Reply to Response to Motion re 503 Motion for Reconsideration — In re BofA Unemployment Litigation (Dkt. 544)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 544 · 2025-09-16 · Docket on CourtListener

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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                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
REPLY BRIEF IN SUPPORT OF 
DEFENDANT’S 
MOTION 
TO 
RECONSIDER 
MAY 
29, 
2025 
ORDER GRANTING IN PART 
AND 
DENYING 
IN 
PART 
DEFENDANT’S 
MOTION 
FOR 
PROTECTIVE ORDER 
 
Date:   
September 16, 2025 
Time:   
1:30 PM 
Ctrm:   
12-A – 12th Floor  
Judge:  
Hon. Gonzalo P. Curiel 
 
 
FILED 
PROVISIONALLY 
UNDER 
SEAL 
PURSUANT TO STIPULATED PROTECTIVE 
ORDER
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                 CASE NO.: 3:21-md-02992-GPC-MSB
 
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TABLE OF CONTENTS 
I. 
The Order Includes Multiple Clear Legal Errors. ............................................ 1 
A. 
The Order improperly placed the burden on BANA. ................................. 1 
B. 
The Order improperly applied the apex doctrine. ....................................... 4 
C. 
The Order ignored Plaintiffs’ failure to exhaust. ........................................ 5 
II. The Order Misinterpreted and/or Ignored Key Relevant Evidence. ................ 8 
III. Alternatively, The Court Should Certify The Order For Appeal. .................. 10 
 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                 CASE NO.: 3:21-md-02992-GPC-MSB
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Affinity Labs of Tex. v. Apple, Inc.,  
 
2011 WL 1753982 (N.D. Cal. May 9, 2011) ....................................................... 7 
Apple Inc. v. Samsung Electronics Co., Ltd., 
282 F.R.D. 259 (N.D. Cal. 2012) ......................................................................... 4 
Bicek v. C & S Wholesale Grocers, Inc., 
2013 WL 5425345 (E.D. Cal. Sept. 27, 2013) ..................................................... 3 
Blankenship v. Hearst Corp., 
519 F.2d 418 (9th Cir. 1975) ................................................................................ 2 
Ceiva Logic, Inc. v. Amazon, Inc., 
 
2021 WL 12349625 (C.D. Cal. Nov. 10, 2021) ................................................... 7 
EchoStar Satellite, LLC v. Splash Media Partners, L.P., 
2009 WL 1328226 (D. Colo. May 11, 2009) ....................................................... 3 
In re Google Litig., 
2011 WL 4985279 (N.D. Cal. Oct. 19, 2011) .................................................. 2, 3 
Greer v. Cnty. of San Diego, 
2022 WL 2134601 (S.D. Cal. June 14, 2022) ...................................................... 4 
Kanter v. Cont'l Airlines, Inc., 
2010 WL 11601555 (S.D. Fla. Apr. 16, 2010) ..................................................... 3 
K.C.R. v. Cnty. of Los Angeles, 
 
2014 WL 3434257 (C.D. Cal. July 11, 2024)  ..................................................... 2 
Kennedy v. Jackson Nat’l Life Ins. Co., 
 
2010 WL 1644944 (N.D. Cal. Apr. 22, 2010)  .................................................... 3 
Mansourian v. Board of Regents of Univ. of Cal. at Davis,  
 
2007 WL 4557104 (E.D. Cal. Dec. 21, 2007)  ..................................................... 2 
Pilot, Inc. v. Cub Elecparts, Inc., 
2015 WL 13918235 (C.D. Cal. Dec. 7, 2015) ..................................................... 3 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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Shriners v. United States, 
2017 WL 3412299 (S.D. Cal. Aug. 8, 2017)........................................................ 6 
Smith v. City of Stockton 
 
2017 WL 11435161 (E.D. Cal. Mar. 27, 2017)  .................................................. 3 
Weinstein v. Katapult Grp. Inc 
 
2022 WL 4548798 (N.D. Cal. Sept. 29, 2022)  .................................................... 2 
 
In re Uber Technologies, Inc. Passenger Sexual Assault Litig, 
2025 WL 896412 (N.D. Cal. Mar. 24, 2025) ................................................. 4, 10 
 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                 CASE NO.: 3:21-md-02992-GPC-MSB
 
