UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EDUARDO GARCIA and JULIA GARCIA,

 Plaintiffs,

 vs. 

WELLS FARGO BANK, N.A., 

 Defendant.

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Case No. 1:20-cv-02402 

Honorable Rebecca R. Pallmeyer

ORAL ARGUMENT 

REQUESTED

DEFENDANT WELLS FARGO BANK, N.A.’S 

MEMORANDUM OF LAW IN SUPPORT OF ITS 

MOTION FOR A PROTECTIVE ORDER PRECLUDING 

DEPOSITIONS OF ITS FORMER CHIEF EXECUTIVE OFFICERS

Despite having deposition testimony from a senior Wells Fargo executive and other 

Wells Fargo employees who were directly involved with the issues in this case, Plaintiffs are 

now demanding the depositions of Wells Fargo’s former highest-ranking executives, former 

Chief Executive Officers John G. Stumpf and Timothy J. Sloan. Those former CEOs have no 

knowledge of Plaintiffs or their claims, were not involved in the key events at issue in this case, 

and have nothing substantive to offer. 

Under these circumstances, federal courts throughout the country explicitly protect highranking corporate executives from such abuses of the discovery process. Specifically, due to Mr. 

Stumpf and Mr. Sloan’s former “apex” level positions at Wells Fargo, Plaintiffs are not entitled 

to their depositions unless those former CEOs have unique, non-cumulative, first-hand 

knowledge of the relevant facts that cannot be obtained from lower-level employees or other 

sources. Because Plaintiffs cannot make such a showing with respect to Wells Fargo’s former 

CEOs, the purpose of those depositions can only be to annoy and harass. The Parties have 

conferred telephonically in compliance with Local Rule 37.2. Accordingly, good cause exists for 

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this Court to grant the requested protective order precluding Plaintiffs from deposing Mr. Stumpf 

and Mr. Sloan.

I. FACTUAL BACKGROUND

A. Mr. Stumpf and Mr. Sloan

Mr. Stumpf was named Wells Fargo’s President in 2005, was elected to its Board of 

Directors in June 2006, and was named CEO in June 2007. He became Chairman in January 

2010. Mr. Stumpf resigned from Wells Fargo on October 12, 2016. He was succeeded by Mr. 

Sloan, who served as Wells Fargo’s CEO until March 2019. Mr. Sloan had previously been 

Wells Fargo’s Chief Operating Officer and Chief Financial Officer. 

On April 21, 2022, a mere two weeks before the close of discovery,1 Plaintiffs served 

deposition notices for Mr. Stumpf and Mr. Sloan. That same day, Plaintiffs served their Fourth 

Supplemental Rule 26(a) Disclosures, which identified—for the very first time in this 2+ years

long litigation—Mr. Stumpf and Mr. Sloan as persons Plaintiffs believe are likely to have 

discoverable information. See Declaration of Stacie C. Knight (“Knight Decl.), Ex. A. Plaintiffs 

cited Mr. Sloan’s March 2019 testimony before the Committee on Financial Services for the U.S. 

House of Representatives, and Mr. Stumpf’s signature on two consent orders between Wells 

Fargo and the OCC. See id. To date, that is all Plaintiffs have provided in support of deposing 

Mr. Stumpf and Mr. Sloan. 

This case concerns the handling of Plaintiffs’ mortgage loan secured by a home in 

LaGrange Park, Illinois. After Plaintiff Eduardo Garcia’s business failed during the Great 

Recession, Plaintiffs stopped making their mortgage payments and asked Wells Fargo to lower 

their payments. Complaint ¶¶ 70-75. 

1 The Court has since extended the fact discovery period to May 31, 2022.

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In November 2008, Wells Fargo denied Plaintiffs’ request for a repayment agreement 

because they failed to make the repayment plan’s required payments. A year later, in 2009, 

Wells Fargo offered Plaintiffs a forbearance agreement, but Plaintiffs failed to make the 

requirement forbearance payments. Knight Decl., Ex. E. Finally, in 2010, Plaintiffs were still in 

the house, Wells Fargo declined to offer them a trial payment plan under the federal 

government’s Home Affordable Modification Program. Under HAMP, a qualifying borrower is 

put on a trial payment plan, and if the trial payments are made on time, the borrower can receive 

a permanent loan modification. Wigod v. Wells Fargo Bank, 673 F.3d 547, 557 (7th Cir. 2012). 

Plaintiffs do not allege that they would have been able to make the trial payments that HAMP 

would have required. Nor do they allege that they would have been able to make the required 

payments under a permanently modified loan.

