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MEMORANDUM OF POINTS & AUTHORITIES 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]
FILED PROVISIONALLY
UNDER SEAL PURSUANT TO
STIPULATED PROTECTIVE
ORDER
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 TO RECONSIDER MAY
29, 2025 ORDER GRANTING IN
PART AND DENYING IN PART
DEFENDANT’S MOTION FOR
PROTECTIVE ORDER
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
Date:
September 19, 2025
Time:
1:30 P.M.
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TABLE OF CONTENTS
RELEVANT BACKGROUND .................................................................................. 1
ARGUMENT .............................................................................................................. 3
I. The Court Should Reconsider the Order Because It Includes Multiple Clear
Legal Errors. ............................................................................................................ 3
A.
The Order improperly placed the burden on BANA to show why the
depositions should not go forward. ...................................................................... 3
B.
The Order improperly required BANA to demonstrate prejudice. ............. 5
C.
The Order’s interpretation and application of the apex doctrine was
erroneous. ............................................................................................................. 6
II.
The Court Should Reconsider the Order Because It Misinterpreted and/or
Ignored Key Relevant Facts and Testimony. .......................................................... 9
III.
In the Alternative, If the Court Denies BANA’s Motion, It Should Certify
the Order for Interlocutory Appeal Under Section 1292(b). ................................. 14
A.
The Order involves controlling questions of law on the standard for an
apex deposition and courts are divided on those questions. .............................. 15
B.
An immediate appeal of the Order may materially advance the ultimate
termination of this litigation. .............................................................................. 17
IV.
The Court Should Stay the Depositions Pending Resolution of This Motion
and BANA’s Efforts to Seek Appellate Review, If Permitted. ............................. 18
CONCLUSION ......................................................................................................... 19
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TABLE OF AUTHORITIES
Page(s)
Cases
Affinity Labs. of Texas v. Apple, Inc.,
2011 WL 1753982 (N.D. Cal. May 9, 2011) ....................................................... 6
Anderson v. Air W., Inc.,
542 F.2d 1090 (9th Cir. 1976) ........................................................................ 7, 16
Apple Inc. v. Samsung Electronics Co., Ltd.,
282 F.R.D. 259 (N.D. Cal. 2012) ......................................................................... 5
Blankenship v. Hearst Corp.,
519 F.2d 418 (9th Cir. 1975) ...................................................................... 4, 7, 16
Canchola v. Allstate Ins. Co.,
2025 WL 1377817 (C.D. Cal. Apr. 17, 2025) .................................................... 18
Cannavan v. Cnty. of Ventura,
2021 WL 4945186 (C.D. Cal. July 16, 2021) ...................................................... 5
Celerity, Inc. v. Ultra Clean Holding, Inc.,
2007 WL 205067 (N.D. Cal. Jan. 25, 2007) ........................................................ 5
In re F.D.I.C.,
58 F.3d 1055 (5th Cir. 1995) .............................................................................. 18
Forrest v. Facebook, Inc.,
2023 WL 1931356 (N.D. Cal. Jan. 18, 2023) .................................................... 18
Gen. Star. Indem. Co. v. Platinum Indem. Co.,
210 F.R.D. 80 (S.D.N.Y. 2002) .......................................................................... 12
In re Google Litig.,
2011 WL 4985279 (N.D. Cal. Oct. 19, 2011) ............................................ 6, 7, 14
Greer v. Cnty. of San Diego,
2022 WL 2134601 (S.D. Cal. June 14, 2022) .................................................. 3, 5
Jones v. PGA Tour, Inc.,
2023 WL 2541326 (N.D. Cal. Mar. 15, 2023) ................................................... 18
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Kendrick v. Carter Bank & Tr., Inc.,
2025 WL 879703 (4th Cir. Mar. 21, 2025) (unpublished) ................................. 16
Kona Enters, Inc. v. Estate of Bishop,
229 F.3d 877 (9th Cir. 2000) ................................................................................ 3
Mansourian v. Board of Regents of University of California at Davis,
2007 WL 4557104 (E.D. Cal. Dec. 21, 2007) ...................................................... 4
Marsh v. Cnty. of San Diego,
2008 WL 11411591 (S.D. Cal. Sept. 23, 2008) ................................................... 3
Mohawk Indus. v. Carpenter,
558 U.S. 100 (2009) ..................................................................................... 15, 18
Myles v. Cnty. of San Diego,
2016 WL 4366543 (S.D. Cal. Aug. 15, 2016) ..................................................... 3
In re Nat’l W. Life Ins. Deferred Annuities Litigation,
2011 WL 1304587 (S.D. Cal. Apr. 6, 2011) ........................................................ 4
In re Off. of the Utah Att’y Gen.,
56 F.4th 1254 (10th Cir. 2022) ........................................................................... 18
In re Paxton,
60 F.4th 252 (5th Cir. 2023) ........................................................................... 6, 17
Schmitz v. Asman,
2023 WL 3224474 (E.D. Cal. May 3, 2023) ...................................................... 19
Serrano v. Cintas Corp.,
699 F.3d 884 (6th Cir. 2012) .............................................................................. 17
Skillz Platform Inc. v. AviaGames Inc.,
2023 WL 7283886 (N.D. Cal. Nov. 2, 2023) ..................................................... 18
Thomas v. Cate,
2010 WL 13434789 (E.D. Cal. Apr. 5, 2010) ...................................................... 3
In re U.S. Dep’t of Educ.,
25 F.4th 692 (9th Cir. 2022) ............................................................................... 18
Wood v. McEwen,
644 F.2d 797 (9th Cir. 1981) .............................................................................. 19
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Statutes
28 U.S.C. § 1292(b) ........................................................................................... 14, 15
Other Authorities
Federal Rule of Civil Procedure 26(c) ........................................................... 5, 16, 17
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Bank of America, N.A. (“BANA”) respectfully moves for reconsideration of
the Court’s May 29, 2025 Order Granting in Part and Denying in Part Defendant’s
Motion for Protective Order, filed under seal at Dkt. 487 (the “Order”). The Court
should reconsider the Order because it includes multiple clear errors, both legal and
factual. The legal errors include improper shifting of the burden to BANA,
imposition of the erroneous requirement that BANA show prejudice to the apex
deponents, and an erroneous analysis and application of the apex doctrine’s two
prongs. See Section I. The factual errors allowed the Court wrongly to conclude that
Mr. Moynihan and Mr. Montag “likely” or “may” have “unique first-hand, non-
repetitive knowledge” regarding Plaintiffs’ claim for punitive damages when that
inference cannot reasonably be drawn from the evidence presented. See Section II.
