XPN: David Browne:Striking His Affidavit

David A. Szwak

XPN: David Browne:Striking His Affidavit

Postby David A. Szwak » Thu Nov 03, 2005 9:44 pm

UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JAMES E. JENSEN CAUSE NO.
4:00CV0040
VERSUS

EXPERIAN INFORMATION
SOLUTIONS JURY DEMANDED

PLAINTIFF'S REPLY TO EXPERIAN'S OPPOSITION
TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

MAY IT PLEASE THE COURT:

Plaintiff, JAMES E. JENSEN, respectfully replies to Experian's Opposition to Plaintiff's Motion For Summary Judgment, as follows:

This Honorable Court should disregard the self-serving affidavit of David Browne. Plaintiff is filing concurrently a motion to strike and in limine regarding Browne's affidavit. Browne's affidavit is objected to as irrelevant, immaterial, lacks foundation, purports to render a legal conclusion and must be excluded under F.R.E. 701[c] and the Scheduling Order of this case.

The Court should note that Browne is an employee and professional witness for Experian. Recently in Nagle v. Experian, et al, cause no. CV99-J-3297-S, Northern District of Alabama, Birmingham Division, Judge Inge Johnson, severely limited Browne' ability to testify and properly limited Browne's testimony to the facts of the case and did not allow Browne's purported expert opinions. Plaintiff's counsel, Mike Lewis, argued that Browne was being submitted as a lay witness but being called upon to give purported expert opinions, just like in this case. Lewis analogized Browne's role to that of a "friendly professor" giving the "Chamber of Commerce Speech." Compare page 10, Browne Affidavit in Jensen ["my years of experience," "knowledge I have acquired over the years"]. The Court agreed with Lewis and restricted Browne's involvement.

Browne does not work at the Allen, Texas-based National Consumer Assistance Center [NCAC] for Experian. That location handles incoming consumer complaints, calls [if they are allowed through] and CDV's/ACDV's and reinvestigation activities, including issuance of consumer disclosure reports, both CDI and CDF. Browne works in California and is regularly proffered by Experian as an alleged expert in their computer systems design and operation.

Attached hereto is a proffered Expert Report of Browne in another case. That case, Whitesides v. Experian, et al, is pending trial at this time in the Western District of Louisiana, Shreveport Division. In Whitesides, Browne purports to give the same Chamber of Commerce speech but, there, under the guise of being an expert. In this case, Jensen, he is not offered as an expert but has suddenly presented an affidavit now that the expert witness designation deadline has passed and plaintiff has filed a dispositive motion.

The facts in this case show that Browne's affidavit is nothing short of misleading and a smoke screen. Pages 1-8 of Browne's affidavit contain unsubstantiated statements, some of which contradict Experian's designated 30[b][6] deponent, Carolyn Helm. Browne tries to argue that Experian cannot force its subscribers to report consumer identification data. Experian solely controls the required input, both in terms of how it is reported to them, as well as what data must be inputted to access a report and cause the matching process to compile a report. Helm initially tried to carry the same Experian party line however she was forced to admit that Experian has the control and discretion as to what data they accept and post and as to the required input before access and report compilation occurs. Page 4, Browne Affidavit.

Browne tries to argue that consumer's identifiers change. A consumer's social security number, date of birth and other identifiers do not change under any circumstances. Here, plaintiff's name has not changed.

Browne attempts to lay off fault generally on all consumers and third persons. He argues that consumers are causing the problems. In fact, it is Experian's chosen business and they must accept the realities of the information society. Congress has charged Experian with the grave responsibility of accuracy. Experian may not misplace blame onto society for its business shortcomings.

On page 9 of his affidavit, first full paragraph, Browne summarizes Helm's testimony, except to the extent that the records show the outcome of that reinvestigation. Browne's remarks here, about the Jensen case, lack any foundation as Browne was not involved in any investigation or contact with plaintiff.

Browne has basically argued that the O'Connor v. Trans Union decision is wrong, in his opinion. Again, Browne is not competent to testify about legal issues.

