Exhibit 1 — Bofa Ca Unemployment (Dkt. 454.2)

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Exhibit 1, Document 454-2, filed 04/11/25 in Case 3:21-md-02992-GPC-MSB, five pages, bearing the legend FILED PROVISIONALLY UNDER SEAL WITH REDACTIONS PURSUANT TO STIPULATED PROTECTIVE ORDER. It is a letter dated December 16, 2024 from James W. McGarry of Goodwin Procter LLP to Judge Berg in In re Bank of America Calif. Unemployment Benefits Litig. The letter states that BANA seeks a protective order precluding Plaintiffs from deposing BANA's current CEO Brian Moynihan and former COO Thomas Montag. It states that the deposition notices are not proportionate to the needs of the case and argues that Plaintiffs cannot satisfy the apex standard for either executive.

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Case 3:21-md-02992-GPC-MSB    Document 454-2   Filed 04/11/25   PageID.26476
                                Page 1 of 5



                             EXHIBIT 1




                       FILED
                  PROVISIONALLY
                 UNDER SEAL WITH
                   REDACTIONS
                   PURSUANT TO
                    STIPULATED
                PROTECTIVE ORDER
Case 3:21-md-02992-GPC-MSB                Document 454-2          Filed 04/11/25      PageID.26477
                                            Page 2 of 5
                                            James W. McGarry                          Goodwin Procter LLP
                                            +1 617 570 1332                           100 Northern Avenue
                                            jmcgarry@goodwinlaw.com                   Boston, MA 02210

                                                                                      goodwinlaw.com
                                                                                      +1 617 570 1000


December 16, 2024

VIA EMAIL (efile berg@casd.uscourts.gov)

Re:     In re Bank of America Calif. Unemployment Benefits Litig., 3:21-md-02992-GPC-MSB

Dear Judge Berg:

BANA seeks a protective order precluding Plaintiffs from deposing BANA’s two top executives—
current CEO Brian Moynihan and former COO Thomas Montag. BANA objects to Plaintiffs’
deposition notices, which are not proportionate to the needs of this case and reflect Plaintiffs’
confessed desire to push settlement via executive discovery.

“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. v. Ultra Clean Holding, Inc., 2007 WL 205067, at
*3 (N.D. Cal. Jan. 25, 2007). To curb such abuse, courts place the burden on 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 (N.D. Cal. Oct. 19, 2011) (citations omitted).
There is no dispute that Messrs. Moynihan and Montag are “clearly high-level executives whose
depositions must satisfy the ‘apex’ requirements.” Id.1 Plaintiffs cannot satisfy either prong of the
apex standard with respect to either executive, and therefore neither deposition should be allowed.

First, “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 Texas v. Apple, Inc., 2011 WL 1753982, at *15 (N.D. Cal. May 9, 2011) (citations omitted).
The apex standard for depositions is different and higher than the one that applies to disputes about
ESI discovery—a distinction which Plaintiffs concede. See Pls. Dist. Ct. ESI Br., Filed Under Seal
at Dkt. 278-1, at 17 (referring to “heightened apex doctrine standard”). Plaintiffs were able to obtain
ESI from Messrs. Moynihan and Montag by arguing that these executives might have unique
information relevant to their claim for punitive damages. But the apex doctrine requires Plaintiffs to
demonstrate far more to take the depositions they now seek. Plaintiffs cannot do so. Indeed, the
parties have spent more than 18 months engaged in expansive and burdensome discovery that
has confirmed what BANA has been saying from the beginning: Messrs. Moynihan and Montag
have no unique and non-repetitive knowledge concerning the relevant issues in this case.

In ruling on Plaintiffs’ request for ESI from Messrs. Moynihan and Montag, Judge Curiel found that
BANA’s executives may have “uniquely relevant information” concerning Plaintiffs’ punitive
damages claim under Cal. Civ. Code § 3294(b). ESI Order, Dkt. 298, 2024 WL 3174874, at *6 (Jun.
25, 2024). Judge Curiel, therefore, granted Plaintiffs’ request for limited ESI so that they could
explore what, at the time, was a wholly unsubstantiated claim that BANA’s top two executives “knew
about the [Claim Fraud Filter], its impact on legitimate EDD cardholders, when they knew it, what


1
 Mr. Montag was BANA’s second-in-line executive until December 2021, and is now the Chief Executive
Officer of Rubicon Carbon. See K.C.R. v. County of Los Angeles, 2014 WL 3434257, at *3 (C.D. Cal. July 11,
2014) (apex doctrine protects executives “even after leaving office”).
Case 3:21-md-02992-GPC-MSB   Document 454-2   Filed 04/11/25   PageID.26478
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Case 3:21-md-02992-GPC-MSB                 Document 454-2           Filed 04/11/25       PageID.26479
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the information they seek. Courts repeatedly hold 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 (denying request for deposition
of Apple CEO); Mehmet v. PayPal, Inc., 2009 WL 921637, at *2–3 (N.D. Cal. Apr. 3, 2009) (granting
motion for protective order precluding deposition of PayPal CEO); Celerity, 2007 WL 205067, at
*4–5 (granting motion for protective order of company’s top executives).