BANA respectfully believes that each and all of these errors merit reconsideration,
and that accounting for these errors would result in the denial of Plaintiffs’ request
for depositions of BANA’s top two executives.
Additionally, and in the alternative, if the Court were to deny BANA’s motion
for reconsideration, BANA respectfully requests that the Court certify the Order for
an interlocutory appeal. An interlocutory appeal would be merited because BANA
has identified issues related to controlling law pertaining to the burdens, requisite
showing, and general applicability of the apex doctrine in this Circuit. Further, an
appeal would allow the Ninth Circuit to potentially state and clarify its position on
the apex doctrine, which this Court acknowledged has not been definitively stated.
See Section III.
RELEVANT BACKGROUND
On October 11, 2024, Plaintiffs served notices of deposition for Messrs.
Moynihan and Montag. Dkt. 454 (“Riffee Decl.”) ¶ 14. BANA objected to the
depositions, in part, because they were prohibited by the apex doctrine. Id. Plaintiffs
notified Magistrate Judge Berg of the dispute on December 5, 2024, and Judge Berg
ordered simultaneous informal briefing on the issue. Id. ¶ 23. On December 23, 2024,
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Judge Berg issued a tentative ruling precluding Plaintiffs from taking Messrs.
Moynihan’s and Montag’s depositions because they had not exhausted efforts to take
discovery through less burdensome means. Id. ¶ 25. After taking additional
depositions, Plaintiffs again brought the issue before Judge Berg, and Judge Berg
ordered a second round of informal simultaneous briefing. Id. ¶ 28. Following the
informal discovery conference, Judge Berg granted Plaintiffs limited depositions on
March 12, 2025, which would have permitted Plaintiffs to take a two-hour deposition
of Mr. Moynihan and a one-hour deposition of Mr. Montag. Id. ¶ 30. Plaintiffs
unilaterally rejected the tentative ruling, bringing the issue to this Court. Id. ¶ 31.
To prevent the imminent abuse and harassment of its top two executives,
BANA agreed to a briefing schedule whereby it would move for a protective order
precluding the depositions of Messrs. Moynihan and Montag. The motion was fully
briefed by May 2, 2025. See Dkt. 471 (“Reply”). On May 29, 2025, the Court issued
the Order Granting in Part and Denying in Part BANA’s motion, finding that: (1)
BANA had the burden to show that the depositions should not go forward, Order at
7-8; (2) BANA had a threshold obligation to demonstrate prejudice to Messrs.
Moynihan and Montag from allowing the depositions, id. at 8-9; (3) there was no
dispute as to the apex doctrine’s “exhaustion” requirement, id. at 9 n.4; and (4)
Messrs. Moynihan and Montag likely had unique, non-repetitive information
regarding Plaintiffs’ claims for punitive damages, id. at 14, 16, 18. In so finding, the
Order relied on the Court’s prior determination, based on its interpretation of
California’s punitive damages statute (which is relevant only to Plaintiffs’ common
law claims, which are dubious at best), that information about “the motive, intent or
knowledge
to
support
punitive
damages
concerning
the
development,
implementation, and authorization of the CFF can only be obtained by [Messrs.
Moynihan and Montag] and not from sources already designated.” Id. at 3 (citing
Dkt. 298 at 11).
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ARGUMENT
A motion for reconsideration can be granted where an order demonstrates that
“the district court . . . committed clear error . . . .” Kona Enters, Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000). While a motion for reconsideration is “not
a way to reargue a previous position,” it provides an opportunity for the district court
to revisit a prior decision that either applied the wrong legal standard or applied the
correct legal standard inconsistently or erroneously to the facts of the case. Marsh v.
Cnty. of San Diego, 2008 WL 11411591, at *1 (S.D. Cal. Sept. 23, 2008).
I.
