Erhart v. Bofi Holding Inc.

Filing 178

ORDER Granting In Part and Denying in Part the Parties' Motions Regarding Filing Documents Under Seal. The Court Directs the Clerk of the Court to complete the various sealing requests that are underlined throughout this order (ECF Nos. #125 , #130 , #132 , #140 , #141 , #145 , #150 , #153 , #156 , #172 , #161 , #165 ). Signed by Judge Cynthia Bashant on 9/19/19. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHARLES MATTHEW ERHART,
Plaintiff,

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v.
BOFI FEDERAL BANK,

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Defendant.

Case No. 15-cv-02287-BAS-NLS
consolidated with
15-cv-02353-BAS-NLS
ORDER GRANTING IN PART
AND DENYING IN PART THE
PARTIES’ MOTIONS
REGARDING FILING
DOCUMENTS UNDER SEAL

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And Consolidated Case

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Presently before the Court are twelve motions concerning filing documents

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under seal.1 The parties filed the motions in connection with their cross-motions for

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summary judgment and a motion to exclude expert testimony. For the following

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reasons, the Court grants in part and denies in part the motions.

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(ECF Nos. 125, 130, 132, 140, 141, 145, 150, 153, 156, 161, 165, 172.)
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BACKGROUND 2

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Defendant BofI Federal Bank is a federally chartered savings and loan

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association. Defendant’s holding company, BofI Holding, Inc., is publicly traded

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under the Securities Exchange Act of 1934. 3 BofI hired Charles Matthew Erhart as

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a Staff Internal Auditor in its headquarters in San Diego, California.

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These consolidated actions revolve around competing narratives of Erhart’s

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tenure as an internal auditor for BofI. In his pleading, Erhart recounts how he

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repeatedly battled against pressure from senior management as he discovered

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conduct he believed to be wrongful. For example, Erhart claims he unearthed

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evidence that BofI failed to turn over information that was responsive to a subpoena

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from the Securities and Exchange Commission. Erhart also allegedly discovered that

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BofI’s Chief Executive Officer was “depositing third-party checks for structured

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settlement annuity payments into a personal account, including nearly $100,000 in

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checks made payable to third parties.” In addition, Erhart claims the Bank engaged

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in wrongdoing during an examination by BofI’s principal regulator, the Department

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of the Treasury’s Office of the Comptroller of the Currency (“OCC”).

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When BofI learned Erhart was potentially reporting these allegations to the

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OCC, Erhart claims BofI engaged in a pattern of retaliatory conduct against him,

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including making false statements about his medical leave and ultimately terminating

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him. Based on these allegations, Erhart brings seven claims against BofI, including

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The Court largely adopts this background from its order granting in part and denying in
part the parties’ motions for judgment on the pleadings. (See ECF No. 123; see also ECF No. 40.)
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BofI Holding’s common stock originally traded on The NASDAQ Global Select Market
under Section 12(b) of the Exchange Act. See Axos Financial, Inc., Registration of Securities
(Form 8-A) (Sept. 13, 2018). Since this lawsuit was filed, BofI Holding and BofI Federal Bank
have rebranded as Axos Financial, Inc. and Axos Bank. (Tolla Decl. ¶ 2, ECF No. 127-2.) The
holding company’s shares now trade on The New York Stock Exchange. Axos Financial, Inc.,
Registration of Securities (Form 8-A) (Sept. 13, 2018).
To be consistent with the record, the Court refers to these entities by their prior names. And
unless the distinction is relevant, the Court uses “BofI” and “the Bank” to refer to
either BofI Holding, Inc. or BofI Federal Bank.
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whistleblower retaliation in violation of the Sarbanes–Oxley Act and the Dodd–

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Frank Wall Street Reform and Consumer Protection Act.

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In contrast, BofI’s countersuit portrays Erhart as an entry-level internal auditor

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who conducted improper “rogue investigations.” BofI claims Erhart “abused his

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power” as an auditor by “initiating and conducting his own unplanned and

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unapproved investigations into matters that were outside the scope of the” Bank’s

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internal audit plans. In doing so, Erhart allegedly “misrepresented to other BofI

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employees that he was conducting authorized investigations as part of his job.” The

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Bank also contends that Erhart accessed confidential information for personal gain,

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disseminated confidential information to “a website that allows comments on the

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stocks of publicly traded companies,” and abandoned his job. In light of these

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allegations, BofI brings its own catalog of eight claims against Erhart, including

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breach of contract, breach of the duty of loyalty, and violation of the Computer Fraud

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and Abuse Act.

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BofI is moving for partial summary judgment on several of Erhart’s claims.

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(ECF No. 127.) Erhart is also moving for summary judgment on almost all of BofI’s

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claims. (ECF No. 137.) Erhart is further seeking to exclude the testimony of two

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expert witnesses at trial. (ECF No. 128.) In connection with these three motions, the

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parties have filed twelve motions related to sealing documents. Due to the volume

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of the parties’ requests, the Court will refer to each motion by its Electronic Case

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Filing Number (“ECF No.”).

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LEGAL STANDARD

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“[T]he courts of this country recognize a general right to inspect and copy

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public records and documents, including judicial records and documents.” Nixon v.

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Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record

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is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the

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starting point.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
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2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir.

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2003)). “The presumption of access is ‘based on the need for federal courts, although

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independent—indeed, particularly because they are independent—to have a measure

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of accountability and for the public to have confidence in the administration of

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justice.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir.

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2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)).

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A party seeking to seal a judicial record bears the burden of overcoming the

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strong presumption of access. Foltz, 331 F.3d at 1135. The showing required to

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meet this burden depends upon whether the documents to be sealed relate to a motion

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that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety,

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809 F.3d at 1102. When the underlying motion is more than tangentially related to

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the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the

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underlying motion does not surpass the tangential relevance threshold, the “good

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cause” standard applies. Id.

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“In general, ‘compelling reasons’ sufficient to outweigh the public’s interest

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in disclosure and justify sealing court records exists when such ‘court files might

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have become a vehicle for improper purposes,’ such as the use of records to gratify

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private spite, promote public scandal, circulate libelous statements, or release trade

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secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However,

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“[t]he mere fact that the production of records may lead to a litigant’s embarrassment,

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incrimination, or exposure to further litigation will not, without more, compel the

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court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal

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documents is “one best left to the sound discretion of the trial court” upon

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consideration of “the relevant facts and circumstances of the particular case.” Nixon,

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435 U.S. at 599.