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Plaintiffs’ opposition (Dkt. 525, “Recon. Opp.”) fails to refute the multiple 
clear errors identified in BANA’s motion (Dkt. 502, “Recon. Mot.”) that individually 
and collectively merit reconsideration of the Court’s Order. It ignores the procedural 
history of this case and relies on distinguishable and non-binding precedent to 
support the burdens that were improperly placed on BANA. Plaintiffs then seek to 
re-write history, incorrectly arguing that BANA waived Plaintiffs’ need to exhaust 
less burdensome discovery methods while nonetheless conceding that they failed to 
do so. Regarding the Order’s factual errors, Plaintiffs’ opposition simply restates 
their speculative inferences, arguing that they should win now because they won 
before. None of this undermines the clear and pervasive errors that BANA identified 
in the Order that resulted in the Court’s erroneous conclusion that Messrs. Moynihan 
and Montag likely possessed sufficient unique, first-hand knowledge to be deposed. 
For the reasons stated in BANA’s motion and herein, BANA respectfully requests 
that the Court reconsider its Order and deny Plaintiffs’ request for the depositions of 
its top two executives.1 
I. 
The Order Includes Multiple Clear Legal Errors. 
A. The Order improperly placed the burden on BANA. 
The Court’s misallocation of burden is but one clear error contained in the 
Order. After the parties met and conferred, it was Plaintiffs that initially raised this 
issue before both Magistrate Judge Berg (where the issue was simultaneously 
briefed) and this Court (through the joint status report). See Recon. Mot. at 3-4. Given 
this history, it makes no sense that the burden-allocation and potential disposition of 
this dispute should turn on the formality of the vehicle by which the dispute was 
raised. Plaintiffs offer no response to this. Indeed, the Order’s burden-allocation 
would incentivize parties to refuse to engage on discovery matters and force the 
seeking party to move to compel—which cannot be the desired result. See id. 
 
1 Alternatively, for the reasons stated in BANA’s motion and herein, the Court should 
certify the Order for an interlocutory appeal and stay the depositions. 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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The cases Plaintiffs cite do not compel a different outcome. See Recon. Opp. 
at 5-7. Many of them are distinguishable. For example, Weinstein v. Katapult Grp. 
Inc. is not an apex case at all. 2022 WL 4548798 (N.D. Cal. Sept. 29, 2022). 
Similarly, the language Plaintiffs quote from K.C.R. v. Cnty. of Los Angeles (Recon. 
Opp. at 5) is from that court’s discussion of discovery in general, not the apex 
standard. 2014 WL 3434257, at *2 (C.D. Cal. July 11, 2024). Plaintiffs also quote 
language from In re Google Litig. (Recon. Opp. at 7), but that case supports BANA’s 
position, as that court held that the resisting party need only establish that the witness 
qualifies for apex protection before shifting the burden to the seeking party. See 
Recon. Mot. at 6 (citing In re Google Litig., 2011 WL 4985279, at *2 (N.D. Cal. Oct. 
19, 2011)). The only potentially precedential case among the nearly 20 citations in 
Plaintiffs’ brief on this point is Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 
1975). See Recon. Opp. at 5-7. And as BANA explained, that 60-year old opinion’s 
discussion of a high-ranking executive deposition was brief and did not reference or 
claim to address the burden or standards to be applied under the apex doctrine. See 
Recon. Mot. at 4, n.1. Therefore, Plaintiffs’ (and the Order’s) reliance on Blankenship 
as a definitive answer to the burden question is misplaced. To the extent some district 
courts have answered the burden question in Plaintiffs’ favor, those decisions reflect 
the disagreement and confusion among courts in this Circuit that further warrants 
interlocutory review. See infra Section III.2 
 