As Wells Fargo publicly disclosed in 2018, it later discovered that the automated 

software it used to evaluate requests for trial payment plans under HAMP contained a calculation 

error that led Wells Fargo to believe Plaintiffs did not qualify when it declined their application 

in 2010. Wells Fargo sent Plaintiffs a letter that admitted the mistake, stated Wells Fargo’s 

desire to make things right, enclosed a payment, offered to mediate, and informed them about a 

class action case, Hernandez v. Wells Fargo (No. 3:18-cv-7354-WHA, N.D. Cal.). Wells Fargo 

eventually sent Plaintiffs a total of $24,500 in payments, but Plaintiffs filed this lawsuit, alleging 

consumer fraud.

Mr. Stumpf and Mr. Sloan—formerly the highest-ranking executives at Wells Fargo—

have no personal knowledge of the relevant facts in this case. They do not know anything about 

Plaintiffs, their loan, or this lawsuit. They were not involved in the discovery of the software 

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error, the identification of affected customers, or the development of the resulting remediation 

plan. 

Mr. Stumpf’s name appears on a total of five produced documents: three organization 

charts and two sets of meeting minutes. Knight Decl., ¶¶ 6-7. The meetings were to discuss 

Wells Fargo’s remediation plan. Id. ¶ 7. Mr. Stumpf did not attend. Id. Instead, the meeting 

attendants discussed whether it would be appropriate for Mr. Stumpf to be the signatory on 

customer letters related to the remediation (which, ultimately, he was not). Id. None of the 

produced documents relates to Wells Fargo’s consent orders with the OCC, which is the subject

on which Plaintiffs apparently wish to depose Mr. Stumpf. See id.; see also id., Ex. A.

Mr. Sloan’s name appears on 21 produced documents. Knight Decl. ¶ 6. Of those 21 

documents, there is a single email chain relating to Mr. Sloan’s testimony before the Committee 

on Financial Services for the U.S. House of Representatives, which is the topic about which 

Plaintiffs apparently wish to question Mr. Sloan. See id. ¶ 8 and Ex. A.2 Mr. Sloan was not 

included on that email chain. Knight Decl. ¶ 8. Instead, another Wells Fargo senior executive, 

Carmen Bell, who was deposed in Hernandez, forwarded a fact sheet regarding the remediation 

plan to Wells Fargo’s corporate communications team for potential use in preparing Mr. Sloan 

for his testimony. Id. There is no unique information in the fact sheet. Id.

2 The remaining documents are (1) three copies of a generic, company-wide email blast 

regarding Wells Fargo’s August 3, 2018 10-Q filing; (2) minutes from the July 20, 2018 meeting 

of Wells Fargo’s Regulatory Compliance Oversight Committee, where other attendees gave an 

update on Wells Fargo’s remediation plan; (3) minutes from the August 23, 2018 meeting of 

Wells Fargo’s Regulatory Compliance Oversight Committee, where Mr. Sloan gave a general 

description of the remediation plan; (4) an email from Mr. Sloan to former Wells Fargo Board 

member Betsy Duke forwarding a copy of an attorney-client privileged memo and two 

PowerPoint slides that were exhibits at Carmen Bell’s Rule 30(b)(6) deposition and that were 

produced to Plaintiffs in this case; and (5) multiple copies of two email chains that include 

attorney-client privileged emails sent by or to Mr. Sloan, all relating to the Wells Fargo’s 10-Q 

filings. Knight Decl. ¶ 8. The contents of those privileged emails have been withheld, and Mr. 

Sloan accordingly cannot provide testimony on their contents. Id.

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B. Prior Discovery in Hernandez

As the Court knows, this is a copycat lawsuit. Thirty-six paragraphs of the complaint’s 

allegations (paragraphs 23-33 and 37-61) are lifted, verbatim or nearly so, from the class action 

complaints in Hernandez and another case, West v. Wells Fargo (No. 19-cv-286, E.D. Ky.). This 

case was filed only after the parties in Hernandez announced a class settlement that included all 

borrowers who experienced a foreclosure. In Hernandez, the parties conducted extensive 

discovery regarding the software error that impacted Plaintiffs’ loan modification application. 