The court should note that Experian cannot refute that 20 out of 46 trade line items on plaintiff's credit report were wrong and mixed into his report by Experian. Page 3, Opposition. Experian argued that plaintiff should have singled out each item, rather than like O'Connor, advising the credit reporting agency that the report is so patently wrong and chock full of errors, that the agency need to check each and every item because many do not pertain to him. Experian's own form only allowed room for four [4] disputes.

The evidence here shows that Experian did not have to guess. Id. It is disingenuous for Experian to suggest that they had no idea what plaintiff was complaining about. Helm's own testimony undercuts this argument by Experian.

Experian attempted to intertwine the concepts of "directly communicates a dispute to it" with the concept of "what is a dispute." Page 4, Opposition FN-5. Plaintiff did communicate directly with Experian. He did not rely on Trans Union or Equifax to tell them. Experian twists the FTC language to suggest that it lends itself to a finding that plaintiff's disputes were inadequate.

Experian goes on to argue about plaintiff's complaints and damages as to Trans Union. Those have nothing to do with this case.

In sum, Experian's Opposition is an effort to distract the court. The competent evidence in this case supports plaintiff's motion.

Respectfully submitted:

Bodenheimer, Jones & Szwak


By: _______________________________
David A. Szwak, T.A., LBR#21157
610 Marshall St., Ste. 905
Shreveport, Louisiana 71101
(318) 424-1400
FAX 221-6555

JENSEN & JENSEN


By: _______________________________
SUSAN JENSEN, TBR#10647300
JOHN R. JENSEN, TBR#10646500
6025 West Interstate 20
Arlington, Texas 76017
(817) 478-4940
FAX 478-4707
ATTORNEYS FOR PLAINTIFF, JAMES E. JENSEN


CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served upon opposing counsel of record on this the _____ day of March, 2001.

__________________________________
OF COUNSEL

David A. Szwak

Postby David A. Szwak » Sun Nov 06, 2005 8:19 pm

UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF TEXAS
Marshall Division

CYNTHIA COMEAUX,
Plaintiff,
Versus Civil Action No.
2-02CV0304
EXPERIAN INFORMATION SOLUTIONS, JURY DEMANDED,
Defendant.

A F F I D A V I T
STATE OF LOUISIANA
PARISH OF CADDO

BEFORE ME, the undersigned Notary Public, personally came and appeared David A. Szwak, a major domiciliary of Bossier City, Bossier Parish, Louisiana, who after being duly sworn did depose and state, upon personal knowledge, as follows:

That he is the attorney of record for the plaintiff That he is very familiar with reading credit reports and the problems suffered by consumers due to credit reporting errors. That plaintiff is the victim of an extreme mixed credit file lawsuit problem caused by Experian’s continual blending of credit data pertaining to a New Orleans-based woman [Cindy Carr] with that of plaintiff, Cynthia [“Cyndi”] Comeaux. That the sole cause of the blending is the lack of reasonable procedures of Experian to keep separate data pertaining to two entirely different persons.

That discovery has commenced but has stalled for several reasons. That in the course of disclosure, Experian has identified David Browne as an alleged employee witness and self-professed expert. That Mr. Browne works in Costa Mesa, California for Experian but, in large part, works as a professional witness for Experian, under a job title of Compliance Policy Specialist. That Browne has testified inside and outside of California on a regular basis. That Browne’s name is continuously listed as an expert and employee expert and, at time, as a lay witness for Experian in lawsuits defended by Experian’s national law firm counsel, Jones Day. That he has directly handled, consulted in, and been an expert witness in over 100 cases involving Experian and its predecessor, TRW. Browne’s name is repeatedly listed as an alleged witness by defense counsel defending Experian Information Solutions, Inc. f/k/a TRW Inc.

That Browne has testified on many occasions across the United States on behalf of Experian and its predecessor, who Browne worked for in the identical capacity, TRW Inc.

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David A. Szwak Page 2 of 6


That he has handled and been involved in reviewing dozens of cases involving Experian and Browne is almost always listed as one of several professional witnesses for Experian. That Experian routinely brings Browne in for the purpose of delivering a “Chamber of Commerce” style testimony.

