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Home Court filings In re: Bank of America California Unemployment Benefits Litigation — S.D. Cal., No. 21-md-02992 MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 542)

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MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 542)

Summary

Bank of America, N.A.'s motion to file documents under seal with its reply brief supporting its motion to reconsider the court's May 29, 2025 order on its motion for a protective order, filed 08/08/25 as Document 542 in In re Bank of America California Unemployment Benefits Litigation, Case 3:21-md-02992-GPC-MSB. The bank seeks to seal portions of the reply that discuss already-sealed exhibits, and portions of the declaration of Lindsay Hoyle. It points to the court's prior orders finding good cause to seal exhibits in the protective order and reconsideration briefing. The bank argues that good cause is the standard for sealing documents in a discovery dispute, even one about apex depositions of high-level executives.

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“MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 542).” Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 542. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2025-08-08-gov-uscourts-casd-709615-542-0-gov-uscourts-casd-709615-542-0/, SHA-256 47a889efca4f5e7c22bb2c4b46449d2fc7656db86163d16eb9b6544b7ac7b988.

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Case 3:21-md-02992-GPC-MSB     Document 542   Filed 08/08/25   PageID.30248   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.
  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                     DEFENDANT’S MOTION TO
  18
                                               FILE DOCUMENTS UNDER
                                               SEAL IN ITS REPLY BRIEF IN
  19                                           SUPPORT OF ITS MOTION TO
                                               RECONSIDER THE MAY 29, 2025
  20                                           ORDER GRANTING IN PART
                                               AND DENYING IN PART
  21                                           DEFENDANT’S MOTION FOR
  22                                           PROTECTIVE ORDER

  23
                                               Ctrm:       2D – 2nd Floor
  24                                           Judge:      Hon. Gonzalo P. Curiel
  25

  26

  27

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       DEFENDANT’S MOTION TO SEAL                       CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 542       Filed 08/08/25   PageID.30249    Page
                                       2 of 8