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//

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//

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//
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STANDING ORDER FOR CIVIL CASES
Consistent with the presumptive right of public access to court records, this
Court’s Standing Order for Civil Cases provides:
The Court may seal documents to protect sensitive information, however,
the documents to be filed under seal will be limited by the Court to only
those documents, or portions thereof, necessary to protect such sensitive
information.
Parties seeking a sealing order must provide the Court with: (1) a specific
description of particular documents or categories of documents they need
to protect; and (2) declarations showing a compelling reason or good
cause to protect those documents from disclosure. The standard for filing
documents under seal will be strictly applied.
(Standing Order ¶ 5.)
ANALYSIS

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The parties’ summary judgment motions and Erhart’s request to exclude

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experts at trial are all more than tangentially related to the merits of this consolidated

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dispute. Hence, these motions and the documents attached to them are subject to the

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compelling reasons standard. Before turning to the parties’ specific sealing requests,

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the Court addresses a frequent basis asserted in the parties’ motions for sealing

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information: the bank examination privilege.

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“Stated broadly, the bank examination privilege is a qualified privilege that

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protects communications between banks and their examiners in order to preserve

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absolute candor essential to the effective supervision of banks.” Wultz v. Bank of

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China Ltd., 61 F. Supp. 3d 272, 281 (S.D.N.Y. 2013) (quoting Linde v. Arab Bank,

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PLC, No. 04 Civ. 2799, 2009 WL 3055282, at *1 (E.D.N.Y. Sept. 21, 2009)). The

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Ninth Circuit has “not addressed” this privilege, which is also known as “the bank

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examiner’s privilege.” Campidoglio LLC v. Wells Fargo & Co., 870 F.3d 963, 977

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n.5 (9th Cir. 2017). But in recognizing the privilege, other courts have explained that

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it “arises out of the practical need for openness and honesty between bank examiners

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and the banks they regulate, and is intended to protect the integrity of the regulatory
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process by privileging such communications.”

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(quoting Merchants Bank v. Vescio, 205 B.R. 37, 42 (D. Vt. 1997)); see also In re

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Subpoena Served upon Comptroller of Currency, 967 F.2d 630, 633–34 (D.C. Cir.

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1992). Indeed, for successful bank supervision, the bank’s “management must be

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open and forthcoming in response to the inquiries of bank examiners, and the

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examiners must in turn be frank in expressing their concerns about the bank.” In re

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Subpoena, 967 F.2d at 634. “These conditions simply could not be met as well if

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communications between the bank and its regulators were not privileged.” Id. The

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bank examination privilege belongs solely to banking regulatory entities. See, e.g.,

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Wultz, 61 F. Supp. 3d at 281–82

In re Bankers Tr. Co., 61 F.3d 465, 472 (6th Cir. 1995).

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The magistrate judge previously recognized that there are documents relevant

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to this litigation containing information covered by the bank examination privilege.

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(ECF No. 100.) Hence, the magistrate judge directed the parties to seek permission

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from the OCC—the holder of the bank examination privilege—to use documents that

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disclose “agency opinions and recommendations and banks’ responses.” (Id.) The

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OCC subsequently asserted the bank examination privilege over certain records, but

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“determined that the particular circumstances of the [case] warrant making the

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Records available to the parties in this action, provided that appropriate protection of

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their confidentiality can be secured.” (See ECF No. 114.) Thus, the magistrate judge

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entered a protective order that required, among other things, that the parties file under

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seal those records for which the OCC provided permission to be used in this case.

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(Id.)

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In light of the foregoing, the Court finds it appropriate to seal information

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subject to the bank examination privilege; namely, the OCC’s examination requests

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to BofI and the Bank’s responses to these requests.

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appropriate to seal briefing, deposition testimony, and other information that reveals

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the content of the OCC’s requests and the Bank’s responses. However, the Court

The Court also finds it

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will require that the parties’ redactions be narrowly tailored to this content, making

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the filings otherwise publicly available.

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Beyond material involving bank examination, the parties also seek to redact

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bank and loan account information and certain non-public information of third

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parties, including bank customers and employees. The Court generally concludes it

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is appropriate to grant narrowly tailored requests to seal this information—

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particularly where the content of this information is unnecessary to understand the

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Court’s orders and the parties’ dispute. However, where this is not the case—or

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where it is unclear why the information is confidential or sensitive—the Court finds

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the parties have not satisfied the compelling reasons standard. The Court will thus

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consider each sealing motion in turn.

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I.

ECF No. 125

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The Bank moves to seal portions of its motion for summary judgment and

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approximately ten attachments. (ECF No. 125.) Erhart does not oppose. The Court

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rules on the proposed redactions in Table 125 attached to this order. Accordingly,

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the Court grants in part and denies in part ECF No. 125. The Clerk shall accept and

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file under seal the following documents:

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• BofI’s Mot. (ECF No. 126-1);

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• Tolla Decl. (ECF No. 126-2);

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• Ex. C: Erhart Dep. (ECF No. 126-5);

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• Ex. E: Erhart Dep. (ECF No. 126-7);

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• Ex. F: Ball Dep. (ECF No. 126-8);

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• Ex. G: Ball Dep. (ECF No. 126-9);

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• Ex. I: Grenet Dep. (ECF No. 126-10);

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• Ex. J: Garrabrants Dep. (ECF No. 126-11);

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• Ex. M: Tolla Rule 30(b)(6) Dep. (ECF No. 126-13);

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• Ex. T: SEC Letter to BofI & Subpoena (ECF No. 126-16);
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• Ex. U: BofI Letter to SEC (ECF No. 126-17);

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• Ex. X: Erhart E-mail to Ball RE: Subpoena (ECF No. 126-18);

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• Ex. AA: Internal Audit Memo RE: Employee Account Review (ECF No.

