Nia v. Bank of America, N.A.

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 6 Mohammad Farshad Abdollah Nia, Case No.: 21-cv-01799-BAS-BGS

7 Plaintiff, ORDER GRANTING IN PART 8 v. PLAINTIFF’S MOTION TO COMPEL 9 BANK OF AMERICA, N.A.,

10 Defendant. [ECF 38] 11

12 On January 17, 2023, at the Court’s instruction, Plaintiff, Mohammad Farshad 13 Abdollah Nia, moved to compel responses to Requests for Production 4, 6, 8, 9, and 41 in 14 his Amended First Set of Requests for Production of Documents (RFPs), to which 15 Defendant, Bank of America, N.A., had objected on November 21, 2023.1 (ECF 38 at 1.) 16 I. Plaintiff’s RFPs 4, 6, 8, 9, and 41 17 RFP 4 generally seeks documents identifying all transactions of accountholders in 18 the last six months before the accountholder’s account was closed or suspended, 19 including information about the location of the transaction. (See ECF 38-4 at 12-13.) 20 RFPs 6, 8, and 9 seek Defendant’s communications to Iranian-citizen accountholders that 21 relate to establishing residency in the United States or notify them of requirements or 22 failures to submit residency documentation. (See ECF 38-4, 13-14.) RFP 41 seeks “[a]ll 23 records of communications between you and Plaintiff or between you and Class 24 Members, including records and transcriptions of telephone calls.” (See ECF 38-4 at 26.) 25

26 27 1 On February 22, 2023, the District Court granted Plaintiff’s motion for leave to amend his complaint, and on February 23, 2023, Plaintiff filed his First Amended Complaint 28 1 Plaintiff agrees to narrow RFP 4 to all such communications that relate to the suspension 2 or closure of the Class Members’ accounts because of failure to submit proof of 3 residency. (See ECF 38-1 at 11.) 4 A. Scope of Discovery: Relevance and Proportionality 5 Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any non- 6 privileged matter that is relevant to any party’s claim or defense and proportional to the 7 needs of the case, considering the importance of the issues at stake in the action, the 8 amount in controversy, the parties’ relative access to relevant information, the parties’ 9 resources, the importance of the discovery in resolving the issues, and whether the burden 10 or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 11 26(b)(1). “District courts have broad discretion in controlling discovery” and “in 12 determining relevancy.” Laub v. Horbaczewski, 331 F.R.D. 516, 521 (C.D. Cal. 2019) 13 (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002), and Surfvivor Media, Inc. v. 14 Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)). 15 Following the 2015 Amendments to Rule 26, it is clear that “[r]elevancy alone is 16 no longer sufficient—discovery must also be proportional to the needs of the case.” In re 17 Bard IVC Filters Prods. Liability Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016). “The 18 court’s responsibility, using all the information provided by the parties, is to consider . . . 19 [undue burden or expense and importance of information sought,] and all the other 20 factors in reaching a case-specific determination of the appropriate scope of discovery.” 21 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. In deciding 22 whether a request is unduly burdensome, a court must balance the burden to the 23 responding party against the benefit to the party seeking the discovery. Thomas v. Cate, 24 715 F. Supp. 2d 1012, 1032 (E.D. Cal. 2010) (collecting cases). 25 Rule 26(b)(2) also requires the court, on motion or on its own, to limit the 26 frequency or extent of discovery otherwise allowed by the rules if it determines that (1) 27 “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from 28 some other source that is more convenient, less burdensome, or less expensive;” (2) “the 1 party seeking discovery has had ample opportunity to obtain the information by discovery 2 in the action;” or (3) “the proposed discovery is outside the scope permitted by Rule 3 26(b)(1).” See Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). 4 B. Relevance of RFPs 6, 8, 9, and 41 5 Plaintiff’s RFPs 6, 8, and 9 seek Defendant’s communications to Iranian citizen 6 accountholders that relate to establishing residency in the United States or notify them of 7 requirements or failures to submit residency documentation. (ECF 38-4 at 12-13.) 8 Plaintiff’s RFP 41 seeks “[a]ll records of communications between you and Plaintiff or 9 between you and Class Members, including records and transcriptions of telephone 10 calls.” (ECF 38-4 at 24-25.) 11 Plaintiff argues the non-template communications are relevant to the Equal Credit 12 Opportunity Act (ECOA), 42 U.S.C. § 1981, the California Unruh Civil Rights Act and 13 California Unfair Competition Law claims. (Id.) Plaintiff also argues that proof of 14 statements similar to those Plaintiff alleges were made to him is relevant to show class 15 members’ applications were denied pursuant to a discriminatory policy and that 16 Plaintiff’s claims are typical of the class.2 (Id. at 12-13.) These non-template 17 communications are relevant to the merits of Plaintiff’s UCL claims that Defendant 18 misrepresents the requirements of its proof of residency policies and to establish the 19 class-wide uniformity and typicality of the representations. (Id. at 14.) 20 Defendant argues the RFP class definition is overly broad and hence the discovery 21 requests are overly broad. (ECF 43 at 7.) 22 The class as defined in Plaintiff’s RFPs is the following: 23 ‘Class Member’ or ‘Class Members,’ for purposes of this First Set of Requests, means current or former Bank of America credit 24 or checking account holders who were known to BANA to be, or 25 suspected by BANA of being, current or former Iranian citizens. 26