As discussed above, Plaintiffs have not come close to exhausting less intrusive means of discovery.
Although discovery has been ongoing for over 18 months, prior to noticing the depositions of
Messrs. Moynihan and Montag, Plaintiffs took only one deposition of a single BANA fact witness,
plus a 30(b)(6) deposition (which required BANA to designate six witnesses to cover its various
topics).3 And as of today, Plaintiffs still have taken the deposition of only one of the 13 individuals
identified by BANA (Brad Garfield), and have sought only two more (Anne Holt and Faiz Ahmad, to
be scheduled for January).4 The fact that Plaintiffs unilaterally noticed Messrs. Moynihan’s and
Montag’s depositions before even asking to depose the individuals involved in the decision-making
or approval process concerning the central issue in their case underscores that Plaintiffs have not
attempted to obtain relevant information from other, more convenient sources, such as lower-level
executives or employees. See March v. ABM Sec. Serv., Inc., 2010 WL 11684788, at *3 (S.D. Cal.
Nov. 5, 2010) (citing Patterson v. Avery Dennison Corp., 281 F.3d 676, 682 (7th Cir. 2002))
(denying request to depose company president, and noting that failure to take advantage of less
expensive, more convenient method of discovery “casts serious doubt” over claim that deponent
possessed information “that was more than marginally relevant”); Celerity, 2007 WL 205067, at *5
(less intrusive discovery not exhausted merely by scheduling apex depositions “after the
depositions of the lower level employees”). Moreover, Plaintiffs’ attempt to bypass nearly every
individual who BANA identified as having relevant knowledge, and jump directly to BANA’s most
senior executives, underscores Plaintiffs’ true intent here—which is not to obtain discoverable
information, but to further harass BANA and its two current or former top executives. Plaintiffs have
conceded as much, previously representing to the Court that seeking discovery from BANA’s top
executives will pressure BANA to settle. See Dkt. 209-1 ¶ 10.

Finally, the Court should deny Plaintiffs’ request to depose Messrs. Moynihan and Montag because
if the apex depositions were to go forward, they would undeniably cause hardship to both
executives personally, as well as disruptions to the operations of BANA and of Montag’s current
company. See Davis v. Pinterest, Inc., 2021 WL 11117688, at *1 (N.D. Cal. May 27, 2021) (apex
depositions are an “undue burden for the company, the witnesses, and counsel” absent showing
of unique knowledge). Moreover, if BANA’s apex executives were to be deposed every time BANA
was sued simply because of their positions, they would be subjected to dozens of depositions every
year. These distractions and impositions on their time are not insubstantial, given the size of
BANA’s operations. This is precisely why the apex doctrine was developed, as 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.


3
  That single fact witness (Renee Johnson) was not identified by BANA as one of the 13 individuals directly
involved in the Claim Fraud Filter, and did not testify that BANA’s apex executives had any unique knowledge.
4
 Plaintiffs took one additional deposition of a fraud analyst (Ryan Schwartz) who worked on certain aspects
of the Claim Fraud Filter, and who did not testify that BANA’s apex executives had any unique knowledge.

                                                     3
Case 3:21-md-02992-GPC-MSB        Document 454-2        Filed 04/11/25   PageID.26480
                                    Page 5 of 5




Respectfully submitted,

/s/ James W. McGarry_______________
James W. McGarry


Cc:    via email to:
       Matthew B. Nazareth (mnazareth@meyersnave.com)
       Brian Danitz (bdanitz@cpmlegal.com)
       Karin Swope (kswope@cpmlegal.com)
       Michael Rubin (mrubin@altshulerberzon.com)
       Connie K. Chan (cchan@altshulerberzon.com)
       Stacey M. Leyton (sleyton@altshulerberzon.com)
       Gayle M. Blatt (gmb@cglaw.com)
       David S. Casey (dcasey@cglaw.com)
       Thomas Hefferon (thefferon@goodwinlaw.com)
       Matthew L. Riffee (mriffee@goodwinlaw.com)
       Valerie A. Haggans (vhaggans@goodwinlaw.com)
       Lindsay E. Hoyle (lhoyle@goodwinlaw.com)
       Laura Brys (lbrys@goodwinlaw.com)
       Yvonne W. Chan (ychan@jonesday.com)




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