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126-19);

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• Ex. UU: BofI’s Responses to OCC’s Requests (ECF No. 126-20);

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• Ex. VV: Erhart E-mails to Shkabara RE: SEC Subpoena (ECF No. 126-21);

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and
• Ex. XX: Tolla E-mail RE: OCC’s Requests (ECF No. 126-22).
The Clerk shall further:

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• Reject the lodged, unredacted McWilliams Decl. (ECF No. 126-3) and

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replace the redacted version on the docket (ECF No. 127-5) with the

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unredacted copy (ECF No. 126-3);

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• Reject the lodged, unredacted Towill Decl. (ECF No. 126-4) and replace

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the redacted version on the docket (ECF No. 127-6) with the unredacted

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copy (ECF No. 126-4);

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• Reject the lodged, unredacted Ex. D: Erhart Dep. (ECF No. 126-6) and

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replace the redacted version on the docket (ECF No. 127-10) with the

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unredacted copy (ECF No. 126-6);

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• Reject the lodged, unredacted Ex. K: Garrabrants Dep. Errata Sheet (ECF

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No. 126-12) and replace the redacted version on the docket (ECF No. 127-

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17) with the unredacted copy (ECF No. 126-12);

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• Reject the lodged, unredacted Ex. Q: Transfer and Assignment Agreement

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(ECF No. 126-14) and replace the redacted version on the docket (ECF No.

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127-23) with the unredacted copy (ECF No. 126-14); and

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• Reject the lodged, unredacted Ex. R: Transfer and Assignment Agreement

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(ECF No. 126-15) and replace the redacted version on the docket (ECF No.

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127-24) with the unredacted copy (ECF No. 126-15).

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Finally, for those documents that the Court has accepted under seal but denied some
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of the Bank’s proposed redactions, the Court ORDERS the Bank to publicly file

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revised versions of these documents with only those redactions that the Court has

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approved. The Bank shall file these items on CM/ECF as a “Notice Regarding

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Exhibit Attachment” and link the items to the Bank’s motion for summary judgment.

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II.

ECF No. 130
Erhart moves to seal certain documents filed in connection with his motion to

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exclude expert testimony.

(ECF No. 130.)

Erhart explains that some of the

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documents lodged under seal were designated confidential, but Erhart does not

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believe all of the lodged material should be sealed. (Id.) BofI responds to the motion

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and submits proposed redacted versions of several documents. (ECF No. 144.) The

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Court rules on the parties’ proposed redactions in Table 130 attached to this order.

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Accordingly, the Court grants in part and denies in part ECF No. 130. The Clerk

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shall accept and file under seal the following documents:

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• Ex. 3: van Drunen Rule 26 Report (ECF No. 131-3);

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• Ex. 6: Micheletti Dep. (ECF No. 131-4); and

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• Ex. 297: Customer Deposit History and Related E-mails (ECF No. 131-5).

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The Clerk shall further:

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• Reject the lodged, unredacted Ex. 1: van Drunen Am. Rule 26 Report (ECF

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No. 131-1) and replace the redacted version on the docket (ECF No. 128-

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4) with the unredacted copy (ECF No. 131-1); and

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• Reject the lodged, unredacted Ex. 2: Policy Statement (ECF No. 131-2) and

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file it as an additional attachment to Erhart’s motion to exclude testimony

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(ECF No. 128).

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Finally, for Ex. 3: van Drunen Rule 26 Report (ECF No. 131-3), Erhart shall publicly

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file a revised version of this document with only those redactions that the Court has

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approved. Erhart shall file this item as a “Notice Regarding Exhibit Attachment” and

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link the item to his motion to exclude testimony.
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III.

ECF No. 132

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Erhart moves to seal part of the Deposition of Andrew J. Micheletti, which

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Erhart references in his motion for summary judgment. (ECF No. 132.) Erhart relies

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on the same deposition transcript in his motion to exclude expert testimony. BofI

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responds to the motion to support the request. (ECF No. 143.) Upon review, the

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proposed redactions for this deposition are the same ones considered by the Court in

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connection with ECF No. 130. Thus, the Court grants ECF No. 132. The Clerk shall

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accept and file under seal the unredacted copy of the Micheletti Deposition (ECF No.

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133-1). The redacted version that was publicly filed by BofI (ECF No. 143-2) will

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serve as the public exhibit for Erhart’s motion to exclude.

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IV.

ECF Nos. 140, 141, 145

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BofI moves to amend its prior motion to seal, which was considered above

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(ECF No. 130), explaining that it inadvertently filed an unredacted version of Ex. T

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in support of BofI’s motion for summary judgment—instead of lodging it with the

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Court. (ECF No. 140.) Hence, BofI moves to seal Ex. T in its entirety. (Id.)

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Relatedly, BofI files a supplemental motion to seal Ex. T, “which is a relevant

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excerpt of a confidential letter from the SEC to BofI containing a confidential SEC

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subpoena” that “contains highly sensitive customer names.”

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However, in making this request, BofI again inadvertently attached an unredacted

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copy of Ex. T to its motion to seal. Accordingly, BofI also moves to strike the

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unredacted version of Ex. T that it filed for the second time in its supplemental motion

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to seal Ex. T. (ECF No. 145.)

(ECF No. 141.)

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There are not compelling reasons to seal the customer name at issue. The name

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is already disclosed in various other filings, including other documents at issue in this

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order, and it is public information that the SEC investigated and sought enforcement

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action against this customer. Hence, the Court denies BofI’s motion to amend its

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prior motion to seal (ECF No. 140). The Court denies as moot BofI’s supplemental
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motion to seal Ex. T (ECF No. 141). Finally, the Court similarly denies as moot

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BofI’s motion to strike (ECF No. 145). Accordingly, the Clerk shall reject the

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document lodged under seal in ECF No. 142. No further action is needed for these

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motions.

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V.

ECF No. 150

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BofI moves to seal documents used to support the Bank’s opposition to

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Erhart’s motion to exclude expert testimony. (ECF No. 150.) First, the Bank seeks

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to seal limited excerpts of Ex. G (ECF No. 15-8), which is a summary of personnel

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costs incurred by the Bank. The proposed redactions mask salary, benefits, and bonus

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information of specific Bank employees and the name of a third-party bank customer.

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The Court finds sealing this information is appropriate. The Court will seal the non-

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public information about a bank customer for the same reasons expressed for prior

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motions to seal. And the Court finds knowledge of the specific salary and bonus

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rates of select employees is unnecessary to understand the Court’s orders and the

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parties’ dispute.
Second, the Bank seeks to seal excerpts of Guido van Drunen’s Amended Rule

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26 Report.

