1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 ANTHONY RAMIREZ, et al., Case No. 22-cv-00859-YGR (RMI)

9 Plaintiffs, ORDER RE: SECOND DISCOVERY 10 v. DISPUTE

11 BANK OF AMERICA, N.A., Re: Dkt. No. 86 12 Defendant.

13 14 Now pending before the court is a jointly-filed discovery dispute letter brief through which 15 Defendant seeks a protective order such as to avoid its employees being subjected to multiple 16 serial depositions, rather than each person only being deposed once. See Ltr. Br. (dkt. 86) at 3-7. 17 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), this matter is 18 suitable for disposition without oral argument. As stated herein, Defendant’s request is granted. 19 This putative class-action case alleges that Defendant Bank of America (“the Bank”) 20 promised certain pandemic-era relief programs from overdraft fees and insufficient-funds fees 21 which it never fully implemented, and terminated the limited changes it did implement without 22 notice in August of 2020. See Second Amend. Compl. (dkt. 72) at 2. Plaintiffs wish to imminently 23 depose at least two out of four current bank employees (Lance Berg, Jennifer Haag, Maggie 24 Helms, and Chris Wong) which are Rule 30(b)(6) witnesses, and one former bank employee 25 (Kathy Quaranta). Id. at 1-2. The Bank argues that because the current employees are also its Rule 26 30(b)(6) witnesses, Plaintiffs’ insistence on deposing them before Plaintiffs have propounded their 27 Rule 30(b)(6) notice on the Bank would result in these witnesses unnecessarily being deposed 1 (Kathy Quaranta) this month, while holding the other depositions in abeyance until such time as 2 Plaintiffs “would feel they were in a position to share 30(b)(6) topics and coordinate the 3 depositions of other witnesses at that point.” Id. at 4 n. 1. 4 Plaintiffs state that they will not be ready to formulate their 30(b)(6) topics until engaging 5 in further written discovery, but insist that they should be able to depose some combination of the 6 Bank’s four 30(b)(6) witnesses now – and perhaps again later – given that Plaintiffs “could not 7 provide final 30(b)(6) topics at this time because critical evidence—including class-wide data— 8 still has not been produced by the Bank and because Plaintiffs believe that the individual fact 9 witness testimony will ultimately inform their 30(b)(6) topics.” Id. However, Plaintiffs have not 10 described how or why testimony from these four current Bank employees would help shape their 11 30(b)(6) topics, nor have Plaintiffs explained why the same underlying information (i.e., that 12 which they need to help shape their 30(b)(6) topics) cannot be garnered through written discovery. 13 See id. at 5-7. In fact, Plaintiffs have not even addressed the Bank’s argument that deposing any or 14 all of its four Rule 30(b)(6) witnesses (the current employees) now would be unreasonably 15 burdensome and cumulative because those same witnesses would be deposed again after the 16 propounding of Plaintiffs’ 30(b)(6) notice and would likely be questioned on substantially 17 overlapping topics – rendering their second deposition largely cumulative. See id. at 4-5. 18 In essence, citing twice to Gopher Media, LLC v. Melone,

, 19 *5 (S.D. Cal., Oct. 27, 2022), Plaintiffs quote a fragment of a sentence from that case to assert that 20 it is unfair “to restrict Plaintiffs to noticing their lone set of Rule 30(b)(6) topics based on an 21 incomplete record and denying Plaintiffs their right to be ‘the masters of their own discovery 22 plans.’” See Ltr. Br. (dkt. 86) at 5, 7. First, the court will reiterate that Plaintiffs have by no means 23 established that their only path to formulating their Rule 30(b)(6) topics is to depose the Bank’s 24 current employees once now, and then again later once their have formulated their topics. Thus, 25 Plaintiffs’ suggestion about having to formulate their 30(b)(6) topics on an “incomplete record” 26 are conclusory and unsupported by any assertions on which the court could rely in understanding 27 that multiple serial depositions of the 30(b)(6) witnesses is the only path forward. As stated, it 1 30(b)(6) topics, and then subject the Bank’s employees to only one deposition rather than two. 2 Second, Plaintiffs’ quotation from Gopher Media is misleading in that it is a decision by a 3 || magistrate judge in the Southern District of California rejecting a request to extend a fact 4 || discovery cut-off date, and the full sentence that contained the fragment quoted by Plaintiffs 5 states: “At all times, Plaintiffs are the masters of their own discovery plans and had five months to 6 make their requests for documents, information, and deposition testimony.” Gopher Media, 2022 7 || US. Dist. LEXIS 196156, *5. Thus, contrary to Plaintiffs’ suggestion, Gopher Media cannot be 8 || claimed to stand for the proposition that a plaintiff has a right to subject the opposing party’s 9 witnesses to unreasonably burdensome and cumulative discovery by deposing its 30(b)(6) 10 || witnesses once to formulate 30(b)(6) topics, and then again later to explore those topics, because 11 of the notion that plaintiffs have a “right to be ‘the masters of their own discovery plans.’” See Ltr. 12 Br. (dkt. 5) at 8 (quoting Gopher Media,

, *5). To the extent that 13 || Plaintiffs have stated that they have a “right to develop the evidence they need before noticing 14 || 30(b)(6) topics and moving for class certification” (see id. at 7), the court finds that Plaintiffs have 3 15 not explained why deposing these witnesses twice is the only path to that end. In other words, a 16 || Plaintiffs have failed to explain why they cannot formulate their 30(b)(6) topics through written 3 17 discovery, in conjunction with other means such as accepting the Bank’s offer to depose the 18 above-mentioned former employee. See id. at 5-7. Without such an explanation, there is no basis 19 to saddle the Bank with the burden of subjecting its employees to being deposed twice rather than 20 || once. Plaintiffs have issued two deposition notices “in order to ensure that this dispute was ripe for 21 resolution.” Jd. at 7 (Chris Wong’s deposition has been noticed for July 16, and Maggie Helms’s 22 || deposition has been noticed for July 18). Thus, for the reasons stated herein, as well as the reasons 23 articulated by the Bank (see id. at 3-5), the Bank’s request for a protective order to prevent undue 24 || burden and inefficiency with respect to those noticed depositions is GRANTED. 25 IT IS SO ORDERED. 26 Dated: June 13, 2024 27 f | RQBERT M. ILLMAN 28 United States Magistrate Judge