Wells Fargo produced thousands of documents, and the plaintiffs conducted numerous 

depositions of current and former Wells Fargo employees—including a comprehensive Rule 

30(b)(6) deposition of a senior Wells Fargo executive, Carmen Bell. Every employee deposed in 

Hernandez was either (1) directly involved in the initial discovery of the software error in 2013

and the resulting, albeit mistaken, conclusion that no customers had been impacted by the error; 

or (2) the re-discovery of the error in 2018, Wells Fargo’s efforts to determine customer impact, 

and the resulting remediation plan. Because of their intimate, day-to-day involvement, those 

individuals provide Plaintiffs with the best opportunity to explore the relevant facts and issues. 

And, with the deposition of senior executive Carmen Bell, Plaintiffs have received relevant 

testimony from the standpoint of Wells Fargo’s senior management. 

Wells Fargo has agreed that Plaintiffs may use deposition transcripts from Hernandez, as 

well as documents and exhibits produced by Wells Fargo in that case. In exchange for that 

agreement, Plaintiffs agreed that they would not seek to re-depose the same witnesses or seek 

testimony on any topic that was covered by prior Rule 30(b)(6) testimony in Hernandez. 

Apparently satisfied with the information they obtained via that agreement, on March 7, 

2022, Plaintiffs filed a Motion to Set Case for Trial, representing to the Court that they could “be 

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ready for trial as early as April 12, 2022.” Dkt. 72, ¶ 20. At the March 8, 2022 status 

conference, Plaintiffs’ counsel reiterated that he “could be ready for trial very quickly” and “[w]e 

don’t really feel like we need a lot else.” Knight Decl. Ex. F, 3:20-23. To that end, Plaintiffs’ 

counsel indicated he was considering “the possibility of taking one other employee deposition 

that did not get taken in [Hernandez],” “[b]ut other than that, we pretty much could be ready [for 

trial] very quickly.” Id., 3:24-4:1.

Contrary to those representations, on April 21, 2022, Plaintiffs served seven deposition 

notices on Wells Fargo, including notices for Mr. Stumpf and Mr. Sloan. Again, that was the 

first time in 2+ years that Plaintiffs identified Mr. Stumpf and Mr. Sloan as persons they believe 

have discoverable information. 

II. ARGUMENT

A. Apex depositions are proper only in very limited circumstances.

It is well-settled that depositions of high-ranking corporate executives—often called 

“apex” depositions—pose a distinct risk of abuse that calls for special vigilance under Rule 

26(b)(2)(C). See, e.g., Todd v. Ocwen Loan Servicing, Inc., 2019 WL 8272621, at *2 (S.D. Ind. 

Dec. 13, 2019) (noting that “high level executives are vulnerable to numerous, repetitive, 

harassing, and abusive depositions, and therefore need some measure of protection from the 

courts”). The potential for abuse is obvious: not only are high-ranking executives less likely to 

have day-to-day familiarity with relevant facts than lower-level employees, but high-ranking 

executives are, within the corporate framework, “singularly unique and important individual[s] 

who can be easily subjected to unwarranted harassment and abuse.” Mulvey v. Chrysler Corp., 

106 F.R.D. 364, 366 (D.R.I. 1985) (precluding deposition of Chrysler chairman Lee Iacocca). 

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Given the potential for harassment and abuse, courts routinely exercise their authority to 

issue protective orders under Rule 26 precluding apex depositions. See, e.g., Patterson v. Avery 

Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (affirming protective order barring the 

deposition of a “high-ranking executive in a multinational corporation”); Nucap Indus. Inc. v. 

Robert Bosch LLC, 2017 WL 6059770, at *2–3 (N.D. Ill. Dec. 7, 2017) (granting protective 

order barring the deposition of “Chairman of the Board of Management”). Indeed, as this Court 

recently reiterated, 

When such “apex” depositions are sought, courts may protect high-level

executives from being deposed when any of four circumstances exist: (1) the 

[executive] has no unique personal knowledge of the matter in dispute; (2) the 

information can be garnered from other witnesses or (3) other discovery methods; 

and (4) sitting for the deposition would impose a hardship in light of the 

[executive’s] other duties. 

Little v. JB Pritzker for Governor, 2020 WL 868528, at *1 (N.D. Ill. Feb. 21, 2020) (quotations 

and citation omitted; emphasis added). Because Mr. Stump and Mr. Sloan have no unique 

information relevant to this litigation, and because any information Plaintiffs seek in attempting 

to depose them is readily available through other means, a protective order precluding their 

depositions is warranted. 

B. Mr. Stumpf and Mr. Sloan do not have any unique, personal knowledge of the 

matters in dispute.

Mr. Stumpf and Mr. Sloan do not have any unique, personal knowledge of the matters in 

dispute. The Court should thus prohibit Plaintiffs from deposing them. 