27 2 The deadline to file a motion for class certification in this case is May 5, 2023. (See 28 1 For purposes of this definition, ‘suspected by BANA of being’ includes all credit or checking account holders who were 2 evaluated, scrutinized, or monitored in any way by BANA on the 3 basis of their actual or potential residence in, financial activity in, or other association with the Islamic Republic of Iran. 4

5 (ECF 38-4 at 4.) RFPs 6, 8, 9, and 41 incorporate the RFP class definition. (See 38-4 at 6 13-14, 25-26.) Thus, the broad definition of “Class Members” from the RFPs applies to 7 RFPs 6, 8, 9, and 41.3 8 As the Court noted, Plaintiff was granted leave to and did file a FAC after filing 9 this motion. (See ECF at 46-47.) Plaintiff’s FAC defines the Nationwide Class and 10 California Subclass differently than the operative complaint at the time Plaintiff filed this 11 motion had defined those classes.4 Because Plaintiff’s FAC is the operative complaint, 12 the Court cites to it. 13 Plaintiff’s FAC defines the Nationwide Class as, 14 All present or former Bank of America (“BANA”) credit-card or checking-account holders whose accounts were restricted or 15 closed by BANA, and for whom BANA’s records or 16 correspondence with the accountholder show the account was restricted or closed due to inadequate proof of residency, and 17 who were citizens of the Islamic Republic of Iran and were 18 present in the United States on the date(s) when the restriction or closure was imposed. 19

21 3 RFP 4 generally seeks documents identifying all transactions of accountholders in the 22 last six months before the accountholder’s account was closed or suspended, including 23 information about the location of the transaction. (See ECF 38-4 at 12-13.) RFP 4, then, narrows the scope of the RFP class definition by including only Plaintiff and all Class 24 Members “whose credit or checking accounts were closed or suspended.” (ECF 38-4 at 25 13.) 4 Plaintiff’s Complaint defines the Nationwide Class as, “All present or former Bank of 26 America credit card or checking account holders with a first or last name of Iranian or 27 Middle Eastern origin who had an account closed within six months after Bank of America sent a request for documents establishing residency in the United States (the 28 1 (Am. Compl. ¶ 63; see also ECF 47 at 29.) Plaintiff’s FAC defines the Nationwide 2 Subclass5 as, 3 All present or former Bank of America (“BANA”) credit card account holders whose accounts were restricted or closed by 4 BANA, and for whom BANA’s records or correspondence with 5 the accountholder show that the account was restricted or closed due to inadequate proof of residency, and who were citizens of 6 the Islamic Republic of Iran and were present in the United States 7 on the date(s) when the restriction or closure was imposed.

8 (Am. Compl. ¶ 64; see also ECF 47 at 30.) Plaintiff’s FAC defines the California 9 Subclass as, 10 All present or former Bank of America (“BANA”) credit-card or 11 checking-account holders whose accounts were restricted or closed by BANA, and for whom BANA’s records or 12 correspondence with the accountholder show the account was 13 restricted or closed due to inadequate proof of residency, and who were citizens of the Islamic Republic of Iran and were 14 present in California on the date(s) when the restriction or closure 15 was imposed.

