintiffs did not notice or otherwise take the deposition of BANA 
employee Christine Channels in this case.  
18. 
Plaintiffs did not notice or otherwise take the deposition of BANA 
employee John Denning in this case. 
19. 
Plaintiffs did not notice or otherwise take the deposition of BANA 
employee Ruchira Ghosh in this case.  
20. 
Plaintiffs did not notice or otherwise take the deposition of BANA 
employee John Lawlor in this case. 
21. 
Plaintiffs did not notice or otherwise take the deposition of BANA 
executive James DeMare in this case. 
22. 
Plaintiffs did not notice or otherwise take the deposition of BANA 
employee Jose Firpi in this case.  
23. 
On December 5, 2024, after meeting and conferring, the parties notified 
the Honorable Magistrate Judge Berg of their dispute regarding the depositions of 
Messrs. Moynihan and Montag, and BANA’s intent to move for a protective order 
precluding their depositions under the apex doctrine.  Judge Berg ordered the parties 
to submit informal letter briefs on or before December 16, 2024, and scheduled an 
informal discovery conference for December 23, 2024 to hear argument on the issue. 
24. 
On December 16, 2024, the parties submitted their informal letter briefs 
to Judge Berg, and BANA respectfully requested a protective order from the court 
precluding the depositions of Messrs. Moynihan and Montag. 
25. 
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, including 
because Plaintiffs had not noticed or deposed the majority of the individuals BANA 
had identified as involved in the development, approval, and implementation of the 
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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 21-MD-02992-GPC-MSB 
 
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fraud filter.  Judge Berg further ruled that Plaintiffs must take limited two-hour 
depositions of witnesses that BANA identified as involved in the development, 
approval, and implementation of the fraud filter before he would reconsider 
Plaintiffs’ request to depose Messrs. Moynihan and Montag.  The Parties 
subsequently met and conferred, and agreed to accept Judge Berg’s tentative ruling. 
26. 
After Judge Berg’s December 23, 2024 tentative ruling, Plaintiffs 
deposed six additional witnesses that BANA previously identified as involved in the 
development, approval, and/or implementation of the fraud filter and/or other 
relevant aspects of the EDD prepaid program.  This included the previously noticed 
depositions of Faiz Ahmad and Anne Holt, and four two-hour depositions of Jennifer 
Ehresman, William Fox, Melissa Ramriez, and Paul Simpson. 
27. 
On February 14, 2025, the parties appeared before the Honorable Judge 
Gonzalo Curiel for a case status conference.  During the conference, the District 
Court directed that, should either party wish to challenge Judge Berg’s forthcoming 
tentative ruling on BANA’s motion for a protective order, the dispute regarding apex 
depositions may be raised directly to the District Court, rather than through formal 
briefing before the Magistrate Judge.  
28. 
On March 7, 2025, after the conclusion of the depositions referenced in 
paragraph ¶ 26, and Plaintiffs confirmed that they were still seeking depositions of 
Messrs. Moynihan and Montag, BANA renewed its request for a protective order 
precluding the depositions, and the parties engaged in additional informal briefing on 
this issue before the Magistrate Judge.  That same day, BANA and Plaintiffs each 
submitted an informal letter brief to Judge Berg. 
29. 
Affixed to Plaintiffs’ March 7, 2025 informal letter brief were 53 
exhibits.  46 of Plaintiffs’ exhibits are ESI documents that BANA produced to 
Plaintiffs in this case; seven of Plaintiffs’ exhibits are excerpts of transcripts from 
depositions that Plaintiffs have taken in this case.  With respect to Plaintiffs’ 53 
exhibits: 
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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 21-MD-02992-GPC-MSB 
 
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a. When deposed, Plaintiffs did not ask Mr. Ahmad about Plaintiffs’ 
Exhibit 7. 
b. When deposed, Plaintiffs did not ask Mr. Simpson about Plaintiffs’ 
Exhibit 7. 
c. Plaintiffs’ Exhibit 14 is a copy of a document BANA produced at 
Bates label BANA_EDD_MDL-00293818 on November 20, 2023; 
d. When deposed, Plaintiffs did not ask Ms. Johnson about Plaintiffs’ 
Exhibit 14. 
e. Plaintiffs’ Exhibit 15 is the only exhibit that was produced from Mr. 
Moynihan’s custodial ESI files;  
f. When deposed, Plaintiffs did not ask Ms. Ehresman about Plaintiffs’ 
Exhibit 14. 
g. When deposed, Plaintiffs did not ask Ms. Ehresman about Plaintiffs’ 
Exhibit 48. 
h. When deposed, Plaintiffs did not ask Mr. Garfield about Plaintiffs’ 
Exhibit 48. 
30. 
On March 12, 2025, the parties appeared before Judge Berg for a second 
informal discovery conference regarding BANA’s motion for a protective order.  
During the conference, the Magistrate Judge issued a second tentative ruling allowing 
Plaintiffs to depose Mr. Moynihan for two hours and Mr. Montag for one hour, with 
both depositions to be limited to the issue of punitive damages.  In so ruling, the 
Magistrate Judge 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 either Mr. Moynihan or Mr. Montag may have. 
31. 
Later that same day, Plaintiffs unilaterally emailed Judge Berg, rejecting 
the Magistrate Judge’s March 12, 2025 tentative ruling and requested formal briefing 
on BANA’s motion for a protective order precluding the depositions of Messrs. 
Moynihan and Montag. 
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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 21-MD-02992-GPC-MSB 
 