The Court Should Reconsider the Order Because It Includes Multiple
Clear Legal Errors.
A. The Order improperly placed the burden on BANA to show why the
depositions should not go forward.
The Order placed the burden on BANA to show why the depositions should
not go forward solely because BANA had filed the specific motion before the Court.
See Order at 7. But, as the cases cited by BANA show, once the party resisting the
deposition shows that the deponent is a high-level executive subject to the apex
doctrine, the burden is on the party seeking the deposition to show that the apex
doctrine’s requirements are satisfied. See Dkt. 452 (“Mot.”) at 8-9 (citing Greer v.
Cnty. of San Diego, 2022 WL 2134601 (S.D. Cal. June 14, 2022); Ramirez v.
Zimmerman, 2019 WL 2106594 (S.D. Cal. May 14, 2019)). Other cases from this
Circuit confirm that the burden shifts to the seeking party once it is plain that the
target deponent is “entitled to invoke the privilege” by being “sufficiently high-
ranking to merit protection.” See, e.g., Myles v. Cnty. of San Diego, 2016 WL
4366543, at *3 (S.D. Cal. Aug. 15, 2016); Thomas v. Cate, 2010 WL 1343789, at *1
(E.D. Cal. Apr. 5, 2010). Moreover, as explained, at 1-2, it was Plaintiffs that first
sought Court intervention on the apex issue, including at the first two IDCs before
Judge Berg (where the issue was simultaneously briefed), and then through the joint
status report before the Court. Further, the Order’s assignment of burden would have
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the unintended effects of penalizing a party for seeking a protective order and
incentivizing litigants to force the other party to move to compel.
To the extent the Order relies on cases that articulate a different burden, those
cases are outliers that demonstrate the disagreement and confusion among district
courts in the Ninth Circuit on this issue. For example, the Order cites a footnote in In
re Nat’l W. Life Ins. Deferred Annuities Litigation, 2011 WL 1304587, at *4 n.2 (S.D.
Cal. Apr. 6, 2011), for the proposition that BANA should bear the burden. Order at
8. But the court in that case ordered the requested depositions only upon a “find[ing]
that Plaintiffs have made a sufficient showing to establish their need to depose [the
executives].” In re Nat’l W. Life, 2011 WL 1304587, at *4 (emphasis added). And in
Mansourian v. Board of Regents of University of California at Davis, the court
acknowledged “the burden-shifting approach applied by some courts,” including that
“it may indeed be appropriate where a party truly seeks to depose” an apex witness
“for no purpose other than harassment,” even as it reached the opposite result. 2007
WL 4557104, at *3, n.2 (E.D. Cal. Dec. 21, 2007).1
As the Order acknowledges, there is “no[] dispute that Mr. Moynihan . . . and Mr.
Montag . . . are high-level executives subject to the apex deposition doctrine.” Order
at 7. Therefore, the Order improperly shifted the burden to BANA.
1 The Order’s reliance on Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975)
is misplaced. See Order at 8. In that case, the Ninth Circuit’s discussion of the legal
standard for deposing high-level executives was high-level and brief, and it should
not be read as a definitive statement on the burden of proof. Blankenship, 519 F. 2d
at 429. Moreover, the defendant in Blankenship only argued that the executive
deposition would be duplicative of other discovery, and plaintiffs countered with
information that he might have that others did not. Id. (“Defendants’ sole objection
to the deposition is that what George Hearst had to offer would be repetitious with
what plaintiff had learned from other sources.”). Here, BANA argued that Mr.
Moynihan has no relevant knowledge, and in any event, Plaintiffs have not
established that either Mr. Moynihan or Mr. Montag actually have unique and
relevant knowledge that others do not. See Mot. at 11-19 (Mr. Moynihan), 19-22 (Mr.
Montag); Reply at 2-7 (Mr. Moynihan), 7-10 (Mr. Montag).
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B. The Order improperly required BANA to demonstrate prejudice.
The Order also contained clear error because it improperly relied on general
(i.e., non-apex) Rule 26(c) caselaw to penalize BANA for not articulating any
“specific prejudice or harm” from the potential depositions. See Order at 9. As a
threshold matter, the prejudice to BANA and the executive witnesses is self-evident
for all the reasons explained in BANA’s briefing. See Mot. at 9-24; Reply at 2-10.
High-ranking executives are incredibly busy and litigants often seek their depositions
for abusive purposes or to try to force settlement. See Apple Inc. v. Samsung
Electronics Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (depositions of high-
level executives “create[] 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)
(same); Cannavan v. Cnty. of Ventura, 2021 WL 4945186, at *6 (C.D. Cal. July 16,
2021) (same). Indeed, Plaintiffs’ counsel candidly told Judge Berg long ago that such
was their precise litigation strategy here. Mot. at 2; Dkt. 209-1 ¶ 10 (top executive
emails “settle cases”).