2 Plaintiffs do not dispute that courts are even more inclined to impose burden-
shifting where the purpose of the deposition is harassment. Recon. Mot. at 4 (citing 
Mansourian v. Board of Regents of Univ. of Cal. at Davis, 2007 WL 4557104, at *3, 
n.2 (E.D. Cal. Dec. 21, 2007)). Plaintiffs simply deny having “confessed” a desire to 
abuse the discovery process. Recon. Opp. at 20. But their own words betray them. 
Having told Judge Berg from the outset that they needed executive discovery because 
it “settle[s] cases,” the motive behind Plaintiffs’ continued push for this discovery 
has always been clear. Dkt. 209-1 ¶ 10. Moreover, the sole stated purpose of the apex 
depositions is not to support Plaintiffs’ primary claims in this case. Rather they claim 
they need the evidence to try to meet the standard for punitive damages on their 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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Plaintiffs’ suggestion that burden-shifting only applies to “the deposition of a 
high-ranking government official” is wrong. See Recon. Opp. at 7. In Smith v. City of 
Stockton, the court held that the apex doctrine’s burden-shifting also applies to high-
level executives: in the context of “corporate officials,” “the apex doctrine shifts the 
initial Rule 26(c) burden from the person resisting discovery to the person seeking 
it.” 2017 WL 11435161, at *2 (E.D. Cal. Mar. 27, 2017). Numerous courts in this 
Circuit, and others, have reached the same conclusion.3  
Finally, Plaintiffs say that BANA “completely ignores” the Order’s alternative 
holding that even if the burden is shifted, Plaintiffs made the requisite showing. 
Recon. Opp. at 3. Not so. BANA’s brief obviously argued at length that the Order’s 
holding that Plaintiffs satisfied the apex doctrine is clear error. See Recon. Mot. at 6-
14. All Plaintiffs have to offer is speculation and smoke and mirrors, supported only 
by second- or third-hand emails and chats from lower-level employees, not a single 
one of whom testified that either Mr. Moynihan or Mr. Montag had unique 
knowledge about the CFF or call center staffing. Id. Where courts have allowed CEO 
depositions, it has been on a far more robust showing. For example, the plaintiffs in 
In re Google Litig. proffered evidence that the witness was the named inventor of the 
patent at issue in the case. 2011 WL 4985279, at *1. Similarly, in Kennedy v. Jackson 
Nat’l Life Ins. Co., the CEO’s deposition was allowed only after the Rule 30(b)(6) 
witness testified multiple times that the CEO was the “main decision-maker” on 
relevant issues. 2010 WL 1644944, *2 (N.D. Cal. Apr. 22, 2010). Conversely, here, 
BANA’s motion (at Sections I.C. & II) showed there was clear error not only in how 
 
ancillary (and dubious) due process, fiduciary duty, and implied covenant of good 
faith claims—further demonstrating the pretextual request. 
3 See, e.g., Bicek v. C & S Wholesale Grocers, Inc., 2013 WL 5425345, at *5 (E.D. 
Cal. Sept. 27, 2013); Pilot, Inc. v. Cub Elecparts, Inc., 2015 WL 13918235, at *2 
(C.D. Cal. Dec. 7, 2015); Kanter v. Cont'l Airlines, Inc., 2010 WL 11601555, at *1 
(S.D. Fla. Apr. 16, 2010); EchoStar Satellite, LLC v. Splash Media Partners, L.P., 
2009 WL 1328226, at *2 (D. Colo. May 11, 2009).  
 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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the apex standard was applied, but also in the Court’s interpretation and analysis of 
the facts, separate and apart from the allocation of burden. See also infra Section II. 
B. The Order improperly applied the apex doctrine. 
Plaintiffs do not meaningfully respond to BANA’s argument that the Order 
improperly imposed a prerequisite burden on BANA to show prejudice, another clear 
error. Recon. Mot. at 5-6. Courts in this Circuit consistently hold that a specific 
showing of prejudice is not required because the prejudice to an apex executive is 
self-evident. See id. (citing cases). Indeed, requiring this additional showing could 
subject apex witnesses to the “tremendous potential for abuse or harassment” courts 
have found is “inherent in such a deposition.” Apple Inc. v. Samsung Electronics Co., 
Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012); Greer v. Cnty. of San Diego, 2022 WL 
2134601, at *1 (S.D. Cal. June 14, 2022) (emphasis added).  
Plaintiffs also offer no real response to BANA’s argument that the Order 
misstated the standard for an apex deposition, suggesting that “some knowledge” 
may be enough. See Recon. Mot. at 7. Plaintiffs simply cite In re Uber Technologies, 
Inc. Passenger Sexual Assault Litig, 2025 WL 896412, at *2 (N.D. Cal. Mar. 24, 
2025), in which another district court readily acknowledged that other courts have 
applied a more rigorous standard and barred apex depositions, but “respectfully 
disagree[d]” and rejected the idea of “hard and fast rules for when [apex] depositions 
are permissible.” See Recon. Opp. at 8.4 The Order’s reference to a lesser standard is 
clear error irrespective of who has the burden, and the record further does not show 
that either Mr. Moynihan or Mr. Montag had the requisite level of unique, non-
repetitive knowledge.  
 