That he indicated a desire to depose Browne to Experian’s counsels but cannot obtain a date for that purpose. That counsel for Experian, Dan McLoon, has refused to permit the deposition to take place in Texas, where this lawsuit is pending. That he conferred with Experian’s co-counsel, a Texas attorney Lucinda “Cindy” Andrew, and with pro hac vice counsel for Experian, Dan McLoon. That Experian refuses to allow the deposition in Texas despite offers made. That he offered to split Browne’s travel expenses so Browne could be made available for deposition in Texas. That Experian’s counsel refused.
That he offered to tax as court costs Browne’s travel expenses so Browne could be made available for deposition in Texas. That Experian’s counsel refused. That Experian has refused to make him available anywhere other than Costa Mesa, California.

That he has a second case against Experian going to trial in the United States District Court in and for the Southern District of Texas, Houston Division, in Maricela Mendoza v. Experian, et al, with a jury trial docket call on December 1, before Judge Hoyt. That in Mendoza, Browne has been listed as a trial witness and Experian’s counsel indicated that Browne will appear for trial to testify. That Experian’s lawyers in this case are the same lawyers in the Mendoza case.

That he requested the ability to depose Browne while Browne is present in Texas during the month of December. Experian’s counsel refused claiming that it would be too confusing for Browne to have to be knowledgeable about two cases at the same time. That Experian has refused to permit the deposition in Texas.

That Browne’s travel schedule cannot be obtained but it is known that Browne routinely travels in connection with his role at Experian. That Experian’s counsel McLoon claimed that Browne cannot travel as Browne is allegedly a single father with small children. That he has met Browne, who appears to be in his late 60's in age.

That travel to Costa Mesa, California works a real hardship on him, as plaintiff’s counsel, and a great expense to plaintiff Cyndi Comeaux, who is a single mother and litigant in this case, who has been severely and financially damaged by defendant. That Experian has counsel in both Texas and California.


_______________________________
David A. Szwak
Page 3 of 6


That he, on behalf of Plaintiff, commenced the Rule 30[b][6] deposition of Experian a little over one week ago. That Experian offered a single witness, Shannon Stafford, for deposition in Dallas, Texas, and designated her for only two areas of inquiry. That Plaintiff sought information about the other numerous areas of inquiry and he was told that Browne was designated as to all of the other areas. That Experian’s counsel repeatedly protested questions as “outside the area of designation” and the witness parroted in response. That he can file that transcript if it pleases the court. That Experian opted to designate Browne on all of the other topics in the notice of deposition, of which there were many due to Experian’s hyper-technical manner of responding to notices of depositions duces tecum with areas of inquiry listed and usual countless objections.

That Plaintiff seeks the ability to depose Browne in Texas and asserts that travel to California is unnecessary. That defendant’s headquarters appears to be located in several jurisdictions, one of which is in Allen, Texas, which is in the Eastern District of Texas.

That due to plaintiff’s financial condition and the need for access to Experian’s pool of Allen, Texas based witnesses, plaintiff's choice of forum was effectively constrained. That Plaintiff was somewhat restricted in her ability to file suit elsewhere, especially when you consider the thought of filing suit in California when she lives in Irving, Texas and works for the Dallas Cowboys, and she filed in a District where defendant has a major facility and houses all of its witnesses involved in this lawsuit, particularly all of its fact witnesses. That Browne is not a fact witness and is merely offered as a purported employee expert witness. That Plaintiff is likewise financially restricted in her ability to file suit in California. That Plaintiff’s counsel is not licensed in California and does not regularly handle cases there though counsel has been involved in a couple of suits there in the past five years as a second chair pro hac vice. That Experian has chosen to make its principal place of business in this District and not in California and the events complained of herein all took place in this District and not in California.

That plaintiff is not equally or well-equipped to bear the costs associated with Browne’s deposition. That Experian is a large, multi-million dollar company. That Plaintiff does not have the financial wherewithal to pursue Experian witnesses in the locations Experian has chosen to claim representatives responsive to the major and almost all of the areas of inquiry in the Notice of Deposition. That the increase in the overall cost of litigation will be significant if the deposition is ordered to take place in Costa Mesa, California. That the expense of transporting him and Cindy Andrew to California for the deposition will be great. That McLoon’s travel from Los Angeles to Costa Mesa is really not a factor.