Wells Fargo understands from Plaintiffs’ initial disclosures that their interest in deposing 

Mr. Stumpf is because he “executed [Wells Fargo’s] 2011 Consent Order [with the OCC] and 

2013 Amendment thereto, and the 2015 Consent Order amending the 2011 Consent Order and 

2013 Amendment to the 2011 Consent Order.” Knight Decl., Ex. A. However, Mr. Stump’s 

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“execution” of those documents is not a matter in dispute: either he signed the consent orders or 

he did not. He did—along with every other member of Wells Fargo’s Board of Directors at the

time. See Knight Decl., Ex. B. Because he was not the only signatory, it is patently obvious that 

Mr. Stumpf does not have unique, personal knowledge regarding the “execution” of those 

documents. To the extent Plaintiffs wish to question Mr. Stumpf on Wells Fargo’s obligations 

under those consent orders and its efforts to comply therewith, those matters were covered in 

Hernandez during the Rule 30(b)(6) deposition of senior executive Carmen Bell. See Knight 

Decl., Ex. C. Thus, not only does Mr. Stumpf not have any unique, personal knowledge about 

those topics, but Plaintiffs’ attempt to seek further testimony on those issues is a breach of their 

agreement not to seek testimony on any topic that was covered by prior Rule 30(b)(6) testimony 

in Hernandez.

Plaintiffs’ effort to depose Mr. Sloan fares no better. According to their initial 

disclosures:

Mr. Sloan testified before the Committee on Financial Services, U.S. House of 

Representatives, “stating that he was familiar with the internal investigation that 

revealed Wells Fargo had ‘erroneously denied or did not offer a loan modification 

to 870 customers due to an underwriting software error” and that “[T]he first 

thing [Wells Fargo has] done is we have reached out to each one of [the 

customers], we sent them a $15,000 check, which is 2-1/2 times the standard that 

was set in the mortgage servicing settlement, and then we are asking them to 

come to see us and if there was additional harm that was done to them, we will 

make it right....what we are also doing is ask them to come in and see us and tell 

us what additional harm, if any, we caused.”

Knight Decl., Ex. A. However, that very same information was covered in the Rule 30(b)(6) 

deposition of Carmen Bell, as well as documents produced to Plaintiffs in this case, which 

indicate that (1) 870 customers were impacted by the software error; (2) Wells Fargo developed 

a remediation plan to reach impacted customers; (3) remediation payment amounts were 

calculated using the National Mortgage Settlement as a starting point, and “recognizing the 

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housing market had changed significant[ly] since 2012, an accelerant was added to the ... 

payouts,” with $15,000 going to customers who experienced a completed foreclosure, short sale, 

or deed-in-lieu of foreclosure (vs. $6,000 under the National Mortgage Settlement); and (4) 

mediation was available to customers who did not feel that the remediation payments made 

things right. See Knight Decl., Exs. C and D. Accordingly, although Mr. Sloan presumably has 

some knowledge of the issues in this case, “mere knowledge of events is not sufficient to require 

a deposition: the [executive] must have unique personal knowledge.” Little, 2020 WL 868528, 

at *2 (emphasis added); see also Lee v. City of Chicago, 2021 WL 2399999, at *4 (N.D. Ill. June 

11, 2021) (“Without a showing that [the executive] has some unique personal knowledge, the 

fact that she was made aware of plaintiff’s allegations or that she viewed [potential evidence] is 

insufficient to warrant her deposition.”); Nucap, 2017 WL 6059770, at *2–3 (granting protective 

order barring the deposition of “Chairman of the Board of Management” because the witness 

“was not involved with ... the central issues in the case”). There is no evidence indicating that 

Mr. Sloan has such information.3

 

Because Mr. Stumpf and Mr. Sloan do not have any unique, personal knowledge of the 

matters in dispute, the Court should prevent Plaintiffs from deposing them on this ground alone. 

3 To the extent Plaintiffs want Mr. Sloan to confirm the contents of his testimony, Wells Fargo 

will enter into an appropriate stipulation that preserves all objections to its admission. Such a 

stipulation would obviate the need for Mr. Sloan’s testimony, given that he has no unique, 

personal knowledge. See Lee, 2021 WL 2399999, at *4 (apex deposition was not necessary

when the defendant “has agreed to stipulate to the authenticity” of the documents at issue). 

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C. Plaintiffs can and have garnered the information they seek from other witnesses and 

discovery methods. 