The Court has already considered these proposed redactions and

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incorporates its analysis from other motions to seal. Thus, the Court denies the

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request to seal this document. Accordingly, the Court grants in part and denies in

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part ECF No. 150. The Clerk shall accept and file under seal Ex. G: Summary of

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Personnel Costs (ECF No. 151-2), but publicly file Ex. H: van Drunen Am. Rule 26

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Report (ECF No. 151-2) in place of the redacted version attached to BofI’s opposition

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(ECF No. 152-9).

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VI.

ECF No. 153

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BofI moves to seal parts of eight documents used to support its opposition to

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Erhart’s motion for summary judgment. (ECF No. 153.) Erhart does not oppose.
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The Court rules on the proposed redactions in Table 153 attached to this order.

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Hence, the Court grants in part and denies in part ECF No. 153. The Clerk shall

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accept and file under seal the following documents:

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• Ex. K: Micheletti Dep. (ECF No. 154-3);

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• Ex. R: Lopez E-mail RE: FMLA Leave (ECF No. 154-4);

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• Ex. V: Lopez E-mail RE: FMLA Leave (ECF No. 154-5);

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• Ex. Z: Summary of Personnel Costs (ECF No. 154-6);

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• Ex. AA: Gillam E-mail RE: SEC Subpoena (ECF No. 154-7); and

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• Ex. BB: Gillam E–mail RE: NYT Article (ECF No. 154-8).

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The Clerk shall further:

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• Reject the lodged, unredacted Ex. B: Erhart Dep. (ECF No. 154-1) and

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replace the redacted version on the docket (ECF No. 155-3) with the

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unredacted copy (ECF No. 154-1); and

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• Reject the lodged, unredacted Ex. E: Ball Dep. (ECF No. 154-2) and

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replace the redacted version on the docket (ECF No. 155-6) with the

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unredacted copy (ECF No. 154-2).

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Finally, for those documents that the Court has accepted under seal but denied

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some of the Bank’s proposed redactions, the Court ORDERS the Bank to publicly

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file revised versions of these documents with only those redactions that the Court has

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approved. The Bank shall file these items on CM/ECF as a “Notice Regarding

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Exhibit Attachment” and link the items to the Bank’s opposition to Erhart’s motion

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for summary judgment.

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VII. ECF Nos. 156, 172

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Erhart moves to file portions of his opposition to BofI’s summary judgment

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motion and approximately twenty attachments under seal. (ECF No. 156.) BofI

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produced many of these documents and marked them as confidential; therefore,

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Erhart invites the Bank to respond to justify keeping the documents under seal. The
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Bank does so for some of the documents. (ECF No. 174.) The Court rules on the

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proposed redactions in Table 156 attached to this order.

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Beyond those determinations, the Court denies the request to seal any

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documents that were protectively lodged under seal but that BofI did not also seek to

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seal. The Clerk is directed to reject these items, which are:

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• Ex. 83: Internal Audit Memo (ECF No. 157-10);

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• Ex. 90: Memo RE: Employee Account Review (ECF No. 157-11);

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• Ex. 93: Lopez E-mail RE: Strategic Plan Approval (ECF No. 157-12);

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• Ex. 98: Williams E-mail RE: Deposit Concentration Risk (ECF No. 157-

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13);

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• Ex. 160: Due Diligence Policy Excerpt (ECF No. 157-14);

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• Ex. 228: Lopez E-mail RE: Board Meeting Minutes (ECF No. 157-15);

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• Ex. 262: Draft Lottery Audit (ECF No. 157-17);

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• Ex. 268: Draft Business Plan Audit (ECF No. 157-18);

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• Ex. 280: BSA Policy (ECF No. 157-19);

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• Ex. 282: Due Diligence Policy Excerpt (ECF No. 157-20);

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• Ex. 295: Erhart E-mail RE: Strategic Plan (ECF No. 157-21); and

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• Ex. 296: “Work Paper 6” RE: Business Plan (ECF No. 157-22).

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The Court ORDERS Erhart to publicly file all of these documents on CM/ECF as a

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“Notice Regarding Exhibit Attachment” and link the items to his opposition to BofI’s

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motion for summary judgment.

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The Clerk shall accept and file under seal the following documents:

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• Erhart’s Opp’n (ECF No. 157-1);

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• Ex. E: Erhart Dep. (ECF No. 157-3);

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• Ex. F: Ball Dep. (ECF No. 157-4);

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• Ex. M: Brickey Dep. (ECF No. 157-5);

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• Ex. N: Sisk Dep. (ECF No. 157-6);

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• Ex. O: List of Electronic Format Documents (ECF No. 157-7);
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• Ex. 47: Whistleblower Discussion Notes (ECF No. 157-9); and

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• Ex. 229: Erhart E-mail RE: Strategic Plan (ECF No. 157-15).

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The Clerk shall further:

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• Reject the lodged, unredacted Ex. C: Erhart Dep. (ECF No. 157-2) and

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replace the redacted version on the docket (ECF No. 158-6) with the

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unredacted copy (ECF No. 157-2).

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Finally, for the documents that the Court approved only some of the parties’

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proposed redactions, the Court ORDERS Erhart to publicly file revised versions of

9

these documents with those redactions that the Court has approved. Erhart shall file

10

these items on CM/ECF as a “Notice Regarding Exhibit Attachment” and link the

11

items to his opposition to the Bank’s motion for summary judgment.

12

The Bank also seeks to seal part of its response to Erhart’s motion to seal.

13

(ECF No. 172.) This part of the Bank’s response argues that the identity of two

14

witnesses and their testimony may be subject to sealing because a protective order

15

guarded this information in a related securities case. Having reviewed the material

16

at issue, including the protective order, the Court denies the request to seal. Although

17

there may be—or have been—good cause to protect the identities of these former

18

employees in the related case, the Court discerns no compelling reasons to seal their

19

identities or factual testimony in this case. Hence, beyond denying BofI’s request to

20

seal this information in Table 156, the Court also denies BofI’s motion to seal its

21

argument on this issue (ECF No. 172). The Clerk shall reject the lodged version of

22

BofI’s response to Erhart’s motion (ECF No. 173) and file this unredacted copy (ECF

23

No. 173) in place of the Bank’s redacted version (ECF No. 174).