Requiring an additional showing of prejudice would lead to further abuse and
burden, and render the apex doctrine a nullity—effectively treating an apex witness
like any other witness. But the apex doctrine exists precisely to protect high-ranking
executives and officials from the aggregate burden associated with constant
litigation-related demands on their time, and the “‘potential for abuse or harassment’
inherent in such a deposition.” Greer v. Cnty. of San Diego, 2022 WL 2134601, at
*1 (emphasis added). That is precisely why district courts in this circuit have held
that the apex doctrine does not require a showing of prejudice or harm once the party
resisting the deposition establishes that the deponent is a sufficiently high-ranking
executive to be subject to the apex doctrine’s protections.2 See Mot. at 8 (citing In re
2 While the Ninth Circuit has not weighed in on the prejudice issue yet, at least one
Court of Appeals has adopted the presumptive view that an apex deposition will
interfere with a high-ranking official’s duty, even absent a specific showing of harm.
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Google Litig., 2011 WL 4985279, at *2 (N.D. Cal. Oct. 19, 2011) (the resisting party
need only establish that the apex executive is sufficiently senior to warrant protection
before shifting the burden to the seeking party to demonstrate that the two prongs of
the apex doctrine are satisfied)); see also Affinity Labs. of Texas v. Apple, Inc., 2011
WL 1753982, at *17 (N.D. Cal. May 9, 2011) (denying apex deposition because
plaintiff “fail[ed] to show that Steve Jobs has unique and personal knowledge of facts
relevant to this litigation, which cannot be obtained through less intrusive
discovery”). Requiring an additional showing could subject apex witnesses to serial
harassment due to the difficulty of establishing burden in any one case, even where
the cumulative impact and threats are significant.
Therefore, the Order improperly required BANA to demonstrate prejudice to
preclude the depositions.
C. The Order’s interpretation and application of the apex doctrine was
erroneous.
The apex doctrine requires the party seeking to depose a high-level executive
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.” See Mot. at 8 (quoting In re Google Litig., 2011 WL 4985279,
at *2). The Order’s interpretation and application of the doctrine is clearly erroneous.
See In re Paxton, 60 F.4th 252, 258 (5th Cir. 2023). According to the Fifth Circuit,
“[b]efore requiring such ‘apex’ testimony, courts must consider: (1) the deponent’s
high-ranking status; (2) the substantive reasons for the deposition; and (3) the
potential burden the deposition would impose on the deponent.” Id. at 258. Harm is
one of the factors in this analysis, but it is ultimately an abuse of discretion for the
district court to “compel[] apex testimony absent extraordinary circumstances.” Id.
And in situations where the information at issue can be obtained from other sources,
“apex testimony is justified only in the ‘rarest of cases.’” Id. Under this analysis, the
target deponent does not need to make a separate showing of harm (beyond what is
already presumed based on his or her position) so long as the information at issue
could be obtained from another source. See id.
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With respect to prong (1), the Order invoked the correct standard (at 6), but
nonetheless applied it inconsistently and placed either too low a burden on Plaintiffs
to show or too high a burden on BANA to refute that BANA’s top two executives
possessed the requisite knowledge. First, the Order stated—relying on the Ninth
Circuit’s decision in Blankenship—that “[a]s long as the apex executive has some
first-hand knowledge of relevant facts, the deposition should be allowed.” Order at
11 (citing Blankenship, 519 F.2d at 429). That is a far more permissive standard that
would have the effect of gutting the apex doctrine entirely, and Blankenship does not
support it. Compare In re Google Litig., 2011 WL 4985279, at *2 (apex prong (1)
requires that deponent “has unique first-hand, non-repetitive knowledge”).
Blankenship included very little reasoning on the apex issue, but the Ninth Circuit
nonetheless found that the plaintiff there argued that George Hearst “might have” had
“possible information . . . that others did not,” 519 F.2d at 429, suggesting that the
purported knowledge of the executive deponent must be unique (i.e., “some”
knowledge is not enough).
Second, the Order cites the Ninth Circuit’s decision in Anderson for the
proposition that “some knowledge” might be enough to justify an apex deposition.
Order at 7 (quoting Anderson v. Air W., Inc., 542 F.2d 1090, 1093 (9th Cir. 1976)).
But the Ninth Circuit’s decision in Anderson is not instructive because it did not
include any assessment of the apex doctrine or the record in that case because the
appellants did not challenge the district court’s denial of a protective order. Anderson,
542 F.2d at 1093.
With respect to prong (2), the Order erroneously concluded that the parties “do
not dispute” exhaustion, and therefore the Order did not address this factor. Order at
9 n.4. BANA’s briefing made clear that, despite taking certain additional depositions
ordered by Judge Berg, Plaintiffs did not use the less intrusive means at their disposal.
See, e.g., Mot. at 12-15, 22-23; Reply at 1, 3-5.
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First, Plaintiffs made no effort to take several potentially important
depositions. For example, Plaintiffs never sought to depose Cathy Bessant, the
executive
See Reply at 3; see also Dkt. 471 (“Hoyle Decl.”) ¶ 13. Plaintiffs also never
sought to depose any of the other members of the MTM, including the MTM
members who
See Reply at 4; Hoyle Decl. ¶¶ 4-6, 13. Nor did Plaintiffs make any effort to depose
Jose Firpi, even though
See Mot. at 14; Reply at 5; see also Riffee Decl. ¶ 22.
