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Marshall Division

Plaintiff, 2-02-CV-0304




Plaintiff respectfully objects to and moves to strike Experian’s demonstrative evidence and aids, as follows:
Demonstrative aids are designed to supplant other forms of information input and ordinarily are accorded additional weight by lay-persons in the jury. D.Pope and M.Dombroff, Trial Objections, Second Edition, James Publishing, Inc. [2000], section 300, p.3.2. Experian seeks to use several demonstrative aids in this case.
Demonstrative aids and demonstrative evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; such determination is within trial court's considerable discretion. F.R.E. 403; Westcott v. Crinklaw, 68 F.3d 1073, 1077 [8th Cir.1995]; Young Dental Mfg. Co., Inc. v. Q3 Special, 112 F.3d 1137 [C.A.Fed. (Mo.),1997]. Plaintiff seeks to avoid undue prejudice, confusion of the issues, or misleading the jurors. Plaintiff believe defendant’s offered demonstrative aids misrepresent the facts and otherwise distort facts in various ways other than oversimplifying the facts. Plaintiff will further need ample opportunity to cross-examine any witnesses that have relied on such an aid in an effort to lessen the aid's evidentiary weight. Id. Of course, Experian bears the burden of proving any demonstrative evidence meets these standards and rules. Jackson v. Fletcher, 647 F.2d 1020, 1027 [10th Cir.1981]; U.S. v. Gaskell, 985 F.2d 1056 [11th Cir.1993] [Fla.]. Whether to admit or exclude demonstrative evidence is matter within sound and broad discretion of district court. Petty v. Ideco, Div. of Dresser Industries, Inc., 761 F.2d 1146 [5th Cir. 1998] [Tex.]; Harvey v. Culpepper, 801 S.W.2d 652 [Tex. App. 1990].
Experian’s Timeline
Plaintiff objects to Experian’s Timeline: [1] for lack of foundation [as it is misleading and inaccurate in content], and [2] undue prejudice created towards plaintiff under the balancing test in F.R.E. 403. Experian’s Timeline should be excluded.
Experian states as facts several matters which are plainly inaccurate and contrary to the evidence taken:
[1] Experian claims that plaintiff’s name was associated with Comeaux’s social security number in 1991. That is not a fair or accurate representation of what WFNNB testified. Plaintiff did not testify on that issue as plaintiff would not be privy to such records. Experian did not testify about this issue either.
[2] Experian’s alleged acquisition of TRW’s database is irrelevant. Experian will apparently attempt to now claim that the files were mixed while the database was in TRW’s ownership before Experian bought out TRW. Experian has not raised any such defense and, in fact, Experian took over the entire TRW credit reporting operation, employees, etc., in 1996. These facts are irrelevant to this case.
[3] Experian failed to make any mention of the contacts between Miss Carr and Experian wherein Carr complained of the mixed file issues. The fact of communications giving Experian early notice in 1997 is very important. Again, prior to plaintiff’s contacts with Experian in 1999, back in 1997 Cindy Carr had contacted Experian after being denied credit and she requested her credit report and then lodged disputes regarding errors in the file which consisted of mixed file data pertaining to plaintiff Comeaux. While the details of those contacts have not been disclosed by Experian, except in cursory D/R Log reports, it is clear those contacts took place. Based on information shown in Experian’s Administrative [Admin] report and 7X report, Experian had these two consumers’ credit files mixed since before 1997 and Experian must have known that when they communicated with Mrs. Carr in 1997. Experian has conveniently picked which facts to denote in the transactional history. A timeline must provide both accurate and helpful information to the jury. United States v. Williams, 657 F.2d 199, 203 [8th Cir. 1981]. As a demonstrative aid, the item must be more than a one-sided presentation of information and it must fairly and accurately represent the history.
[4] Experian notes plaintiff’s “contacts” with Experian in January, 1999. Experian has argued in its dispositive motion that it was not aware that plaintiff’s credit file was mixed until plaintiff filed suit. Page 2, Experian’s brief in support. Nothing could be further from the truth. Experian further argued “...plaintiff did not inform Experian.” Id. Again, false. Plaintiff communicated with Experian in 1999. Experian mentioned those contacts in brief, but like with this timeline, Experian conveniently failed to disclose that plaintiff contested items and supplied Experian with a marked up Trans Union credit report identifying errors, many of which were also mixed in Experian’s system, as Experian would not provide plaintiff with her credit report in January, 1999. Discussed infra. Though originally denying it had contacts with plaintiff prior to this lawsuit, as discovery continued and after plaintiff’s deposition in mid-November, 2003, Experian produced records showing that plaintiff did contact Experian in 1999 regarding her credit report. In late December, 1998 or early January, 1999, plaintiff was denied a loan by Hibernia National Bank and she was advised by Hibernia of problems with derogatory data in her credit report and it prompted her contact with the three national credit reporting agencies, including Experian. In January, 1999, Experian received dispute communications from plaintiff. Plaintiff first called Experian then telefaxed information