The second and third factors—whether the information Plaintiffs seek “can be garnered 

from other witnesses or other discovery methods,” Little, 2020 WL 868528, at *1, also support 

entry of a protective order preventing Plaintiffs from deposing Mr. Stumpf and Mr. Sloan. 

Specifically, the deposition testimony and documents from Hernandez—which Wells 

Fargo has produced to Plaintiffs and has agreed they can use in this case—all provide detailed 

information about the relevant issues in this case. Plaintiffs cannot show that those deposition

transcripts and documents are insufficient. See id. at *2 (denying apex depositions when a Rule 

30(b)(6) witness would have “more detailed information about the allegations that plaintiffs 

make in their complaint” and apex witnesses had “produced extensive documents to plaintiffs 

that cover much of the ground that their own depositions would address”); see also Bless v. Cook 

County Sheriff’s Office, No. 2017 WL 1344522, at *2 (N.D. Ill. Apr. 12, 2017) (“there is

insufficient reason to expect the depositions to yield relevant evidence unobtainable through 

other means”); Murillo v. Kohl’s Corp., 2016 WL 6090862, at *3-4 (E.D. Wis. Oct. 18, 2016) 

(preventing deposition of defendant’s second-highest ranking executive because she had no 

personal knowledge of the relevant issues and because “less burdensome channels of discovery 

have been available to the plaintiffs to gather information on the topics at issue,” including Rule 

30(b)(6) depositions, depositions of key employees, and documents). Because any information 

Plaintiffs hope to learn from Mr. Stumpf and Mr. Sloan can be “garnered from other witnesses or 

other discovery methods,” Little, 2020 WL 868528, at *1, the Court should enter a protective 

order for this reason as well.

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III. CONCLUSION

“An apex deposition is generally inappropriate when an upper-level executive lacks 

personal knowledge regarding the litigation, or when the requested information can be garnered 

from more knowledgeable subordinates.” Murillo, 2016 WL 6090862, at *4. Such is the 

situation with Mr. Stumpf and Mr. Sloan, who had no personal involvement in the discovery of 

the software error, the efforts to identify impacted customers, and the resulting remediation plan. 

“What is more,” because Plaintiffs have been given access to the discovery in Hernandez, 

including thousands of documents and Rule 30(b)(6) and other deposition testimony, they “have 

had ample opportunity to [conduct discovery] with lower-level employees with direct, personal

involvement and knowledge about these issues.” Id. Accordingly, Mr. Stumpf and Mr. Sloan’s 

depositions “would be unduly burdensome, disruptive, and disproportionate to the needs of the 

litigation, and [] a protective order should, therefore, issue preventing [their] deposition[s].” Id. 

Indeed, this is a classic case for prohibiting the deposition of a company’s former high-ranking 

executives. Accordingly, Wells Fargo respectfully requests that the Court issue a protective 

order precluding Plaintiffs from deposing its former CEOs John Stumpf and Tim Sloan. 

Dated: May 12, 2022 Respectfully submitted,

_/s/ Shawn R. Obi_________ 

Shawn R. Obi (pro hac vice) 

Winston & Strawn LLP 

333 South Grand Avenue 

Los Angeles, CA 90071 

Phone: 213-615-1700 

Fax: 213-615-1750 

Email: SObi@winston.com 

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Christopher Parker 

Winston & Strawn LLP

35 West Wacker Drive

Chicago, IL 60601

Phone: 312-558-8085

Fax: 312-558-5700

Email: cparker@winston.com 

Angela A. Smedley (pro hac vice)

Winston & Strawn LLP

200 Park Avenue

New York, NY 10166

Phone: 212-294-5348

Fax: 212-294-4700

Email: asmedley@winston.com

Attorneys for Wells Fargo Bank, N.A.

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 12th day of May 2022, the foregoing was filed 

electronically with the Clerk of the Court for the United States District Court for the Northern 

District of Illinois, and was served by operation of that Court’s electronic filing system, upon the 

following: 

Rusty A. Payton 

Payton Legal Group 

20 North Clark Street, Suite 3300 

Chicago, Illinois 60602 

(773) 682-5210 

info@payton.legal 

Salvador J. Lopez 

Robson & Lopez, LLC 

180 W. Washington Street, Suite 700 

Chicago, Illinois 60602 

(312) 525-2166 

lopez@robsonlopez.com 

Nicholas H. Wooten 

Nick Wooten, LLC 

5125 Burnt Pine Drive 

Conway, Arkansas 72034 

(833) 937-6389 

nick@nickwooten.com 

Attorneys for Plaintiff

 /s/ Shawn R. Obi 

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