Second, at the depositions they did take, Plaintiffs elected not to ask about
many of the documents they now rely on, and generally avoided asking questions
that would expose their theory about executive involvement as unfounded. For
example, they did not ask Renee Johnson any questions about
that the Order (at 13) heavily relied on and identified as
See Mot. at 15.3 The same is true for
many of the other documents Plaintiffs now rely upon. See, e.g., Mot. at 11, 12, 13,
15, 16, 21; see also Riffee Decl. ¶¶ 9-31.
Based on this record, BANA plainly challenged Plaintiffs’ failure to seek
information from lower level BANA employees. See, e.g., Mot. at 11-16, 21-23;
Reply at 1, 3-5. The Order’s determination to the contrary, and resulting lack of
analysis of prong (2) of the apex doctrine, also constitutes clear error.
3 The other chat participant’s testimony also did not support the Court’s finding that
the CFF was approved by Mr. Moynihan. Mr. Garfield testified that
and that
Mot. at 15 (citing Dkt. 452-11, Riffee Decl. Ex. 10,
Garfield Tr. 36:4–19, 228:6–231:16).
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II.
The Court Should Reconsider the Order Because It Misinterpreted
and/or Ignored Key Relevant Facts and Testimony.
Even if the Order ostensibly applied the correct standard for prong (1) of the
apex doctrine, its conclusion that Messrs. Moynihan and Montag “likely have” or
“may have” relevant, unique first-hand knowledge based on the limited record
Plaintiffs put before the Court constitutes clear error. See Order at 11, 17.
As an instant matter, the Order repeatedly relied on Mr. Moynihan or Mr.
Montag’s purported discussions or meetings with other BANA employees, so it by
definition relied on information that is neither unique nor non-repetitive. See, e.g.,
Order at 12 (finding that
id. at 15 (relying on the fact that “
id. at 18 (relying on “
”).
Moreover, the Order relied on email records to conclude that “the record
suggests” that Mr. Moynihan approved the CFF. See Order at 12-14. But the record
actually does the opposite. Plaintiffs’ own theory is that
.4 See Dkt. 464 (“Opp.”) at 12-15 (
Yet Mr. Ahmad himself
testified
4 The Order allows that
Order at 15. That of course
could be true, but Plaintiffs’ own theory was that
See
Opp. at 13
see also Order at 13-14 (citing Dkt. 464-16, 464-62, Danitz
Exs. 14 & 60).
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. See Mot. 7, 16 and Reply 1-3; see also Dkt. 452-6, Riffee Decl. Ex.
5, Ahmad Tr. 244:18-22, 93:25-94:20. Thus, Plaintiffs’ theory—and the primary
basis on which they seek Mr. Moynihan’s deposition—simply cannot be reconciled
with the factual record.
Additionally, the Order relied heavily on
. See Order
at 12. Plaintiffs offered no testimony to support the inferences that the Order draws
from
. See Mot. at 15. As noted above (at 8), Plaintiffs elected to not even
ask Ms. Johnson about
See id. Mr. Garfield was shown
at his
deposition, and testified that
See Mot. at 15;
see also Dkt. 452-11, Riffee Decl. Ex. 10, Garfield Tr. 36:4-19, 228:6-231:16. Thus,
cannot support Plaintiffs’ claim that
because it is speculative hearsay, and refuted by
the record before the Court—particularly Mr. Ahmad’s own testimony.
Additional specific errors that appear to have impacted the Order’s analysis of
the factual record include, for example:
•
The Order incorrectly stated that
Order at 12.5 There is no
5 This finding appears to be inconsistent with the Court’s conclusion in footnote 12
of its Order that “[t]here is no evidence about the relationship between Mr. Moynihan
and the MTM and how decisions were made amongst them and directed to the mid-
level executives.” Order at 14. Even if that were true, that would further show that
Plaintiffs failed to exhaust efforts to take discovery through less burdensome
means—e.g., by
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evidence to support this statement, notwithstanding the miscited testimony.6 When
asked whether
Dkt. 464-53, Danitz Decl. Ex. 51, Fox Tr. 71:11-20. Mr. Fox did not say
that only Mr. Moynihan
had the authority to provide
approval, or that
was required for any particular action (such as the
implementation of the CFF). And in any event, the record shows
See Reply at 3; Dkt. 471-
2, Hoyle Ex. 18.
•
The Order further relied on evidence regarding
, and improperly concluded that this evidence
“suggests” that Mr. Moynihan or his direct reports approved the CFF. See Order at
12-13. But the Court’s conclusion ignored both that (1) there is no evidence that Mr.
Moynihan participated in or had any involvement in
and (2) BANA put
forward affirmative evidence indicating that
. See
Reply at 4; Hoyle Decl. ¶¶ 4-6 (privilege log entries demonstrate that
(
) or other executives who interacted with
See supra
at 8. That Plaintiffs failed to obtain such discovery should not entitle them to attempt
to obtain it from the very top and through the most burdensome means.
6 In support of this conclusion, the Order purports to cite testimony from Mr. Ahmad.
Order at 12 (citing “Dkt. No. 468-5, Riffee Decl. Ex. 5, Ahmad Depo. at 70:8-14;
71:2-23”). However, these pages from Mr. Ahmad’s deposition transcript were not
included in Riffee Decl. Ex. 5, and Mr. Ahmad never provided such testimony. It
appears the Court intended to cite the equivalent pages from Mr. Fox’s deposition
transcript. See Dkt. 464-53, Danitz Decl. Ex. 51, Fox Tr. 70:8-14, 71:2-23.