to Experian regarding the need for a copy of her credit file and she sent Experian a marked up copy of her January 4, 1999, Trans Union credit report with multiple errors circled, many of which were still appearing on her Experian credit report she later received some nine months later. According to Experian’s own records, Experian did not process the disputes because, according to its own records, plaintiff’s “social does not appear on file.” Thus, Experian directed plaintiff to go and get a Social Security Administration form document and fill it out and return it. Id. at p.97. Experian merely filed plaintiff’s dispute letter away in its mail room. In this contact, like later contacts, plaintiff was complaining of multiple errors in her credit report and her mis-impression that perhaps someone had stolen her identity. One might naturally conclude that if they were not familiar with mixed credit files and had simply seen multiple identities and accounts wound together into their credit report. Experian’s timeline entry is neither accurate or proper.
[5] Experian claims that plaintiff “stated” that she is an identity fraud victim. As noted above, plaintiff received mis-information and Experian was in the best position to tell plaintiff how each trade line and public record item was reported, not vice-versa. Plaintiff did not have access to the Admin or 7X report information showing the precise identification data reported in connection with each separate account or public record item such as to know which items were really reported in Carr’s identity and not plaintiff’s. Otherwise a consumer is quite naturally mislead to think they are an ID theft victim when, in fact, they are really a victim of Experian’s mixed file debacle. Plaintiff testified that she had no idea what had happened.
[6] Experian’s reference to “Silence: No Communication from Comeaux to Experian.” This is patently improper. Communications and contacts go to the weight of notice to the defendant as to errors in its records such as give rise to a breach of 1681e[b] and as to reinvestigation duties under 1681i[a]. This Honorable Court granted Experian’s dispositive motion and found the reinvestigation claims were stale and outside the statute, 1681p. Now, Experian seeks to still claim a lack of contact as if it has some relevance to its duties under 1681e[b]. Notice to Experian in 1997-1999 is relevant as notice of the errors and information available to remedy its records and comply prospectively with section 1681e[b]. See citations briefed in plaintiff’s Opposition to Experian’s Motion in Limine [rather than rehash them here]. However, Experian’s effort to suggest that plaintiff’s lack of contact with Experian, which Experian claims spans from 2000-2002, is not relevant to its duties under 1681e[b], the only section of the FCRA under which this case is proceeding. The fact is that plaintiff thought Experian had finally corrected her credit report at the end of 1999, but learned in 2002 that corrections were not made and it was worse than ever and replete with Carr’s data. It creates a highly improper impression to the jury for Experian to bold and emphasize the “silence” remarks and their inclusion at all is both irrelevant, improper and highly prejudicial if allowed.
[7] Experian’s portrayal of plaintiff’s October 25, 1999 contacts as “Experian sends Comeaux her credit report.” On or about October 25, 1999, Experian had contact with plaintiff regarding multiple errors in her credit file at Experian. Plaintiff sent a letter dated October 18, 1999 to Experian seeking information about the ongoing disputes and requesting information from Experian. Experian added a fraud alert, a purported protective text message to her credit file. Plaintiff was led to believe that this alert would protect her. Experian sent plaintiff a form letter with suggestions of what to do if she is a fraud victim. Experian logged no disputes and did absolutely nothing to investigate the multiple inaccuracies in plaintiff’s credit file nor did Experian even bother to unwind the multiple social security numbers and aliases shown in her credit file at that time. Of course, plaintiff was led to believe that Experian was acting on her behalf to remedy the problem. On October 25, 1999, Experian sent plaintiff a copy of her credit report and it still contained two different social security numbers and numerous alias names, many of which were plainly not that of plaintiff and the report was 30 pages long replete with public records data and accounts which were not plaintiff’s. Experian could easily see the discrepancies in file and yet did nothing about it. Id. In October, 1999, Miss Holt could have easily checked the D/R Log to see plaintiff’s earlier disputes and contacts with Experian from earlier in 1999. She did nothing. In a remarkably honest admission, Miss Holt admitted that she was quite familiar with seeing Experian credit files containing multiple social security numbers. She conceded that Experian does nothing to screen or audit its files to try and locate files with more than one social security number in an effort to rectify mixed files. Miss Holt testified:
Q: Okay. When you receive a dispute from a consumer such as Miss Comeaux and there are two social security numbers shown in the credit file, does Experian have a procedure to look at each of the trade lines and public record items and inquiries to determine what name row and address row information is associated with those items? Miss Andrews: Objection; Form.

