Ramirez v. Bank of America, N.A.

Background

The plaintiffs filed a proposed class action concerning overdraft and insufficient-funds fees charged during the COVID-19 pandemic. They alleged that Bank of America promised a pandemic-long program to provide relief from those fees, did not implement the promised program, ended the limited changes it did make in August 2020 without notice, and continued to claim that a pandemic-relief program existed. The plaintiffs asserted unjust enrichment, unfair competition under California law, and unfair trade practices under New Jersey law.

The plaintiffs jointly filed a discovery-dispute letter brief seeking an order compelling the Bank to provide various documents and information. The court decided the dispute without oral argument under Federal Rule of Civil Procedure 78(b) and the applicable local rule.

Legal standard

The court explained that a party seeking to compel discovery must show that the requested information is relevant, explain why the request is justified, and show that it is proportional to the needs of the case. The moving party must also explain why the other party’s responses are inadequate or its objections unjustified. The court found that the plaintiffs did not meet these requirements.

Search terms and custodians

The plaintiffs asked the court to require the Bank to use their proposed search terms, identify everyone on its litigation hold as a potential custodian, and identify other sources where responsive documents might exist. The Bank said that search terms and custodians should be negotiated for specific requests and described its recordkeeping and search methods.

The court denied the plaintiffs’ requests concerning search terms and custodians. It found that the plaintiffs largely repeated their demands without explaining why the Bank’s responses were inadequate or its objections unjustified.

Requests for production and interrogatories

The plaintiffs sought internal communications concerning the Bank’s pandemic response, customer complaints about fee relief, changes or reversals of fees and related policies, and research about the effect of fees on customers. The Bank stated that it had produced or agreed to produce information about policy changes, fee reversals, and customer complaints, and that responsive documents for one request did not exist.

The court denied the requests to compel documents responsive to Requests for Production Nos. 1, 14, 15, and 24. It found that the plaintiffs had not adequately argued relevance or proportionality. The court also concluded that any possible relevance of documents responsive to Requests Nos. 1, 14, and 15 was outweighed by the burden of locating and producing them. As to Request No. 24, the court noted that the Bank had already confirmed that responsive documents did not exist.

The plaintiffs also sought information about fee policies that the Bank had considered but not implemented. The court denied the request for further responses, agreeing with the Bank that the requested internal communications were not relevant to whether the Bank’s public statements were misleading or whether the plaintiffs relied on them, and that producing them would be disproportionate.

The plaintiffs further sought broad documents concerning other COVID-19 policies, practices, and procedures, including documents about the duration of the pandemic that did not specifically concern the Bank’s fee-relief program. The court denied the request for further responses to Requests for Production Nos. 1, 6, and 22. It agreed that the requests could encompass irrelevant materials concerning products, programs, and local health regulations unrelated to the fee-relief allegations and were vastly disproportionate to the needs of the case.

Relevant time period

The plaintiffs asked the court to require the Bank to identify each request for which it used or intended to use a time period different from October 1, 2019, through June 30, 2022. The Bank said it had agreed to the proposed period while reserving the right not to conduct facially unreasonable searches, and that it would discuss the issue after supplementing its discovery responses.

The court denied this portion of the plaintiffs’ request, agreeing that there was no current dispute requiring resolution.

Financial information

The plaintiffs sought broader financial data about the Bank’s fee assessments, service fees, and consumer-banking revenue. The Bank said it had agreed to provide anonymized transaction-level information showing requests for hardship or relationship refunds of overdraft and insufficient-funds fees for nationwide deposit customers during the proposed discovery period. It argued that information about fees not subject to refund requests, total service fees, and consumer-banking revenue was irrelevant and disproportionate.

The court agreed and denied the plaintiffs’ request to compel any further responses to Interrogatory No. 7.

Disposition

The court denied the plaintiffs’ discovery requests, including the requests concerning search terms and custodians, Requests for Production Nos. 1, 6, 14, 15, 22, and 24, the relevant-time-period request, the requests concerning proposed policies, and Interrogatory No. 7. The order was signed by United States Magistrate Judge Robert M. Illman.