16 (Am. Compl. ¶ 65; see also ECF 47 at 30.) 17 Plaintiff’s FAC defines class to include accountholders whose accounts were 18 closed or restricted at any time, due to inadequate proof of residency and who were 19 present in the United States on the date the restriction or closure was imposed. (See Am. 20 Compl. ¶¶ 63, 65; see also ECF 47 at 28-29.) Thus, the FAC class definition appears to 21 be both broader than the original complaint’s class definition6—it now includes restricted 22 23 24 5 Plaintiff’s Amended Complaint adds a “Nationwide Subclass.” (Am. Compl. ¶ 64; see 25 also ECF 47 at 30.) 6 Again, Plaintiff’s Complaint defines the Nationwide Class as, “All present or former 26 Bank of America credit card or checking account holders with a first or last name of 27 Iranian or Middle Eastern origin who had an account closed within six months after Bank of America sent a request for documents establishing residency in the United States (the 28 1 accounts and closed accounts—and narrower than the original complaint class 2 definition—it includes only those accountholders present in the United States on the date 3 the restriction or closure was imposed. (Compare Compl. ¶¶ 2-3, and Am. Compl. ¶¶ 63, 4 65.) 5 As regards relevance, the discovery may show class members experienced a 6 similar course of conduct. This is relevant to show typicality. See In re Outlaw Lab’ys, 7 LP Litig., No. 18CV840 GPC (BGS), 2020 WL 1083403, at *12 (S.D. Cal. Mar. 5, 2020) 8 (holding that showing that class members experienced a similar course of conduct by the 9 opposing party is relevant to show typicality, i.e. class members suffered the same event 10 or practice or course of conduct that gave rise to the claims of other class members and 11 their claims were based on the same legal theory). 12 Further, the Court concludes that the requested discovery is also relevant to show 13 whether Defendant complied or not with ECOA’s notice requirement. It is also relevant 14 to show whether Defendant discriminated against other class members as Plaintiff has 15 alleged in his FAC or made similar alleged misrepresentations to other class members. In 16 sum, this discovery is potentially relevant to Plaintiff’s claims. 17 C. Proportionality of RFPs 6, 8, 9, and 41 18 Plaintiff requests all written communications sent to Iranian account holders. (ECF 19 38-1 at 11.) Defendant has provided templates used for all written communications. (ECF 20 43 at 9.) Defendant has proffered that all written communications come from the 21 templates and argues that to provide the actual written communications would be 22 duplicative and costly. (Id.) Plaintiff argues that the templates do not demonstrate 23 whether the Defendant failed to send ECOA-mandated notifications of adverse action. 24 (ECF 38-1 at 12.) He also claims that the templates sent do not match what was actually 25 sent to the accountholders. (Id.) 26 The Court has found that written communications are relevant to Plaintiff’s causes 27 of action. Defendant suggests that a Federal Rule of Civil Procedure 30(b)(6) witness or 28 interrogatories are less intrusive methods. While the Court agrees that there may be 1 duplicative discovery, the Court finds that neither a Rule 30(b)(6) witness nor an 2 interrogatory will cover the actual communications sent to the account holders. 3 Plaintiff also seeks non-template communications from phone calls. (ECF 38-1 at 4 11.) He alleges that discriminatory comments and comments contradictory to the written 5 communications were made to him. (Id. at 12.) He argues that proof of similar statements 6 supports his allegations. (Id. at 12-13.) 7 The Court has found that these communications are relevant. Defendant concedes 8 that unlike the written communications, recordings of phone calls would include varied 9 content. (ECF 43 at 11.) However, Defendant argues that identifying these recordings 10 would entail production of thousands of hours of them. (Id.) He argues such would cause 11 undue burden such that expense of collecting and redacting these communications 12 significantly outweighs Plaintiff’s benefit. (Id. at 12.) Defendant notes that without the 13 six-month provision in the original complaint, it would have to review communications 14 to every Iranian-citizen accountholder, which Defendant estimates would involve 15 reviewing communications of 33,500 Iranian-citizen accountholders since 2016. (Id.) 16 The Court finds Plaintiff’s RFPs 6, 8, 9, and 41 are overly broad, and limits 17 Plaintiff’s RFPs to communications to all present or former Iranian citizen Bank of 18 America credit card or checking account holders who had an account restricted or closed 19 and who were present in the United States on the date(s) when the restriction or closure 20 was imposed. This is the class as defined in Plaintiff’s FAC. (See ECF 47 at 29-30.) 21 Defendant estimates there are 2700 closed Iranian accounts based on the proposed 22 class in Plaintiff’s original complaint,7 which was Iranian-citizen accountholders whose 23 accounts were closed for failure to submit residency documentation (ECF 43 at 13), 24