A: No, sir.

Miss Holt conceded that if Experian’s management allowed her to see the name row and address row cross-reference information, so as to know what personal identifiers were reported in connection with each item of data, it would be “helpful” to her ability to determine which items really belonged to plaintiff, as opposed to other persons, like Miss Carr. It would be important to any reinvestigation. Id. Miss Holt testified that Experian does nothing to try and determine whether a complaining consumer is suffering from identity theft or a mixed file, two distinct problems. Worse yet, Experian uses the same, exact procedures for investigating mixed files as it uses for identity theft. Id. In fact, Experian uses the same, exact investigation procedure for basic inaccuracy disputes. Id. In a nutshell, Experian waits for the consumer to specify an inaccurate account then Experian sends a form CDV or ACDV to the furnisher, who in turn, is to respond. Experian accepts, carte blanche and “end of story,” the creditor’s/collector’s/subscriber’s word as the final result of the reinvestigation. Miss Holt suggested that Experian’s inability to correct plaintiff’s credit file in October, 1999 could be linked to Experian’s lack of knowledge as to whether plaintiff had ever been married, yet Experian has no procedure to ask for that information though Experian complains now that plaintiff should have somehow guessed that Experian purportedly needs that data to figure out its own mixed files. Experian also failed to note that Plaintiff had a recollection of marking up the October 25, 1999 Experian credit report, denoting the errors and telefaxing it back to Experian.
[8] Experian’s references to Plaintiff’s counsel and letters authored by counsel to plaintiff. Experian seeks to list on its timeline references to plaintiff’s counsel writing plaintiff and addressing the opinion of plaintiff’s counsel that she suffered from a mixed credit file and not ID theft. Plaintiff inadvertently disclosed copies of privileged communications expressing counsel’s opinions addressed to her. Experian should be barred from such references. Not only are these communications privileged but they are wholly irrelevant to the claims and defenses under section 1681e[b]. How could plaintiff’s counsel’s opinion about her credit reports be relevant to whether Experian violated 1681e[b] of the FCRA and caused plaintiff damages? It is merely another effort by Experian to mis-portray the facts and smear consumer’s counsel. Even if a plausible argument could be made on relevance, the prejudicial effect of Experian’s tactic outweighs any possible benefit to the jury. Experian seeks to put plaintiff’s counsel on trial here since they lack a realistic defense.
Experian’s Melinda Miller Demonstrative Aid
The David Browne “dog and pony show” is attempting to yet again deceive the jury into believing facts which are simply not present in this case. As a justification for using a defective and loose matching algorithm, Experian hopes to confuse the jury with stories of Melinda Miller and name changes, without the benefit of using and showing the multiple other FIXED personal identifiers which must be considered in the match process. Instead, Experian wants to suggest that people use names inconsistently thus Experian must permit matches on names that greatly differ while ignoring FIXED personal identifiers, like date of birth, social security number, mother’s maiden name, etc.
Experian also seeks to inject the notion that geographic disparity though it is likewise not present in this case. The problem with the aid is that it misrepresents the scenario we have here.