4 In re Uber is further distinguishable because there the court found (and defendants 
did not contest) that the heart of plaintiffs’ claims concerned “important aspects” of 
Uber’s overall “business model that are plainly the result of high-level executive 
decisions.” Id. at *3. In contrast, here, Plaintiffs challenge a specific fraud strategy 
(the CFF) and 
 
 
. See generally Mot., Reply, Recon. Mot. 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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C. The Order ignored Plaintiffs’ failure to exhaust. 
Plaintiffs do not dispute that the Order failed to consider the exhaustion prong 
of the apex doctrine. See Recon. Opp. at 8-11. Instead, Plaintiffs disingenuously 
argue that BANA “expressly waived” the argument. Id. at 9. But as the language 
Plaintiffs quote in their brief makes clear, all BANA agreed to waive was its right to 
object to the apex depositions on the ground that Plaintiffs did not depose “other 
individuals identified in response to Interrogatory No. 11.” Id. (emphasis added). 
That is, BANA agreed not to argue that Plaintiffs failed to satisfy the exhaustion 
requirement because they did not depose four additional individuals that were 
identified in that interrogatory. Dkt. 454-8 (“Riffee Decl.”), Ex. 7.  
BANA never waived, and has consistently maintained that the apex doctrine 
protects its top executives from deposition unless Plaintiffs first exhaust other less 
burdensome means of discovery. See Dkt. 452 (“Mot.”) at 12-15, 22-23; Dkt. 471 
(“Reply”) at 1, 3-5. Plaintiffs still have not done so. Indeed, Plaintiffs do not dispute 
that they never sought to depose relevant individuals not identified in Interrogatory 
No. 11, including Cathy Bessant or any of the other MTM members 
 
 
. See 
Recon. Mot. at 8. The opposition attempts to undermine the relevance of these 
individuals, but the undisputed record makes plain that these individuals are far more 
likely to have relevant discoverable information than the top two executives.  
To the extent Plaintiffs complain that Ms. Bessant and the other MTM 
members were not identified in BANA’s initial disclosures or in response to 
Interrogatory No. 11 (Recon. Opp. at 11), this is a red herring. Plaintiffs have known 
about these potential witnesses for years. Ms. Bessant and Dean Athanasia—and 
their relevant reporting lines—were each disclosed in a detailed organizational chart 
in October 2023, and were among the first BANA executives whose ESI was 
produced to Plaintiffs more than a year ago. Declaration of Lindsay E. Hoyle 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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(“Recon. Hoyle Decl.”), ¶¶ 4-5.  
Plaintiffs also claim they did not need to depose Jose Firpi because he “appears 
only on two relevant emails.” Recon. Opp. at 10. But it is Plaintiffs who contend 
these are key emails providing the basis for Plaintiffs’ belief that the apex executives 
have unique knowledge, and the sole basis for Plaintiffs’ contention that they had 
relevant one-on-one conversations. See Dkt. 464 (“Opp.”) at 10-11. To the extent 
Plaintiffs now seek to disavow Mr. Firpi’s importance or knowledge of relevant facts, 
that disavowal only further shows why it was clear error for the Court to give any 
credence to Mr. Firpi’s speculation. See Mot. at 13-14, 20; Reply at 5. 
BANA did not waive these arguments. 
 and 
the relevance of other MTM members were raised in response to arguments and 
theories Plaintiffs raised in their opposition to BANA’s motion as a basis for taking 
Mr. Moynihan’s deposition. See Opp. at 13 
 
 
 Such arguments and evidence are plainly 
permissible for a reply. Shriners v. United States, 2017 WL 3412299, at *5, n.6 (S.D. 
Cal. Aug. 8, 2017) (“Court may properly consider evidence and arguments submitted 
with a reply that is responsive to points raised in the non-moving party’s opposition”). 
Moreover, Plaintiffs’ claim of waiver (Recon. Opp. at 11) further underscores why 
the Order’s erroneous placement of the burden on BANA matters. By negotiated 
agreement, BANA had to brief this issue without knowing precisely the arguments 
that Plaintiffs would raise to seek to compel apex depositions. Once it became clear 
that Plaintiffs’ theory was primarily focused on a 
 