   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   Reply Brief in Support of its Motion to Reconsider the Court’s May 29, 2025 Order
   5   Granting in Part and Denying in Part Defendant’s Motion for Protective Order (the
   6   “Reply”). Consistent with the Court’s prior sealing orders finding good cause to seal
   7   certain exhibits filed with BANA’s Motion for Protective Order (ECF 452, 466),
   8   Plaintiffs’ Opposition to Defendant’s Motion for Protective Order (ECF 464, 467),
   9   BANA’s Reply in Support of Motion for Protective Order (ECF 471, 477), BANA’s
  10   Motion to Reconsider (ECF 502, 507), and Plaintiffs’ Opposition to Defendant’s
  11   Motion to Reconsider (ECF 525, 531), BANA seeks to seal portions of the Reply that
  12   discuss, reference or reflect the contents of those already-filed and sealed exhibits
  13   and portions of the Declaration of Lindsay Hoyle in Support of Defendant’s Reply
  14   Brief in Support of Motion to Reconsider the Court’s May 29, 2025 Order Granting
  15   in Part and Denying in Part Defendant’s Motion for Protective Order (“Hoyle
  16   Decl.”).1
  17         As previously stated in BANA’s motions to seal submitted in connection with
  18   class certification briefing and argument (ECF 328, 337, 344, 347, 383, 418) and
  19   protective order briefing and argument (ECF 451, 463, 470), the public’s right to
  20   inspect and copy judicial records is not absolute, and a party faced with the disclosure
  21   of confidential or proprietary information may seek to file the documents under seal
  22   to avoid disclosure of business information that might result in competitive harm or
  23   be used for improper purposes. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
  24   1
         BANA incorporates by reference its Motion to File Documents Under Seal (ECF
       451) in connection with its Motion for a Protective Order (ECF 452), Plaintiffs’
  25   Motion to File Documents Under Seal (ECF 463) in connection with Plaintiffs’
       Opposition to Defendant’s Motion for Protective Order (ECF 464), BANA’s Motion
  26   to File Documents Under Seal (ECF 470) in connection with its Reply in Support of
       Motion for Protective Order (ECF 471), BANA’s Motion to File Documents under
  27   Seal (ECF 501) in connection with its Motion to Reconsider (ECF 502), and
       Plaintiffs’ Motion to File Documents Under Seal (ECF 524) in connection with
  28   Plaintiffs’ Opposition to Defendant’s Motion to Reconsider (ECF 525).
                                                1
       DEFENDANT’S MOTION TO SEAL                            CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 542       Filed 08/08/25   PageID.30250   Page
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   1   598 (1978) (denying disclosure); Local Civ. R. 79.2(c). A party seeking to seal
   2   documents filed in connection with a discovery dispute must show “good cause” to
   3   seal documents. Courts in this district have held that the good cause standard applies
   4   even where the underlying dispute concerns so-called “apex” depositions of high-
   5   level executives, as is the case here. See, e.g., BAE Sys. San Diego Ship Repair Inc.
   6   v. United States, 670 F. Supp. 3d 1064, 1069 (S.D. Cal. 2023) (hereinafter “BAE
   7   Systems”) (finding “good cause” to seal exhibits filed with motion for protective
   8   order).
   9         Courts consistently seal documents where—as here—disclosure of the
  10   confidential business information risks competitive harm to the litigant or improper
  11   use of the information such as to commit fraud. E.g., E.W. Bank v. Shanker, 2021
  12   WL 3112452, at *18–19 (N.D. Cal. July 22, 2021) (finding compelling reasons to
  13   seal confidential onboarding processes, verification of customer identities, and fraud
  14   prevention measures); Soria v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal.
  15   Apr. 25, 2019) (finding compelling reasons to seal internal fraud investigation
  16   procedures because there was a “significant danger that someone could improperly
  17   use this information to commit fraud and avoid detection.”). Indeed, this Court
  18   largely granted the Parties’ prior motions to seal, finding good cause or compelling
  19   reasons to seal documents concerning the same topics that BANA now seeks to seal,
  20   including BANA’s fraud detection and prevention policies and strategies (including
  21   the fraud filter), call center operations, prepaid fraud losses, state contract issues,
  22   cardholder complaints and escalations, and certain of BANA’s interrogatory
  23   responses. See ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467, 477, 498, 507,
  24   531 (the “Sealing Orders”).
  25         Consistent with this Court’s Sealing Orders, there is good cause to seal the
  26   confidential documents and testimony at issue here (or references thereto), as well as
  27   substantive discussions of already sealed exhibits filed in connection with BANA’s
  28   Motion for Protective Order, Plaintiffs’ Opposition to Defendant’s Motion for
                                                2
       DEFENDANT’S MOTION TO SEAL                            CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 542       Filed 08/08/25    PageID.30251   Page