The fact is that Experian has prepared and published extremely long credit reports loaded with data which does not pertain to plaintiff but which Experian has attributed to her. In addition to the most derogatory bankruptcy reference, there were at least 70 trade lines and collection accounts, most with a negative rating and status assigned, mixed into plaintiff’s Experian credit file and credit reports. There were four different social security numbers reporting in her Experian credit file and credit reports. Experian listed that plaintiff was married to another woman, named “Bridgette,” who it turned out was Cindy Carr’s teenage daughter. Experian listed plaintiff as having joint accounts with Louis Carr, Cindy Carr’s ex-husband. There were many addresses in the reports which belonged to Miss Carr, Louis Carr, her ex-husband, and even Miss Carr’s mother and ex-mother-in-law. There were countless aliases listed in the reports. False telephone numbers, employer data, and other information was replete throughout the Experian credit reports. Truly, the reports contained far more information [primarily very negative and bankruptcy-related data] pertaining to Miss Carr but listed as being attributed to plaintiff by Experian. Experian likewise listed Mrs. Carr’s mortgage on her home which would have been taken out when plaintiff was 10 years old. Plainly, plaintiff did not and could not have had a mortgage at 10 years of age. Experian’s “Melinda Miller” aid is to suggest that plaintiff’s use of the names: Cynthia Annette Comeaux [her legal name], Cyndi Comeaux, and Cynthia Comeaux, somehow made plaintiff the cause of the inaccurate credit reports. Experian also blames the fact that plaintiff [CYNDI/CYNTHIA] has a similar first name to Miss [CINDY] Carr, i.e., “CYNDI” as opposed to “CINDY,” and that the women have social security numbers that differ by one number. Simply considering the number of possible social security permutations possible for each social security number, to result in a 7 of 9 match or 8 of 9 match, in connection with the very real probability that one of the permutations would share a similar name, highlights the negligent and reckless nature in which Experian has approached its matching logic design to the exclusion of other identifiers which must be considered. Rather than place a burden on reporting lenders/collectors/subscribers to accurately key in data, Experian proclaims that the system must give great leeway for typographical errors so as not to miss collecting stray data for compilation in the report during the match process. Experian favors over-information over “maximum possible accuracy” mandated by section 1681e[b] of the FCRA.
Experian’s Multiple Social Security Number Demostrative Aid
Experian also seeks to show the jury another aid which has nothing to do with the facts of this case. The Multiple SSN aid suggests that it is all the lenders’ fault for transposing numbers and reporting various family members’ social security numbers in connection with Melinda Miller. There are no such facts in this case. Again, Experian’s ploy is to confuse and boondoggle the jury. It is nothing short of shameful. Experian’s effort to shun their responsibility and blame their only source of data must not prevail. After all, if these lenders are not reliable sources of data, then why is Experian accepting their reportings.
Plaintiff’s motion should be granted. This Honorable Court’s decision is subject to an abuse of discretion standard on review.
Respectfully submitted:

Bodenheimer, Jones & Szwak, LLC

By: _________________________________
David A. Szwak, LBR#21157, TA
416 Travis St., Ste. 240
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400
FAX 221-6555

I hereby certify that a copy of the above and foregoing has been served upon all counsel of record by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid on this the ____ day of ________________, 20____.

__________________________________ OF COUNSEL
(81.98 KiB) Downloaded 144 times
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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