, BANA responded with evidence 
to rebut Plaintiffs’ speculation. It would be fundamentally unfair if BANA were 
found to have “waived” a response to an argument it had yet to see.  
Finally, Plaintiffs say that BANA’s “quibbles with Plaintiffs’ deposition 
questions” do not constitute a challenge to Plaintiffs’ failure to exhaust. Recon. Opp. 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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at 10. This, too, is incorrect. In Affinity Labs of Tex. v. Apple, Inc., the court found 
that Affinity failed to exhaust less burdensome means of discovery precisely because 
it “did not ask Apple’s Rule 30(b)(6) witness on financial topics a single question 
about” statements by Apple’s CEO that it claimed supported the need to depose the 
CEO. 2011 WL 1753982, at *14 (N.D. Cal. May 9, 2011). Similarly, in Ceiva Logic, 
Inc. v. Amazon, Inc., the court denied the apex deposition because the plaintiff had 
“not demonstrated [] exhaustion” where he failed to ask sufficient questions of other 
witnesses on the topic plaintiff claimed required apex testimony. 2021 WL 
12349625, at *21 (C.D. Cal. Nov. 10, 2021). Moreover, Plaintiffs do not offer a single 
supporting case for their argument that failure to ask questions (or avoiding entirely 
asking about particular documents) is not a failure to exhaust.  
Plaintiffs suggest that they should be excused from the exhaustion requirement 
because depositions were taken on an expedited schedule without the benefit of 
documents. See Recon. Opp. at 10, n.5. This is both disingenuous and wrong. 
Plaintiffs chose to wait until the very end of fact discovery to take all but one fact 
deposition in this case even though document discovery was substantially complete 
by July 2024, with most ESI having been produced by April 2024. Recon. Hoyle 
Decl. ¶ 6. Prior to noticing the apex depositions, Plaintiffs had taken a Rule 30(b)(6) 
deposition and one fact deposition. Riffee Decl. ¶¶ 9-14. At that point, there were 
only two months remaining in the fact discovery period, and Plaintiffs noticed six 
remaining depositions to take place during the last several weeks of fact discovery in 
December 2024. Recon. Hoyle Decl. ¶¶ 7-9. At any point prior, Plaintiffs could have 
noticed other depositions, but they chose not to.5 And the only reason Plaintiffs took 
the four additional depositions of individuals identified in response to Interrogatory 
No. 11—who Plaintiffs must concede had far more unique relevant knowledge than 
 
5 Plaintiffs also grumble that “discovery has been an uphill battle” (Recon. Opp. at 
10, n.6), but this does not excuse Plaintiffs’ failure to even seek relevant discovery 
from less burdensome sources before jumping right to BANA’s top executives. 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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Messrs. Moynihan and Montag—was because Judge Berg forced them to before he 
would consider their request to depose the top executives. Riffee Decl. ¶¶ 25-26.6 
II. 
The Order Misinterpreted and/or Ignored Key Relevant Evidence.  
The Order’s conclusion that Messrs. Moynihan and Montag likely possessed 
unique non-repetitive knowledge is also clearly erroneous because it is not supported 
by the factual record. Plaintiffs’ opposition simply reiterates the inferences they 
prefer the Court to draw, and says that the Court agreed with them the first time so 
should agree with them again. See Recon. Opp. at 12-17. However, BANA’s motion 
explained that the inferences Plaintiffs advocate for, and the conclusions reached in 
the Order, are not supported by facts. See Recon. Mot. at Section II. Plaintiffs’ 
opposition responds to very few of BANA’s arguments, and even the responses 
offered are unpersuasive. For example: 
 
Plaintiffs ignore BANA’s argument that because the Court relied on 
purported discussions or meetings that Messrs. Moynihan and Montag had with other 
BANA employees, it by definition relied on information that is neither unique nor 
non-repetitive, which does not satisfy the apex standard. See Recon. Mot. at 9. 
 
Plaintiffs highlight a critical factual inconsistency in the Order’s analysis 
that exposes the untenability of their theory of CFF approval, and demonstrates why 
the Order’s conclusion warrants reconsideration. See Recon. Opp. at 13. The Order 
acknowledges that the evidence shows that “
 
.” Order at 13. 
 