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   1   Protective Order, BANA’s Reply in Support of Protective Order, BANA’s Motion to
   2   Reconsider, or Plaintiffs’ Opposition to Defendants’ Motion to Reconsider because
   3   each reflect topics that are likely to cause particularized competitive harm to BANA
   4   and which could potentially enable future fraud, and thus pose a danger to BANA’s
   5   business and the public. See, e.g., EWB, 2021 WL 3112452, at *18–19 (finding
   6   compelling reasons to seal where public disclosure of EWB’s confidential
   7   onboarding processes, verification of customer identities and fraud prevention
   8   measures would “harm [the bank’s] competitive standing”); Soria, 2019 WL
   9   8167925, at *4 (finding compelling reasons to seal bank’s internal procedures for
  10   investigating fraud because there was a “significant danger that someone could
  11   improperly use this information to commit fraud and avoid detection”). Each
  12   document was also properly designated as “Confidential” or “Highly Confidential –
  13   Attorneys’ Eyes Only” under the Protective Order entered by this Court. See BAE
  14   Systems, 670 F. Supp. 3d at 1069 (finding good cause to seal certain exhibits filed in
  15   connection with an apex discovery dispute because “information in the exhibits fits
  16   within ‘confidential information’ in the protective order”).
  17         Specifically, the portions of the Reply and Hoyle Declaration that BANA seeks
  18   to seal refer to or discuss Confidential and Highly Confidential – Attorneys’ Eyes
  19   Only documents and testimony pertaining to the following categories of documents
  20   and information:
  21             Portions of the Reply reflect discussions of confidential BANA fraud
  22                prevention strategies and policies that could be misused by fraudsters to
  23                perpetrate future fraud or could be used by another financial institution
  24                to BANA’s competitive disadvantage. See ECF 365 at 5–6, 12; ECF
  25                466 at 1; ECF 467 at 1; ECF 477 at 1; Robart Decl. (ECF 347-2) ¶¶ 3–
  26                5; Martin Decl. (ECF 347-1) ¶¶ 4–6; see also Cowan v. GE Cap. Retail
  27                Bank, 2015 WL 1324848, at *2–3 (N.D. Cal. Mar. 24, 2015)
  28                (compelling reasons exist to seal bank’s internal procedures for
                                                3
       DEFENDANT’S MOTION TO SEAL                            CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 542        Filed 08/08/25   PageID.30252   Page
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   1                investigating fraud and addressing cardholder fraud notifications);
   2              Portions of the Reply and the Hoyle Declaration show how BANA
   3                structures the group responsible for fraud detection and monitoring
   4                strategies, among other banking responsibilities. See ECF 365 at 13-14;
   5                ECF 466 at 1; ECF 467 at 1; ECF 477 at 1; Robart Decl. (ECF 344-2) ¶
   6                5; Martin Decl. (ECF 344-1) ¶ 9; see also EWB, 2021 WL 3112452, at
   7                *18-19 (sealing confidential onboarding processes, digital banking
   8                platform, fraud management techniques, and verification of customer
   9                identities); and
  10              Portions of the Reply reflect BANA’s confidential discussions or
  11                analyses of its state prepaid unemployment program operations,
  12                including but not limited to, fraud volume, claims and call center
  13                operations, operational risks and losses, and approval of fraud strategies.
  14                See ECF 365 at 10–13, n. 14; ECF 466 at 1; ECF 467 at 1; ECF 477 at
  15                1; Martin Decl. (ECF 344-1) ¶¶ 5, 7–10; Martin Decl. (ECF 347-1) ¶¶
  16                10–12; Robart Decl. (ECF 344-2) ¶ 4; see Brady v. Grendene USA, Inc.,
  17                2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) (J. Curiel) (sealing
  18                confidential business information that might harm the litigants’
  19                competitive standing including profit and loss data and contractual
  20                agreements).
  21         BANA’s requested sealing of portions of the Reply and Hoyle Declaration is
  22   consistent with the terms of the Stipulated Protective Order (ECF 82, § 3), with this
  23   Court’s prior Sealing Orders (ECF 365, 381, 390, 466, 467, 477, 498, 507, 531), and
  24   with rulings in this Circuit. See, e.g., Darisse v. Nest Labs, Inc., 2016 WL 11474174,
  25   at *2 (N.D. Cal. June 2, 2016) (sealing class certification motion and declarations
  26   that quote or reference confidential exhibits). For the reasons discussed above, there
  27   is good cause to seal discussions of those topics, testimony and documents discussed
  28   in the Parties’ briefing. See supra at 1-4.
                                                4
       DEFENDANT’S MOTION TO SEAL                             CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB         Document 542       Filed 08/08/25   PageID.30253   Page
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   1                                       *          *    *
   2         For the foregoing reasons and for the reasons set forth in the Court’s Sealing