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7 Plaintiffs did not put forth any testimony or records indicating that
Nor could they, because he did not, and BANA demonstrated that
. See Reply at 3-4. While the Order acknowledged
that
it incorrectly stated that Mr. Ahmad testified that he
Order at 13. In fact, Mr.
Ahmad’s testimony was that, while he did not have an independent recollection of
the subject matter of
, after having his recollection
refreshed by the documents, he understood
Reply at 3; Dkt. 471-4, Hoyle Decl. Ex. 20, Ahmad Tr. 195:15-25; see
also Dkt. 471-2, Hoyle Decl. Ex. 18.
•
The Order cites Gen. Star. Indem. Co. v. Platinum Indem. Ltd., 210
F.R.D. 80 (S.D.N.Y. 2002), for the proposition that a deposition of an apex executive
is appropriate where the top executive “issues a corporate policy.” Order at 15. This
reliance is misplaced. There is no evidence that the CFF was a “corporate policy” of
BANA. Rather the evidence indicates that it was simply a targeted fraud strategy
designed to prevent a particular type of claims fraud that originated from the prepaid
business based on investigations and analyses conducted by
See Mot. at 17. Moreover,
the Gen. Star case is plainly distinguishable from this one. There, a lower level
executive testified that an apex witness personally “issued the [company] guidelines”
7 The Order stated that
(Order at 13), but this is incorrect. In fact, Mr. Fox testified that
. See Dkt. 464-53, Danitz Decl. Ex.
51, Fox Tr. 55:7-23
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—i.e., the “corporate policy” at issue in that case—and there was evidence in the
record that the apex witnesses personally authored memoranda regarding the
guidelines. 210 F.R.D. 81, 82. There is no evidence here that either Mr. Moynihan or
Mr. Montag ever issued or authored a single document regarding the CFF, or that
they were involved in the creation or development of the fraud strategy.
•
Finally, relying on a single email, the Order infers that BANA
Order at 16. Setting aside
whether this inference is a reasonable one (it is not—multiple BANA witnesses
testified that BANA had no such strategy), the evidence that the Order relies on as a
basis for its conclusion that Messrs. Moynihan and Montag had unique knowledge
of this purported strategy supports no such conclusion. Plaintiffs offered no evidence
that Mr. Moynihan or Mr. Montag were aware of
or long
wait times prior to or during the Customer Service Class period, much less that they
, and neither the Order nor
Plaintiffs point to any. Rather, the Order cobbles together (1) a single email chain in
which
,
and (3) the fact that waiting time for the call center may have been long when the
emails were sent to reach the completely unwarranted and clearly erroneous
conclusion that somehow Mr. Moynihan made a “decision” to extend a vendor
contract. See Order at 16. Similarly, the Order concludes that Mr. Montag
Id. at 17. But the only document the Order relies
on for this conclusion shows on its face that
Mot. at 19-20; Dkt. 464-45, Danitz Decl. Ex. 43. The Order’s reliance on Messrs.
Moynihan’s or Montag’s presence at Board meetings is also erroneous (Order at 17-
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18) because the record contains no evidence of
These errors, individually and collectively, constitute clear error in the Court’s
analysis and application of the apex doctrine’s requirement that the executives are
subject to deposition only if they have “unique firsthand, non-repetitive knowledge
of the facts at issue in the case,” and its conclusion that Mr. Moynihan and Mr.
Montag likely do. In re Google, 2011 WL 4985279, at *2. As the record
demonstrates, Plaintiffs have not established that Mr. Moynihan or Mr. Montag likely
or may have such knowledge (as they must). Rather, the record refutes that they
possessed the knowledge that Plaintiffs and the Court’s Order inferred. BANA,
therefore, respectfully requests that the Court reconsider the findings in its Order and
hold that Plaintiffs should not be permitted to take the depositions of Mr. Moynihan
or Mr. Montag.
Alternatively, if the Court is not inclined to preclude Plaintiffs from taking the
depositions of both Mr. Moynihan and Mr. Montag (which it should do for the
reasons discussed above), the Court should at least reconsider its ruling and reduce
the number of depositions from two to one. The record shows that BANA’s top
executive, Mr. Moynihan, had no direct oversight or reporting lines, and
comparatively less knowledge than
concerning the two
relevant issues. And, at a minimum, the Court should reduce the time for each
deposition by half, allowing no more than two hours for Mr. Moynihan and no more
than one hour for Mr. Montag, as Judge Berg initially proposed. See Riffee Decl.
¶ 30.
III.
In the Alternative, If the Court Denies BANA’s Motion, It Should
Certify the Order for Interlocutory Appeal Under Section 1292(b).