6 At a minimum, if the Court is not inclined to preclude Plaintiffs from taking 
depositions of Messrs. Moynihan and Montag, it should reduce the time for each 
deposition, as Judge Berg initially proposed. See Recon. Mot. at 14. Plaintiffs took 
only two-hour depositions of Bill Fox (the head of GFC who oversaw the 
development of and presented the CFF), Paul Simpson (the head of GBAM whose 
group oversaw call centers), and Jenn Ehresman (the head of Claims who oversaw 
the implementation of the CFF). Mot. at 6. It would make no sense to allow Plaintiffs 
to take twice as much time with Mr. Moynihan, and the same amount of time with 
Mr. Montag, as they had with 
 
.  
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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Plaintiffs attempt to get around this by speculating that Mr. Moynihan (or one of his 
direct reports) then approved the CFF again on September 28, 2020. See Recon. Opp. 
at 14. But the problem with Plaintiffs’ theory—and the Court’s analysis—is that Mr. 
Ahmad, the person who Plaintiffs say 
 
. Recon. Mot. at 9-10. The Court 
posited that Mr. Ahmad 
 
 (Order at 15), but there is no evidence in the record that 
, and that is not the basis on which Plaintiffs seek 
Mr. Moynihan’s deposition. Opp. at 13 
 
 
). Even now, Plaintiffs’ theory is still that it was Mr. 
Ahmad—not someone else—
 
. See Recon. Opp. at 14. 
 
, and that should be the death knell for Plaintiffs’ theory. 
 
Plaintiffs continue to reference 
 
 to support their theory. See Recon. Opp. at 
12-13. But they have no response to the affirmative evidence that BANA put forward 
that Mr. Moynihan 
. See Recon. Mot. at 11. 
 
Plaintiffs—and the Order—rely on hearsay communications from 
 
 to conclude that the record supports the 
inference that Mr. Moynihan or his direct reports 
. See Recon. Opp. 
at 13. This inference is not warranted given the absence of any evidence to confirm 
the so-called “inference,” and given that the only direct evidence on this point refutes 
Mr. Moynihan’s involvement. See Recon. Mot. at 9-10. 
BANA’s brief set forth why these and other inferences drawn by the Court’s 
Order are not supported. Plaintiffs’ opposition simply repeats those inferences, 
without addressing BANA’s arguments for why they should be reconsidered given 
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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the undisputed facts. Thus, Plaintiffs’ request for the depositions should be denied. 
III. 
Alternatively, The Court Should Certify The Order For Appeal. 
Plaintiffs concede that there is no clear precedent in the Ninth Circuit for 
district courts’ treatment of apex deposition requests. Indeed, Plaintiffs cite In re 
Uber for exactly this point. See Recon. Opp. at 8; supra at 4. As BANA’s brief 
explained, while there is disagreement among district courts about how precisely to 
treat requests for apex depositions, there is nonetheless widespread agreement that 
they should not be treated the same as other deposition requests given the tremendous 
potential for harassment. Recon. Mot. at 15-16. Presumably for this reason, Plaintiffs 
offer no response to BANA’s argument that the confusion within the Circuit weighs 
in favor of interlocutory review. See Recon. Mot. at 15-17. Plaintiffs further offer no 
response to the fact that the Order may allow for executive depositions every time a 
plaintiff seeks punitive damages under California law, which even the Uber court 
cautioned against. See Recon. Mot. at 17; see also Uber, 2025 WL 896412, *3 
(warning that decision does “not [] suggest that any claim for punitive damages, or 
even any MDL involving punitive damages, always warrants an ‘apex’ deposition”). 
Plaintiffs’ other arguments against interlocutory review and prejudice 
associated with delay of the depositions are also unpersuasive. Plaintiffs agree that 
the depositions are limited solely to punitive damages. These issues are (1) 
completely irrelevant now because Plaintiffs have yet to prove liability for any claim, 
and (2) relevant to only a small and dubious aspect of Plaintiffs’ remaining common 
law claims. See Recon. Mot. at 19; see also Reply at 8, n.4. 
* 
* 
* 
For the foregoing reasons, and the reasons stated in BANA’s opening brief, 
BANA respectfully requests that the Court reconsider the Order or, in the alternative, 
certify the Order for interlocutory appeal, and stay the depositions. 
Dated:   August 8, 2025 
Respectfully submitted, 
By: s/ Matthew L. Riffee
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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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) 
mnazareth@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650 
San Diego, CA 92101
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REPLY ISO DEFENDANT’S MOT. TO RECONSIDER                                                                   CASE NO.: 3:21-md-02992-GPC-MSB
 
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Attorneys for Defendant 
BANK OF AMERICA, N.A.
 
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