24
25

VIII. ECF Nos. 161 & 165

26

The Bank moves to seal portions of its reply in support of its motion for

27

summary judgment and several attached exhibits. (ECF No. 161.) Relatedly, the

28

Bank also moves to seal portions of the Joint Statement of Undisputed Facts filed the
– 14 –

15cv2287

1

same day. (ECF No. 164.) The Court rules on the proposed redactions in Table 161

2

& 165 attached to this order. Accordingly, the Court grants in part and denies in part

3

these two motions to seal.

4

The Clerk shall accept and file under seal the following documents:

5

• Reply (ECF No. 163-1);

6

• Ex. A: Erhart Dep. (ECF No. 162-1);

7

• Ex. C: Erhart Dep. (ECF No. 162-2); and

8

• JSUF (ECF No. 166-1).

9

The Clerk shall further:

10

• Reject the lodged, unredacted Ex. D: Garrabrants Dep. (ECF No. 162-3)

11

and replace the redacted version on the docket (ECF No. 164-5) with the

12

unredacted copy (ECF No. 162-3).

13

Finally, for those documents that the Court has accepted under seal but denied some

14

of the Bank’s proposed redactions, the Court ORDERS the Bank to publicly file

15

revised versions of these documents with only those redactions that the Court has

16

approved. The Bank shall file these items on CM/ECF as a “Notice Regarding

17

Exhibit Attachment” and link the items to the Bank’s reply in support of its motion

18

for summary judgment.

19

CONCLUSION

20
21

In light of the foregoing, the Court:

22

1.

23

(ECF No. 125);

24

2.

25

(ECF No. 130);

26

3.

GRANTS Erhart’s motion to seal (ECF No. 132);

27

4.

DENIES BofI’s motion to amend its prior motion to seal (ECF No.

28

GRANTS IN PART and DENIES IN PART the Bank’s motion to seal

GRANTS IN PART and DENIES IN PART Erhart’s motion to seal

140); DENIES AS MOOT BofI’s supplemental motion to seal (ECF No. 141); and
– 15 –

15cv2287

1

DENIES AS MOOT BofI’s motion to strike (ECF No. 145);

2

5.

3

(ECF No. 150);

4

5.

5

(ECF No. 153);

6

6.

7

GRANTS IN PART and DENIES IN PART the Bank’s motion to seal

GRANTS IN PART and DENIES IN PART BofI’s motion to seal

GRANTS IN PART and DENIES IN PART Erhart’s motion to seal

(ECF No. 156);

8

7.

DENIES BofI’s motion to seal (ECF No. 172);

9

7.

GRANTS IN PART and DENIES IN PART BofI’s remaining two

10
11
12
13

motions to seal (ECF Nos. 161 & 165); and
8.

Directs the Clerk of the Court to complete the various sealing

requests that are underlined throughout this order above.
IT IS SO ORDERED.

14
15

DATED: September 19, 2019

16
17
18
19
20
21
22
23
24
25
26
27
28
– 16 –

15cv2287

TABLE 125
Item
Motion
• 12:20–21, 24
• 13:2

ECF No. Description
127-1
Bank/loan account
information

Determination Basis/Explanation
Granted
Sensitive financial information

Motion
• 15:6–18, 20
• 15:23–16:13, 15–16

127-1

Argument involving
bank examination

Motion
• 17:11–18:4
• 18:6–8
• 18:11–13

127-1

Argument involving
bank examination

Motion
• 19:17–22
• 20:9–12 & n.12

127-1

Argument involving
bank examination

Granted in part The Court seals most of this information in
light of the bank examination privilege, but
denies the request to seal the fact that
Erhart was not responsible for preparing
BofI’s response to the OCC’s relevant
inquiry (Mot. 15:23).
Granted in part The Court seals most of this information in
light of the bank examination privilege, but
denies the request to seal the fact that
Erhart was not responsible for preparing
BofI’s response to the OCC’s relevant
inquiry (Mot. 18:3).
Granted
Bank examination privilege

Motion
• 20:14–22 & n.13

127-1

Argument involving
bank examination

Motion
• 23:5–12

127-1

Argument involving
bank examination

Granted in part The Court seals most of this information in
light of the bank examination privilege, but
denies the request to seal the sentence
concerning Erhart’s belief that BofI was
defrauding its regulator (Mot. 20:17–21).
Granted
Bank examination privilege

Table 125
-115cv2287

Item
Motion
• 27:20
• 28:2, 4–5, 7–8
• 31:21–22
• 32:16–17

ECF No. Description
Determination Basis/Explanation
127-1
Identities of third
Denied
The identities of the two third parties who
parties and trust
sold their structured settlement payments to
involved in
Seneca One is public information. (See
structured settlement
BofI’s Request for Judicial Notice, Exs. 1–
transactions
2, ECF Nos. 127-63 to 64.)

Granted

Further, there are not compelling reasons to
seal the fact that Seneca One then sold
these payments streams to the Bank’s CEO.
BofI also has not demonstrated compelling
reasons to seal the name of the family trust
involved in the transactions. Indeed, the
CEO testified that he and the trust are one
and the same.
Bank examination privilege

Motion
• 43:16–17

127-1

Argument involving
bank examination

Tolla Decl.
• ¶¶ 4–11

127-2

Statements regarding Granted
bank examination

Bank examination privilege

McWilliams Decl.
• ¶¶ 4, 8–9

127-5

The Court incorporates its explanation from
above.

Towill Decl.
• ¶¶ 19–20, p. 13

127-6

Identities of third
Denied
parties and trust
involved in
structured settlement
transactions
Identities of third
Denied
parties and trust
involved in
structured settlement
transactions

The Court incorporates its explanation from
above.

Table 125
-215cv2287

Item
Ex. C: Erhart Dep.
• 614:4, 13, 15, 23
• 619:14
• 627:5, 7, 9, 19
• 632:6
• 635:16–17, 20, 22
• 647:23–24

ECF No. Description
Determination Basis/Explanation
127-9
Identities of third
Denied
The Court incorporates its explanation from
parties and trust
above.
involved in
structured settlement
transactions

Ex. C: Erhart Dep.
• 723:16
• 729:17

127-9

Bank/loan account
information

Ex. D: Erhart Dep.
• 766:20–21

127-10

Testimony regarding Denied
coworker’s concern

This information is not adequately covered
by the bank examination privilege.