25 7 Again, Plaintiff’s original complaint defines class to include accountholders whose 26 accounts were closed within six months of Defendant sending a request for proof of 27 residency, and Plaintiff’s FAC defines class to include accountholders whose accounts were closed or restricted any time, due to inadequate proof of residency and who were 28 1 accountholders whose “account[s] closed within six months after [Defendant] sent a 2 request for documents establishing residency” (see ECF 1 at 2-3). (ECF 43 at 13.) 3 4 RFP Class Complaint 20% of Amended Class Complaint Complaint 5 Class Class 6 Total Class Size 33,500 2,700 540 Unknown (2,700 x .2) 7 Total Written 1,005,000 81,000 16,200 Unknown 8 Communications (30 x 33,500) (30 x 2,700) (30 x 540) (30) 9 Total Phone Calls 402,000 32,400 6,480 Unknown 10 (12) (12 x 33,500) (12 x 2,700) (12 x 540)

11 (ECF 43 at 15.) 12 Plaintiff has proposed that if this Court is persuaded by Defendant’s arguments 13 regarding the burden to produce the discovery sought, the Court order that Defendant 14 produce a sampling of 20% of the Iranian-citizen accountholders whose accounts were 15 closed for failure to submit residency documentation (ECF 38-1 at 16). Those 16 accountholders are represented by the 540 figure above. 17 Defendant notes that vendor costs to process, review, redact, and produce the 18 proposed sample—20% of the 2,700 closed accounts, or 540 closed accounts—are 19 significant. (ECF 43 at 15.) For the written communications from the proposed sample, 20 the cost is between $33,300 and $37,300. (Id. at 16; see also Decl. of Cheryl Cote in 21 Support of Defendant’s Opposition to Plaintiff’s Motion to Compel, Attachment #3 [ECF 22 43-3 at 7-8].) For the phone call communications from the proposed sample, the cost is 23 between $66,100 and $87,600. (Id. at 16; see also Cote Decl. ECF 43-3 at 7-8.) 24 The Court notes that Plaintiff’s proposal was made when the original complaint 25 was operative. With the new class definition in the FAC, it is unclear to this Court what 26 an accurate estimate of closed and restricted accounts would be. In fact, Defendant notes 27 that “[T]he cost [to produce written communications and phone calls] could potentially 28 1 double if the figures were adjusted to also include Iranian-citizen Accountholders whose 2 accounts were . . . restricted but not closed.” (ECF 43 at 16 n.6, 8.) Based on 3 Defendant’s estimate, then, the FAC class could be approximately 5,400. 4 Given the burden on the Defendant to produce this discovery, the Court finds a 5 10% random sample size to be sufficient and reasonable in light of the estimated class 6 size indicated by Defendant if the figures were adjusted to also include Iranian-citizen 7 Accountholders whose accounts were restricted but not closed. Thus, Defendant must 8 produce the requested discovery in RFPs 6, 8, 9, and 41 for 10% of the FAC class. See 9 Talavera v. Sun Maid Growers of Cal., 15-cv-00842-AWI-SAB, 2017 WL 495635, at *4 10 (E.D. Cal. Feb. 6, 2017) (ordering a 10% sample in a putative class of 5,309); see also 11 Tinnin v. Sutter Valley Med. Found., No. 1:20-cv-00482-NONE-EPG, 2021 WL 1315435 12 (E.D. Cal. Apr. 7, 2021) (ordering that the plaintiff produce the requested discovery for 13 20% of the class of 7,400); Aldapa v. Fowler Packing Co., 310 F.R.D. 583, 589 (E.D. 14 Cal. Oct. 29, 2015) (ordering production of discovery related to 25% of employees); 15 Brum v. MarketSource, Inc., No. No. 2:17-cv-241-JAM-EFB, 2018 WL 3861558, at *4-6 16 (E.D. Cal. Aug. 14, 2018) (ordering discovery for 10% of wage statements and 30% of 17 electronic time and payroll records for class of 7,400); Romo v. GMRI, Inc., No. EDCV- 18 12-0715-JLQ, 2013 WL 11310656, at *16-17 (ordering a 20% sample in a putative class 19 of 21,000). 20 II. RFP 4 – Customer Transaction Data 21 Plaintiff’s RFP 4 in pertinent part requests all transactions undertaken by account 22 holders in the last six months before the account was closed, including information 23 concerning the location of the transactions. (ECF 38-4 at 11-12.) 