Certification of an order for appeal is appropriate when (1) the order “involves
a controlling question of law”; (2) there is “substantial ground for difference of
opinion” on this question; and (3) “an immediate appeal may materially advance the
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ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Here, all three
prerequisites are satisfied. Certification will allow the Ninth Circuit to review
controlling questions of law about the standard required for an apex deposition—
particularly where plaintiffs seek punitive damages under California law. There is a
substantial debate over those questions among district courts in this Circuit, and
among other circuits; allowing this appeal would enable the Ninth Circuit to provide
much-needed guidance to courts and litigants alike. Reversal of the Order’s
determination on these questions may also advance the termination of this litigation
to the extent it would allow the parties to focus on the relevant facts and law at issue
in the case, rather than Plaintiffs’ confessed desire to use executive discovery to push
settlement. Further, the Supreme Court has recognized that “district courts should not
hesitate to certify an interlocutory appeal” of a discovery issue where the “ruling
[below] involves a new legal question or is of special consequence.” Mohawk Indus.
v. Carpenter, 558 U.S. 100, 111 (2009). This is such a case.
A. The Order involves controlling questions of law on the standard for
an apex deposition and courts are divided on those questions.
As demonstrated above (at 3-8), BANA has identified multiple controlling
questions of law—including but not limited to (1) which party bears the burden when
a party seeks an apex deposition; (2) whether an apex deposition requires that the
apex deponent possess uniquely relevant information; (3) whether seeking punitive
damages under California law suffices for an apex deposition; and (4) whether the
party seeking to preclude the deposition must show specific prejudice to the witness.
At a minimum, as this Court has acknowledged, the Ninth Circuit has not spoken
directly to or provided clear guidance on the apex doctrine. Certifying these issues,
and others, would provide the Ninth Circuit with the opportunity to articulate its view
of the apex doctrine.
As the Order recognized, “the Ninth Circuit has not yet endorsed the [apex]
doctrine.” Order at 6. But there is widespread agreement among the district courts of
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this Circuit that apex depositions require special justification, even as those district
courts—and other circuits—disagree on some of the relevant particulars of the
doctrine. For example, district courts in this Circuit are divided among who bears the
burden on an apex deposition dispute. The majority of courts agree that once the
resisting party establishes that the witness is sufficiently senior to warrant apex
protection, the burden shifts to the requesting party to establish that the apex
doctrine’s two prongs have been satisfied. At the same time, other district courts—
including this Court—use the default burden allocation under Fed. R. Civ. P. 26(c)
even in the apex context, and place the burden on the moving party. See supra at 3-
4. The most recent articulations from the Ninth Circuit on the issue of executive
depositions come from Blankenship and Anderson, which were decided in 1975 and
1976, respectively, and do not articulate any meaningful standard for district courts
to apply. See supra at 7. The Ninth Circuit should have the opportunity to articulate
its view on the doctrine, particularly given its interaction with the Order’s
interpretation of California’s punitive damages statute, and the differing views of
other Courts of Appeals on the doctrine, as explained below.
Whether or not a high-level executive is subject to deposition should not
depend on the jurisdiction where the plaintiff elects to bring suit. But that is exactly
the current state of the law, with certain courts applying a “rebuttable presumption”
that the deposition should not be allowed absent a clear showing of necessity, and
others first requiring the party resisting the deposition to make a specific showing of
hardship. For example, the Fourth Circuit recently noted that the “‘apex doctrine’ has
been cited for supporting a ‘rebuttable presumption that the deposition of a high-
ranking corporate executive . . . constitutes good cause for a protective order as an
annoyance or undue burden within the meaning of Federal Rule of Civil Procedure
26(c)(1).’” Kendrick v. Carter Bank & Tr., Inc., 2025 WL 879703, at *3 n.5 (4th Cir.
Mar. 21, 2025) (unpublished) (quoting Trs. of Purdue Univ. v. Wolfspeed, Inc., 2023
WL 4564558, at *4 (M.D.N.C. July 17, 2023)). Similarly, the Fifth Circuit has held
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that it is an abuse of discretion for a district court to “compel[] apex testimony absent
extraordinary circumstances,” and that “apex testimony is justified only in the ‘rarest
of cases.’” In re Paxton, 60 F.4th 252, 258 (5th Cir. 2023). On the other end of the
spectrum, the Sixth Circuit requires a resistant apex deponent to show “one of the
harms listed in Rule 26(c)(1)(A) . . . in order to warrant a protective order.” Serrano
v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012). The Ninth Circuit should be
afforded the opportunity to weigh in on this issue and provide clear guidance to
litigants in this Circuit.
Further, Plaintiffs claim they need deposition testimony from Messrs.
Moynihan and Montag “to support an award of punitive damages.” Order at 10.
Plaintiffs’ request is based on the Court’s earlier determination that evidence
regarding “the motive, intent or knowledge to support punitive damages . . . can only
be obtained by [the executives],” because of the California statute’s requirement that
a corporate defendant is liable for punitive damages only where the “oppression,
fraud, or malice” at issue is “perpetrated, authorized, or knowingly ratified by an
officer, director, or managing agent of the corporation.” Order at 3, 10 (citing Dkt.
298 at 11 & Cal. Civ. Code § 3294(b)) (emphasis added). Thus, the Order could allow
for executive deposition testimony every time a plaintiff seeks punitive damages
from a corporation. This cannot be the case, and the Ninth Circuit should have the
opportunity to clarify.
B. An immediate appeal of the Order may materially advance the
ultimate termination of this litigation.