Ex. E: Erhart Dep.
• 1144:9–14, 17–18
• 1145:8–12, 23–24
• 1146:4–5, 14, 21–22
• 1149:22–1150:7, 10–
11, 25
• 1151:1–3, 21–25
• 1158:8–9, 16–19, 22–
23

127-11

Testimony regarding Granted
bank examination

The Court seals this information in light of
the bank examination privilege. However,
the Court also highlights that the Bank’s
proposed redactions for certain pages are
inconsistent with those later proposed for
the same document. (Compare ECF No.
127-11, with ECF No. 164-4.)

Ex. E: Erhart Dep.
• 1246:14–1247:6
• 1247:12–14
• 1250:4–7, 14–16, 22–
25

127-11

Testimony regarding Granted in part The Court seals most of this information in
bank examination
light of the bank examination privilege, but
denies the request to seal Erhart’s
testimony that he believed the bank would
be misrepresenting itself to shareholders

Granted

Sensitive financial information

Table 125
-315cv2287

Item
• 1251:1–2

ECF No. Description

Ex. F: Ball Dep.
• 75:10–15
• 86:4–7
• 146:12–14

127-12

Testimony regarding Granted
bank examination

Bank Examination Privilege

Ex. F: Ball Dep.
• 146:24–25

127-12

This information is not adequately covered
by the bank examination privilege.

Ex. G: Ball Dep.
• 299:15–18

127-13

Testimony
Denied
explaining why
BofI’s CEO raised
his voice
Testimony regarding Granted
bank examination

Ex. I: Grenet Dep.
• 63:21–22

127-15

Identity of thirdparty bank customer

Ex. J: Garrabrants Dep.
• 264:2–3, 8, 13
• 268:6–9

127-16

Testimony
Denied
concerning trust
involved in
structured settlement
transactions
Testimony regarding Granted
bank examination

The redactions are narrowly tailored to
information about a third-party bank
customer, and this information is
unnecessary to understand the Court’s
rulings and the parties’ dispute.
The Court incorporates its explanation from
above.

Ex. J: Garrabrants Dep.
127-16
• 146:6–7, 11–12, 14–25
Ex. J: Garrabrants Dep.
• 169:9

127-16

Name of trust

Determination Basis/Explanation
(Erhart Dep. 1247:1–4 (starting at “the
bank”)).

Granted

Denied

Bank Examination Privilege

Bank examination privilege
The Court incorporates its explanation from
above.

Table 125
-415cv2287

Item
Ex. K: Garrabrants Dep.
Errata Sheet
Ex. M: Tolla Rule 30(b)(6)
Dep.
• 24:21–25:5
• 119:16–24
• 120:2–121:25

ECF No. Description
127-17
Name of trust

Ex. Q: Transfer and
Assignment Agreement

127-23

Ex. R: Transfer and
Assignment Agreement

127-24

127-19

Ex. T: SEC Letter to BofI & 127-26
Subpoena
Ex. U: BofI Letter to SEC
127-27
Ex. X: Erhart E-mail to Ball 127-30
RE: Subpoena
Ex. AA: Internal Audit
127-33
Memo RE: Employee
Account Review

Determination Basis/Explanation
Denied
The Court incorporates its explanation from
above.
Testimony involving Granted
Bank examination privilege
bank examination

Identity of third
party involved in
structured settlement
transaction
Identity of third
party involved in
structured settlement
transaction
Bank/loan account
information
Bank/loan account
information
Bank/loan account
information
Bank/loan account
information and
identities of third
parties and trust
involved in
structured settlement
transactions

Denied

The Court incorporates its explanation from
above.

Denied

The Court incorporates its explanation from
above.

Granted

Sensitive financial information

Granted

Sensitive financial information

Granted

Sensitive financial information

Granted in part The Court seals the bank account number
and related information. The Court,
however, denies the request to seal the
other information about the third parties
involved in structured settlement
transactions based on the Court’s
explanation from above.

Table 125
-515cv2287

Item
Ex. UU: BofI’s Responses
to the OCC’s Requests
Ex. VV: Erhart E-mails to
Shkabara RE: SEC
Subpoena
Ex. XX: Tolla E-mail RE:
the OCC’s Requests

ECF No. Description
127-53
BofI’s responses to
the OCC’s requests
127-54
Bank/loan account
information

Determination Basis/Explanation
Granted
Bank examination privilege
Granted

Sensitive financial information

127-56

Granted

Bank Examination Privilege

OCC’s requests to
BofI

Table 125
-615cv2287

TABLE 130
Item
Ex. 1: van Drunen Am.
Rule 26 Report
• 11
• 20 & n.119

ECF No. Description
128-4
Discussion of
Erhart’s allegations
concerning other
bank employees

Determination Basis/Explanation
Denied
Although Erhart’s allegations concerning
coworkers may be embarrassing, the Court
finds this reason is not a compelling
justification for sealing the information.
Cf. Kamakana v. City & Cty. of Honolulu,
447 F.3d 1172, 1179 (9th Cir. 2006).
Denied
The name of this customer is already
publicly disclosed in several other
documents, including multiple documents
submitted with the parties’ motions.
Further, that the SEC investigated this
customer is public knowledge.
Denied
The Court incorporates its explanation from
above.

Ex. 1: van Drunen Am.
Rule 26 Report
• 12 n.54
• 15 nn.74–75

128-4

Name of customer
targeted by SEC
subpoena

Ex. 3: van Drunen Rule 26
Report
• 10
• 11
• 19
• 20 & n.116

128-5,
144-2

Discussion of
Erhart’s allegations
concerning other
bank employees

Ex. 3: van Drunen Rule 26
Report
• 12 n.52
• 15 nn.71–72

128-5,
144-2

Name of customer
targeted by SEC
subpoena

Denied

The Court incorporates its explanation from
above.