24 Plaintiff contends that the occurrence of the credit transaction by itself indicates 25 that the card user was not located in Iran. (ECF 38-1, at 17.) Plaintiff, however, notes that 26 technical restrictions on the use of credit cards from Iran would prevent any of these 27 transactions from occurring if the accountholder was in Iran. (Id. at 13.) Plaintiff argues 28 the discovery is relevant to show Defendant adhered to the practice of applying its proof 1 of residency requirements to Iranian citizens while they were not located in Iran. (Id. at 2 12.) It is also relevant to show Plaintiff’s claims are typical to the class members like 3 Plaintiff who were not in Iran when their accounts were closed. (Id. at 13.) 4 Defendant argues that the transactional data is not relevant. (ECF 43 at 17.) The 5 issue of whether the account holders used their accounts while in Iran is not contested. 6 (Id.) Transactions to and from Iran are prohibited by law and cannot occur. (Id.) 7 Defendant has not contended that any class member was conducting transactions in Iran. 8 (Id.) Defendant’s policy is to establish where the account holder is ordinarily a resident, 9 not where the account holder conducted transactions. (Id. at 18.) The proof of residency 10 documentation is to show that the account holder is ordinarily a resident of the United 11 States. (Id.) Defendant’s proof of residency requirements are applied to account holders 12 who are not residents in Iran. (Id.) Defendant also claims undue burden were this 13 discovery ordered. (See id. at 19 (“[I]t would cost Defendant between $30,530 and 14 $41,760 to produce transactional data for the closed accounts”).) 15 Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any non- 16 privileged matter that is relevant to any party’s claim or defense and proportional to the 17 needs of the case, considering the importance of the issues at stake in the action, the 18 amount in controversy, the parties’ relative access to relevant information, the parties’ 19 resources, the importance of the discovery in resolving the issues, and whether the burden 20 or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 21 26(b)(1). 22 The Court finds the requested discovery is not proportional to the needs of the 23 case. Plaintiff requests this discovery to show that the class members were not in Iran 24 when they conducted credit transactions. However, Plaintiff concedes that technical 25 restrictions on the use of credit cards from Iran would prevent any of these transactions 26 from occurring if the accountholder were located in Iran, thus the occurrence of the credit 27 transaction by itself indicates the card user was not located in Iran. Further, Defendant is 28 1 contending that class members were in Iran when Defendant sent the proof of 2 residency requirements. The cost of complying creates an undue burden on Defendant. 3 The Court finds there are less intrusive and costly ways of obtaining this discovery 4 ||such as an interrogatory, a Rule 30(b)(6) witness, or a stipulation. Rule 26(b)(2) requires 5 || the court, on motion or on its own, to limit the frequency or extent of discovery otherwise 6 || allowed by the rules if it determines that the discovery can be obtained from some other 7 source that is more convenient, less burdensome, or less expensive. 8 III. Conclusion 9 The discovery Plaintiff seeks in RFPs 6, 8, 9, and 41 is potentially relevant to 10 || Plaintiff’s claims. Given the burden on the Defendant to produce this discovery, the 11 || Court finds a 10% random sample size to be sufficient and reasonable in light of the 12 || estimated class size indicated by Defendant if the figures were adjusted to also include 13 || Iranian-citizen Accountholders whose accounts were restricted but not closed. Thus, 14 || Defendant must produce the requested discovery in RFPs 6, 8, 9, and 41 for 10% of the 15 ||FAC class. As regards Plaintiff’s RFP 4, the Court finds the requested discovery is not 16 || proportional to the needs of the case. 17 IT IS SO ORDERED. 18 Dated: March 20, 2023 7 2 p / / 19 on. Bernard G. Skomal 20 United States Magistrate Judge 21 22 23 24 25 26 27 28