Underwood et al v. Bank of America Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-02329-RM-CYC
ERIK M. UNDERWOOD,
MY24HOURNEWS.COM, INC.,
Plaintiffs,
v.
BANK OF AMERICA CORPORATION,
Defendant/Counter Claimant/Counter Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
Before the Court is Plaintiff’s Motion to Compel Mr. Underwood to (1) Comply with this
Court’s October 24, 2024 Order to Produce any Documents Submitted to Any Entities Involving
Bank of America and (2) Remedy Protective Order Violations in Georgia (the “Motion”). ECF
No. 257. For the reasons below, the Court GRANTS IN PART the defendant’s Motion.
BACKGROUND
On September 11, 2018, the plaintiff commenced this action, alleging that defendant
Bank of America Corporation infringed a service mark “E.R.I.C.A.” when it launched a virtual
financial assistant by that same name. ECF No. 1. In the course of litigation, the parties filed a
Joint Motion for Protective Order. ECF No. 54. The Court entered the requested order (the
“Protective Order”). ECF No. 58. The Protective Order provides a process for designating
material as confidential and one for challenging that designation. ECF No. 58 at 1-2.
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On October 9, 2022, the Court granted summary judgment in favor of the defendant. ECF
No. 185. The Tenth Circuit affirmed a year and a half later. Underwood v. Bank of America
Corp., 22-1402, 2024 WL 1670592 (10th Cir. Apr. 18, 2024).
That was not the end of the proceedings. Instead, the defendant moved for an order to
show cause as to why the plaintiff should not be held in contempt for violating the Protective
Order, asserting that the plaintiff filed actions in Georgia in which he disclosed confidential
material gained through discovery in this action. ECF No. 207 at 3. The parties subsequently
submitted a joint status report, noting that they were working together to remedy the alleged
Protective Order violations. ECF No. 220. In that joint status report, the parties reported that the
plaintiff had filed two “Unopposed Motions to Restrict File and Permit Redaction of Verified
Complaint and Withdrawal of Submitted Exhibits” in the matters pending in Georgia, which
were drafted by the defendant. Id. A second joint status report noted that the plaintiff was in the
process of handing over all confidential documents he possessed and, because of such
cooperation, the defendant withdrew its request for a show-cause hearing. ECF No. 222.
That, too, did not end the matter. On October 9 and 12, 2024, the plaintiff’s two attorneys
each moved to withdraw. ECF Nos. 235, 238. The motions were referred to then-Chief
Magistrate Judge Hegarty. ECF Nos. 236, 241. The defendant opposed the latter of these
motions, arguing that the plaintiff had not truthfully disclosed all instances in which he disclosed
confidential documents, contrary to the promise of the second joint status report. ECF No. 240
¶ 6. That, in turn, prompted Judge Hegarty to convene an evidentiary hearing on October 24,
2024. ECF No. 243. At that hearing, Judge Hegarty ordered the plaintiff to
assemble and submit to the attorneys for Bank of America
complete copies of anything you have given, whether letters,
documents, reports of any kind, that you have given to any
investigatory or law enforcement agency . . . about their conduct
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. . . I want you to collect everything you’ve submitted to anybody
and produce it to Bank of America so I can understand the scope of
what we’re talking about.
ECF No. 251 at 68-69. The plaintiff had until November 7, 2024 to comply. Id. at 71.
On December 12, 2024, this Motion followed, asserting that the plaintiff had not
complied with the October 24, 2024 order. ECF No. 257.
ANALYSIS
The defendant requests that this Court compel the plaintiff to (1) comply with the Court’s
October 24, 2024 Order, (2) withdraw his “Unopposed Motions to Restrict File and Permit
Redaction of Verified Complaint and Withdrawal of Submitted Exhibits” and file a Renewed
Emergency Motion because the State of Georgia opposed the original motions, (3) request a
hearing in his case in the State of Georgia regarding the sealing of Bank of America’s
confidential information, and (4) pay Bank of America’s reasonable fees associated with this
Motion. ECF No. 257 at 9. Each request is addressed in turn.
First, by not producing copies of disclosed confidential information, the plaintiff has not
complied with the Court’s October 24, 2024 order. He asserts that such conduct does not run
afoul of the Protective Order. ECF No. 278 at 2. That is beside the point. The current issue is not
whether he violated the Protective Order. Indeed, at the October 24, 2024 hearing, Judge Hegarty
made it clear that the district judge would evaluate any such violation. ECF No. 251 at 71.
Instead, the issue is whether the plaintiff complied with the Court’s October 24, 2024 order
directing him to produce documents. He has not and makes no attempt to argue otherwise. See
ECF No. 275 at 2-3. The Court therefore GRANTS the defendant’s first request for relief.
Accordingly, the plaintiff shall identify any proceedings, complaints, investigations, or other
actions that he has initiated involving Bank of America (including its employees and its counsel),
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regardless of whether Bank of America is aware of such and shall produce all documents,
materials, and any other information that he submitted in support of such proceedings,
complaints, investigations, or other actions by April 7, 2025.
The Court DENIES WITHOUT PREJUDICE the defendant’s second and third
requests for relief. At the October 24, 2024 hearing, Judge Hegarty ordered the plaintiff to
produce all documents he submitted to other entities and produce it to the defendant. ECF No.
251 at 68-69. Here, the defendant’s requests seek injunctive relief and ask the Court to compel
the plaintiff to comply with the Court’s October 24, 2024 order; however, at no point did Judge
Hegarty order the plaintiff to take specific action in his proceedings in other jurisdictions. As
such, at this juncture, that order provides no legal basis for such injunctive relief.
The defendant’s final request for relief is that this Court grant it attorney’s fees that are
associated with this Motion. To be sure, attorney’s fees are mandatory under Fed. R. Civ. P.
37(a)(5)(A) upon the granting of a motion to compel, unless one of the following exceptions
applies: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or
discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection
was substantially justified; or (iii) other circumstances make an award of expenses unjust.
However, Judge Hegarty noted at the October 24, 2024 hearing that the issue of attorney’s fees
would not be decided until a final supplement is provided, which, in turn, will not be until some
point after the plaintiff complies with the October 24, 2024 order. Accordingly, the request for
attorney’s fees is premature. As such, the Court DENIES WITHOUT PREJUDICE the
defendant’s final request.
CONCLUSION
For the reasons set forth herein, it is ORDERED that:
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(1) The Defendant’s Motion, ECF No. 257, is GRANTED IN PART;
(2) The Plaintiff SHALL produce documents as specified in this Order on or before
April 7, 2025; and
(3) All other forms of relief requested are DENIED WITHOUT PREJUDICE.
Entered and dated this 18th day of March, 2025, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
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