Ex. 3: van Drunen Rule 26
Report
• 15 n.73

128-5,
144-2

Bank/loan account
information

Granted

Sensitive financial information

Table 130
-115cv2287

Item

ECF No. Description

Ex. 6: Micheletti Dep
• 73:18, 24
• 74:23–24
• 75:7
• 77:2–3, 23, 25
• 79:6, 12, 24–25
• 80:5
• 81:11, 14, 21

144-4

Ex. 297: Customer Deposit 144-5
History and Related E-mails

Determination Basis/Explanation

Identities of thirdGranted
party bank customers
and associated
representatives

The redactions are narrowly tailored to
information about third-party bank
customers, and this information is
unnecessary to understand the Court’s
rulings and the parties’ dispute.

Bank/loan account
information and
identity of thirdparty bank customer

The redactions are narrowly tailored to
information about a third-party bank
customer, and this information is
unnecessary to understand the Court’s
rulings and the parties’ dispute.

Granted

Table 130
-215cv2287

TABLE 153
Item
Ex. B: Erhart Dep.
• 639:4–5

ECF No. Description
155-3
Identities of third
parties involved in
structured settlement
transactions
155-6
Identity of employee
who Erhart
investigated
155-12
Identities of thirdparty bank customers
and associated
representatives
155-19
Home address of
employee

Determination Basis/Explanation
Denied
The Court incorporates its explanation from
above.

Ex. V: Lopez E-mail RE:
FMLA Leave
Ex. Z: Summary of
Personnel Costs

155-23

Same as Ex. R

155-27

Ex. AA: Gillam E-mail RE:
SEC Subpoena

155-28

Same as Ex. G
considered in ECF
No. 150
Identity of bank
client being
investigated by the
SEC and contact
information of third
party.

Ex. E: Ball Dep.
• 329:9, 16
Ex. K: Micheletti Dep.
• 73:18, 24
• 74:23–24
Ex. R: Lopez E-mail RE:
FMLA Leave

Denied

There are not compelling reasons to seal
this information.

Granted

The Court previously approved these
redactions above.

Granted

Granted

The redaction is narrowly tailored to
personal information, and this information
is unnecessary to understand the Court’s
rulings and the parties’ dispute.
Same as Ex. R

Granted

Same as Ex. G considered in ECF No. 150

Granted in part The Court incorporates its explanation from
above for the name of the client being
investigated. As to the other information,
the redaction is narrowly tailored to
personal information of a third party, and
this information is unnecessary to
understand the Court’s rulings and the
parties’ dispute.

Table 153
-115cv2287

Item
Ex. BB: Gillam E-mail RE:
NYT Article

ECF No. Description
155-29
Same contact
information of third
party as Ex. AA

Determination Basis/Explanation
Granted
Same as part of Ex. AA.

Table 153
-215cv2287

TABLE 156
Item
Opp’n
• 10:21–24
• 11:3–7
• 13:15–16, 25–26
Opp’n
• 15:26–28
• 16:3–5, 11

ECF No. Description
158,
Argument involving
174-2
bank examination

Determination Basis/Explanation
Granted
Bank examination privilege

158,
174-2

Information
regarding CEO’s
brother’s bank
account

Denied

Opp’n
• 19:14–15, 17–18, 19–
20

158,
174-2

Argument involving
bank examination

Opp’n
• 22:7
Opp’n
• 22:9–14, 19–23, 25
Opp’n
• 21:3–22:3 (varying
redactions)
• 22:5–23:3 (varying
redactions)

158,
174-2

Argument involving
former employee

158,
174-2

Argument involving
bank examination

Granted

Bank examination privilege

158,
174-2

Argument involving
former bank
employees’
observations

Denied

Neither party demonstrates compelling
reasons for sealing this information.

Unlike other potentially non-public bank
information, the Court finds this
information is necessary to understand the
nature of Erhart’s allegations concerning
CEO Garrabrants’s brother’s account and
BofI’s defense to these claims. Hence,
there are not compelling reasons to seal this
information in these circumstances.
Granted in part The Court seals part of this information in
light of the bank examination privilege
(Opp’n 19:14–15), but denies the request to
seal Erhart’s claim that the Bank was
defrauding its regulator (Opp’n 17:18).
Denied
There are not compelling reasons to seal
this information.

Table 156
-115cv2287

Item
Opp’n
• 35:14–17
Ex. C: Erhart Dep.
• 608:19–21, 23
• 613:15, 18–19
• 614:4, 13, 15, 23
• 619:14
• 625:19
• 626:15
Ex. C: Erhart Dep.
• 625:2
• 626:21
Ex. C: Erhart Dep.
• 654:22

ECF No. Description
158,
Argument involving
174-2
bank examination

Ex. C: Erhart Dep. Errata
Sheet
• 276:10–12
• 627:13
• 627:18–20
Ex. E: Erhart Dep.
• 1144:9–18
• 1145:6–12, 22–24
• 1150:1–12
• 1151:1–7, 17–25
• 1246:14–1247:14

158-6,
174-3

Determination Basis/Explanation
Granted
Bank examination privilege

158-6,
174-3

Identities of third
Denied
parties involved in
structured settlement
transactions

The Court incorporates its explanation from
above.

158-6,
174-3

Name of trust

The Court incorporates its explanation from
above.

158-6,
174-3

Information
Denied
regarding CEO’s
brother’s bank
account
Information
Denied
regarding third
parties involved in
structured settlement
transactions
Testimony regarding Granted in part
bank examination

158-6,
174-3

Denied

The Court incorporates its explanation from
above.

The Court incorporates its prior
explanations for the same material.

BofI relies on the same deposition pages in
its motion for summary judgment.
However, BofI proposes different
redactions for this copy of the deposition
than those redactions proposed above.
(Compare ECF No. 174-3, with ECF No.
158-6.) Thus, the Court seals the same
material as the Court did above, but denies

Table 156
-215cv2287

Item

ECF No. Description

Determination Basis/Explanation
the request to seal additional material on
these pages.