By Plaintiffs’ own acknowledgement, resolution of this dispute could
materially advance termination of this litigation. As the Court is aware, during an
informal discovery conference, Plaintiffs’ counsel candidly told Judge Berg that top
executive emails were necessary because “they resolve cases,” “they settle cases.”
Mot. at 2 (quoting Dkt. 209-1 ¶ 10). This is all the more true for the apex depositions,
which Plaintiffs mean to use to push BANA into a settlement of this case. The
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Supreme Court has held that “district courts should not hesitate to certify” appeals of
discovery orders of this sort even though the orders are not themselves dispositive.
See Mohawk, 558 U.S. at 111.
Indeed, Courts of Appeals have specifically demonstrated the importance of
appellate review of apex deposition disputes by granting mandamus petitions even
when district courts have not certified the issues for appeal. See, e.g., In re U.S. Dep’t
of Educ., 25 F.4th 692, 705 (9th Cir. 2022) (granting mandamus petition, and noting
that harm from having to sit for the deposition is not remediable on appeal from final
judgment, even if the evidence is excluded); see also In re F.D.I.C., 58 F.3d 1055,
1060 (5th Cir. 1995) (granting mandamus petition to relieve apex deposition); In re
Off. of the Utah Att’y Gen., 56 F.4th 1254, 1264 (10th Cir. 2022) (same).
IV.
The Court Should Stay the Depositions Pending Resolution of This
Motion and BANA’s Efforts to Seek Appellate Review, If Permitted.
In addition to the relief sought above, BANA respectfully requests that the
Court stay the depositions pending resolution of this Motion and appellate review of
this issue, if permitted. BANA would be irreparably prejudiced if the depositions
proceed before the Order is ultimately reversed or modified, either on reconsideration
or by the Ninth Circuit. Once the depositions are taken, the prejudice to BANA and
the executive deponents cannot be undone, and any relief would be moot. See In re
U.S. Dep’t of Educ., 25 F.4th at 705. There is no recourse, and no way to “unring the
bell of disclosure” after the fact. Forrest v. Facebook, Inc., 2023 WL 1931356, at *2
(N.D. Cal. Jan. 18, 2023) (granting stay pending appeal of discovery order to district
court); Skillz Platform Inc. v. AviaGames Inc., 2023 WL 7283886, at *2 (N.D. Cal.
Nov. 2, 2023) (same). If these depositions go forward, BANA would be “effectively
deprived of its ability to seek review of the Discovery Order” and “effectively denied
the relief sought in [this] motion” or appellate review. Canchola v. Allstate Ins. Co.,
2025 WL 1377817, at *3 (C.D. Cal. Apr. 17, 2025) (staying enforcement of discovery
order pending appeal to district court); Jones v. PGA Tour, Inc., 2023 WL 2541326,
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at *2 (N.D. Cal. Mar. 15, 2023) (same).
Against the plain irreparable prejudice to BANA, Plaintiffs have shown no
imminent need for this deposition testimony. The depositions, should they take place,
“shall be limited to punitive damages.” Order at 19. Plaintiffs seek punitive damages
for common law claims (see Opp. at 1) that are unlikely to survive summary
judgment, and are ancillary to their primary cause of action, for violation of EFTA,
for which punitive damages are not available. The issue of punitive damages and any
deposition testimony Plaintiffs obtain regarding those damages has nothing to do
with Plaintiffs’ primary claim, and is only potentially relevant if the applicable claims
survive summary judgment, and if Plaintiffs prove liability, which they have not yet
done and may never do. It is for this very reason that courts in this Circuit have stayed
“discovery on issues solely pertaining to punitive damages,” even longer, including
“pending resolution of dispositive motions.” See Schmitz v. Asman, 2023 WL
3224474, at *3 (E.D. Cal. May 3, 2023); see also Wood v. McEwen, 644 F.2d 797,
802 (9th Cir. 1981) (finding a stay an appropriate exercise of discretion absent
articulation of prejudice by opposing party). The Court should thus exercise its
discretion and stay enforcement of the Order pending resolution of this Motion or
appellate review of this issue.
CONCLUSION
For the foregoing reasons, and with good cause shown, BANA respectfully
requests that the Court reconsider its Order Granting In Part and Denying In Part
Defendant’s Motion for Protective Order, and issue a revised order precluding
Plaintiffs from taking the depositions of Messrs. Moynihan and Montag. In the
alternative, if the Court were to deny BANA’s motion for reconsideration, BANA
respectfully requests that the Court certify its Order for appeal, and stay the
depositions pending resolution of this Motion and any appellate review thereof.
Dated: June 26, 2025
Respectfully submitted,
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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)
mnazareth@myersnave.com
MEYERS NAVE
600 B Street, Suite 1650
Case 3:21-md-02992-GPC-MSB Document 503-1 Filed 06/26/25 PageID.29336
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MEMORANDUM OF POINTS & AUTHORITIES ISO
DEFENDANT’S MOT. TO RECONSIDER CASE NO.: 3:21-md-02992-GPC-MSB
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San Diego, CA 92101
Attorneys for Defendant
BANK OF AMERICA, N.A.
Case 3:21-md-02992-GPC-MSB Document 503-1 Filed 06/26/25 PageID.29337
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