   3   Orders in connection with class certification briefing and argument (ECF 365, 381,
   4   390, 391, 397, 421, 498), protective order briefing and argument (ECF 466, 467,
   5   477), and reconsideration briefing and argument (ECF 507, 531), Plaintiffs’ Motions
   6   to Seal (ECF 376, 384, 394, 463, 524), BANA’s prior Motions to Seal (ECF 328,
   7   337, 344, 347, 383, 418, 451, 470, 501) and accompanying declarations submitted in
   8   support thereof (ECF 344-1, 344-2, 344-3, 347-1, 347-2), all of which are
   9   incorporated herein by reference, BANA respectfully requests that the Court grant
  10   Defendant’s Motion to Seal Documents Filed In Support of its Reply Brief in Support
  11   of its Motion to Reconsider the Court’s May 29, 2025 Order Granting in Part and
  12   Denying in Part Defendant’s Motion for Protective Order because good cause
  13   supports sealing thereof.
  14
       Dated: August 8, 2025              Respectfully submitted,
  15
                                          By: s/ Lindsay E. Hoyle_________________
  16
                                               MATTHEW L. RIFFEE (pro hac vice)
  17                                           MRiffee@goodwinlaw.com
                                               THOMAS M. HEFFERON (pro hac vice)
  18                                           THefferon@goodwinlaw.com
                                               SABRINA M. ROSE-SMITH (pro hac vice)
  19                                           SRoseSmith@goodwinlaw.com
                                               GOODWIN PROCTER LLP
  20                                           1900 N St. NW
                                               Washington, DC 20036
  21                                           Tel: +1 202 346 4000
                                               Fax: +1 202 346 4444
  22
                                               JAMES W. MCGARRY (pro hac vice)
  23                                           JMcGarry@goodwinlaw.com
                                               GOODWIN PROCTER LLP
  24                                           100 Northern Avenue
                                               Boston, MA 02210
  25                                           Tel.: +1 617 570 1000
                                               Fax: +1 617 523 1231
  26
                                               LAURA G. BRYS (SBN 242100)
  27                                           LBrys@goodwinlaw.com
                                               GOODWIN PROCTER LLP
  28                                           601 S Figueroa St., Suite 4100
                                                  5
       DEFENDANT’S MOTION TO SEAL                              CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB     Document 542       Filed 08/08/25   PageID.30254   Page
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   1                                      Los Angeles, CA 90017
                                          Tel.: +1 213 426 2500
   2                                      Fax: +1 617 346 4444
   3                                      VALERIE A. HAGGANS (pro hac vice)
                                          VHaggans@goodwinlaw.com
   4                                      LINDSAY E. HOYLE (pro hac vice)
                                          LHoyle@goodwinlaw.com
   5                                      GOODWIN PROCTER LLP
                                          620 Eighth Avenue
   6                                      New York, NY 10018
                                          Tel: +1 212 813-8800
   7                                      Fax: +1 212 355-3333
   8                                      YVONNE W. CHAN (pro hac vice)
                                          YChan@jonesday.com
   9                                      JONES DAY
                                          100 High Street
  10                                      Boston, MA 02110
                                          Tel.: +1 617 960 3939
  11                                      Fax: +1 617 449 6999
  12                                      JANICE P. BROWN (SBN 114433)
                                          jbrown@myersnave.com
  13                                      MATTHEW B. NAZARETH (SBN
                                          278405)
  14                                      mnazareth@myersnave.com
                                          MEYERS NAVE
  15                                      600 B Street, Suite 1650
                                          San Diego, CA 92101
  16
                                          Attorneys for Defendant
  17                                      BANK OF AMERICA, N.A.
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       DEFENDANT’S MOTION TO SEAL                          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 August 8, 2025. I further certify that all participants
   5   in 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.
   8

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  10    Executed:   August 8, 2025                   s/ Lindsay E. Hoyle
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       DEFENDANT’S MOTION TO SEAL                           CASE NO. 21-MD-02992-GPC-MSB


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