Bank of America Corporation Ordered to Provide Discovery on Behalf of Non-Party Wholly-Owned Subsidiaries

In re ATM Fee Antitrust Litig., 2005 WL 3299763 (N.D. Cal. Dec. 5, 2005)

In this class action, plaintiffs propounded requests for production of documents and a request for admissions to all named defendants, including Bank of America Corporation (“BAC”). Plaintiffs also served interrogatories and proposed FRCP Rule 30(b)(6) depositions substantially limited to document and electronic data storage and management issues.

Defendants objected, and the parties debated whether plaintiffs should subpoena non-party Bank of America, N.A. (“BANA”) as provided by FRCP Rule 45 or amend their complaint to add BANA as a party. BAC would not guarantee a response from BANA unless plaintiffs added BANA as a party. BAC also objected to providing discovery from any of its other subsidiaries on the grounds that this would “impose substantial and completely unnecessary burdens on BAC.”

In its initial FRCP Rule 26(a)(1) disclosures, BAC identified “current employees of Bank of America Corporation and affiliated entities who are likely to have non-privileged information relevant to disputed facts . . .” The list included five employees of BANA. BAC also listed seven categories of relevant documents, all located at BANA’s offices. With respect to its other subsidiary banks, BAC conceded that “certain of its affiliates may have possession, custody or control of potentially relevant documents.”

The court granted plaintiffs’ motion to compel BAC to respond to discovery requests, with respect to BAC and its wholly owned subsidiaries including but not limited to BANA. The court determined that, if BANA or any other wholly-owned subsidiary bank of BAC has possession and custody of responsive documents, then BAC has legal control of the documents through its control of the subsidiary bank and must produce any which are responsive to plaintiffs’ document requests. Similarly, the court concluded that BAC must respond to the interrogatories with information from its subsidiaries. “[F]ederal law requires that a parent respond to an interrogatory under FRCP Rule 33 with information from a subsidiary if it has access to that information and if the information is relevant and not privileged.”

The court also found that BAC had failed to support its claim of burden, stating that “[t]he litany of overly burdensome, oppressive, and irrelevant does not alone constitute a successful objection to a discovery request.”

The court ordered compliance within 20 days of entry of the court’s order.

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