Ex. F: Ball Dep.
• 146:12–15, 24–25

158-6,
174-3

Ex. M: Brickey Dep.
• 6:14–15
• 127:1–128:25
• 133:1–25

174-6

Ex. M: Brickey Dep.
• 23:9–24:8
• 24:23–25
• 48:1–25
• 57:1–60:20
• 92:8–10
• 92:17–19
• 93:7–20
Ex. M: Brickey Dep.
• 24:9–22

147-6

Testimony regarding Granted
bank examination

147-6

Testimony regarding Granted in part The Court denies the request to seal the fact
third party’s medical
that the employee went out on stress leave
treatment
and later resigned, but grants the request to
seal information concerning medical
treatment, which is sensitive information of

Same as above

Granted in part The Court has already ruled on these
redactions. The Court incorporates its
explanation from above. The Court denies
Erhart’s request to seal more of page 146
than the Court previously considered.
(Compare ECF No. 158-9 at 146, with ECF
No. 127-12 at 146.)
Testimony regarding Denied
Neither party demonstrates compelling
former employee’s
reasons for sealing this information.
observations
Bank examination privilege

Table 156
-315cv2287

Item

ECF No. Description

Ex. N: Sisk Dep.
• 24:10–14

174-7

Ex. N: Sisk Dep.
• 41:3–42:25
• 49:1–25
• 55:1–16
• 59:1–5
• 76:3–25

174-7

Ex. O: List of Electronic
Format Documents
• 2

Determination Basis/Explanation
a third party that is also irrelevant to the
parties’ dispute.

Testimony
Granted in part
concerning bank
reserves
Testimony regarding Denied
former employee’s
observations

The Court grants the request to seal the
sentence on page 24, lines 10 to 12, in light
of the bank examination privilege.
Neither party demonstrates compelling
reasons for sealing this information.

174-8

Bank/loan account
information

Granted

Sensitive financial information

Ex. O: List of Electronic
Format Documents
• 2–3

174-8

Information
regarding bank
examination

Granted

Bank examination privilege

Ex. O: List of Electronic
Format Documents
• 5–8

174-8

Bank/loan account
Granted
information and
information
regarding third-party
bank customers

Ex. O: List of Electronic
Format Documents
• 11–18
• 20

174-8

Bank/loan account
information and
identities of third

The redactions are narrowly tailored to
sensitive financial information and the
identities of third-party bank customers, the
disclosure of which is unnecessary to
understand the Court’s rulings and the
parties’ dispute.
Granted in part The Court denies the request to seal the
identities of the third parties involved in
structured settlement transactions for the
reasons explained above. The Court

Table 156
-415cv2287

Item

ECF No. Description
parties and related
information

Determination Basis/Explanation
otherwise grants the request because the
redactions are narrowly tailored to sensitive
financial information and the identities of
third-party bank customers, the disclosure
of which is unnecessary to understand the
Court’s rulings and the parties’ dispute.
Granted
Bank examination privilege

Ex. O: List of Electronic
Format Documents
• 18

174-8

Bank examination
information

Ex. 47: Whistleblower
Discussion Notes
• BofI 5900

174-10

Bank examination
information

Granted

Bank examination privilege

Ex. 47: Whistleblower
Discussion Notes
• BofI 5902–05
• BofI 5912

174-10

Bank/loan account
and customer
information

Granted

Ex. 47: Whistleblower
Discussion Notes
• BofI 5905–06

174-10

Denied

Ex. 47: Whistleblower
Discussion Notes
• BofI 5911

174-10

Information
concerning CEO’s
and brother’s bank
accounts
Erhart’s allegations
concerning other
bank employees

The redactions are narrowly tailored to
sensitive financial information and the
identities of third-party bank customers, the
disclosure of which is unnecessary to
understand the Court’s rulings and the
parties’ dispute.
The Court incorporates its explanation from
above.

Denied

The Court incorporates its explanation from
above.

Ex. 229: Erhart E-mail to
Ball RE: Strategic Plan

174-11

Fiscal Strategic Plan

Granted

The Court seals the Fiscal Strategic Plan
because it contains sensitive business
information, and the disclosure of this

Table 156
-515cv2287

Item

ECF No. Description

Determination Basis/Explanation
information is unnecessary to understand
the parties’ dispute and the Court’s rulings.

Table 156
-615cv2287

TABLE 161 & 165
Item
Reply
• 5:18–6:1, 14
• 7:14–15, 17–18
• 8:16–18, 20–22
• 9:17

ECF No. Description
164
Argument involving
bank examination

Determination Basis/Explanation
Granted
Bank examination privilege

Reply
• 14 n.10

164

Argument involving
CEO’s bank account

Denied

Reply
• 18:8–17

164

Ex. A: Erhart Dep.
• 570:13
• 574:11
• 579:1–2, 6, 9, 21, 23

164-2

Argument involving Denied
observations of
former employees
Testimony involving Granted
third-party bank
customer

Ex. A: Erhart Dep.
• 621:4–6
• 624:7–8, 25
• 625:2, 19
• 632:6

164-2

Identity of third
Denied
party involved in
structured settlement
transaction and name
of trust

Ex. C: Erhart Dep.
• 1144:9–11
• 1145:8–10, 23–25
• 1146:3–4, 6–7, 10–11
• 1151:5–6, 11–12

164-4

Testimony involving Granted
bank examination

The Court incorporates its explanation from
above.
The Court incorporates its explanation from
above.
The redactions are narrowly tailored to
information regarding a third-party bank
customer, the disclosure of which is
unnecessary to understand the Court’s
rulings and the parties’ dispute.
The Court incorporates its explanation from
above.

The Court has already determined this
information may be sealed above.
However, the Court notes that the proposed
redactions do not match up with those
previously suggested by the Bank.

Table 161 & 165
-115cv2287

Item

ECF No. Description

Determination Basis/Explanation
(Compare ECF No. 164-4, with ECF No.
127-11.)

Ex. D: Garrabrants Dep.
• 177:19, 21, 25
• 178:15–16, 22, 24

164-5

Name of trust

Denied

The Court incorporates its explanation from
above.

Joint Statement of
Undisputed Facts (“JSUF”)
• ¶ 23
• ¶¶ 25–26

167

Bank/loan account
information

Granted

Sensitive financial information

JSUF
• ¶ 29
• ¶ 31

167

Bank examination
information

Granted

Bank examination privilege

JSUF
• ¶ 42
• ¶ 43

167

Information
Denied
concerning
structured settlement
transactions

The Court incorporates its explanation from
above.

Table 161 & 165
-215cv2287