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III. 
Exhibits  
32. 
Attached hereto as Exhibit 1 is a true and correct copy of an informal 
letter brief from counsel for BANA to Judge Berg, dated December 16, 2024 
(“BANA Apex IDC Letter 1”).  
33. 
Attached hereto as Exhibit 2 is a true and correct copy of an informal 
letter brief from counsel for Plaintiffs to Judge Berg, dated December 16, 2024 (“Pls. 
Apex IDC Letter 1”).  
34. 
Attached hereto as Exhibit 3 is a true and correct copy of an informal 
letter brief from counsel for BANA to Judge Berg, dated March 7, 2025 (“BANA’s 
Apex IDC Letter 2”), including the 11 exhibits that BANA affixed thereto.  
35. 
Attached hereto as Exhibit 4 is a true and correct copy of an informal 
letter brief from counsel for Plaintiffs to Judge Berg, dated March 7, 2025 (“Pls. Apex 
IDC Letter 2”), including the 53 exhibits that Plaintiffs affixed thereto.   
36. 
Attached hereto as Exhibit 5 is a true and correct copy of excerpts of 
the official transcript of the deposition of Faiz Ahmad, dated January 29, 2025.1  
37. 
Attached hereto as Exhibit 6 is a true and correct copy of excerpts of 
the official transcript of the deposition of Shane Daniels, dated February 6, 2024.  
38. 
Attached hereto as Exhibit 7 is a true and correct copy of an excerpt of 
BANA’s Responses and Objections to Plaintiff Jennifer Yick’s First Set of 
Interrogatories.   
39. 
Attached hereto as Exhibit 8 is a true and correct copy of excerpts of 
the official transcript of the deposition of Jennifer Ehresman, dated February 19, 
2025. 
40. 
Attached hereto as Exhibit 9 is a true and correct copy of excerpts of 
the official transcript of the deposition of William Fox, dated February 13, 2025.  
41. 
 Attached hereto as Exhibit 10 is a true and correct copy of excerpts of 
 
1 Should the Court desire a full copy of the Ahmad transcript or any other transcript 
attached hereto as an exhibit, BANA will provide a full copy to the Court upon 
request.  
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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 21-MD-02992-GPC-MSB 
 
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the official transcript of the deposition of Bradley Garfield, dated December 10, 
2024.  
42. 
Attached hereto as Exhibit 11 is a true and correct copy of excerpts of 
the official transcript of the deposition of Ryan Schwartz, dated December 4, 2024. 
43. 
Attached hereto as Exhibit 12 is a true and correct copy of excerpts of 
the official transcript of the deposition of Renee Johnson, dated May 7, 2024. 
44. 
Attached hereto as Exhibit 13 is a true and correct copy of excerpts of 
the official transcript of the deposition of Paul Simpson, dated February 21, 2025. 
45. 
Attached hereto as Exhibit 14 is a true and correct copy of excerpts of 
the official transcript of the deposition of Michael Letson, dated February 16, 2024. 
46. 
Attached hereto as Exhibit 15 is a true and correct copy of excerpts of 
the official transcript of the deposition of Melissa Ramirez (formerly Gargagliano), 
dated February 11, 2025. 
47. 
Attached hereto as Exhibit 16 is a true and correct copy of excerpts of 
the official transcript of the deposition of Anne Holt, dated January 8, 2025. 
48. 
Attached hereto as Exhibit 17 is a true and correct copy of excerpts of 
the official transcript of the deposition of William Martin, dated February 14, 2024.   
 
 
 
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RIFFEE DECL. ISO MOT. FOR PROTECTIVE ORDER  
 
CASE NO. 21-MD-02992-GPC-MSB 
 
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I declare under penalty of perjury under the laws of the United States that the 
foregoing is true and correct.  Executed on April 11, 2025, in Washington, DC. 
 
 
 
 
By: s/ Matthew L. Riffee___ 
 
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. 
 
Case 3:21-md-02992-GPC-MSB     Document 454     Filed 04/11/25     PageID.26473     Page
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