_______________________________
David A. Szwak Page 4 of 6


That it would be greatly convenient to depose Browne while he is present in Texas, as he is presently scheduled to be in December. That Experian’s counsel claims that Browne cannot be expected to know two cases at the same time. That it seems to expose Browne’s inadequacy as a responsive witness under the areas of inquiry. That Browne and Experian seek to make litigation expensive and difficult so as to deter claims, as has been shown in many other lawsuits. That it seems that Experian purposefully chooses to elect Browne as witness while they maintain a host of other witnesses in Allen, Texas. That Plaintiff has pointed out that Browne regularly travels to testify and, in fact, is traveling to Texas next month [December] to testify in a trial. That Browne has testified in other trial though primarily as a lay witness for Experian. That Browne could be deposed during any one of his trips eastward to lessen the disruption to his schedule and Experian's business. That such an arrangement would mitigate the burden on everyone involved greatly. That a deposition in California will require great advance planning, with counsel’s schedules for those trips, which must be set well ahead of the time of their departure or even greater expense will be incurred.

That he concedes that he does take depositions by telephone with pre-marked exhibits for efficiency, yet in this case that is not a proper or effective manner. That he can display, for the court’s review, a series of examples where depositions involving Experian’s counsel have resulted in the need for Rule 30[d] objections and other “on the record” discussions of improper conduct by Experian’s counsel in defending a deposition. That such problems included many attempts to testify on behalf of Experian, lengthy speaking objections, objections in detail so as to plainly prompt the [Experian] witness, objections made in very loud tones so as to startle the [Experian’s] witness, objections causing the [Experian] witness to parrot in responses, and arm waving and gestures toward the [Experian] witness out of view of the camera in video depositions. That these problems occurred in “in person” non-telephonic depositions of corporate representatives of Experian. That he has not filed these deposition transcripts and videos in the record but will do so if it pleases the court and the court wishes to evaluate these issues.

That he will be placed under some burden and prejudice if required to travel to California for an opportunity to question Browne. That since Browne is the highest ranking professional witness for Experian, it is expected that he intends to again deliver what is tantamount to a “chamber of commerce” style speech. That he and his law firm do not have the luxury of hiring counsels in all of the places where Experian might choose to name a representative to testify as it is conceded that Experian, for reasons quite unclear, has set up its operations in a geographically disparate arrangement. That Experian and its counsel have substantial resources to handle depositions in any state.


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David A. Szwak Page 5 of 6

That the records relevant to these proceedings are located in Texas. That judicial supervision of a California deposition may be difficult.

That Browne travels to Texas and plans to testify in Texas, in December, as part of his job duties with Experian. That Experian’s primary place of business is in Allen, Texas and the records produced in this case were generated there. That Experian’s National Consumer Assistance Center [NCAC] which handled plaintiff’s disputes and record storage and retrieval are all in Allen, Texas.

That Plaintiff also seeks the production of all Administrative reports and 7X reports maintained by defendant which pertain to plaintiff and which pertain to other data files which Experian have continually mixed and blended with plaintiff’s credit data. That these are ordinary business records at Experian although they are maintained in computerized form as opposed to hard copy form. That these reports and the underlying data are kept and maintained [and archived] in the ordinary course of business at Experian and Experian refuses to produce these records absent a court order. That Experian claims that the archived credit data reported to Experian about plaintiff is somehow a trade secret of Experian and warrants confidentiality. That Plaintiff can show that this data is compiled and kept in the ordinary course of business and what Experian really seeks to do is prevent the use of these detailed, archived reports to show a pattern and practice and systemic problem at Experian which would justify the imposition of punitive damages for willfulness. That, as in many other cases, Experian opts instead to defend one case at a time and seek to throw a blanket of confidentiality across all of the credit files in their system, as well as their procedures and policies.

That Plaintiff’s own credit data is not confidential as to plaintiff and her attorneys. That Plaintiff needs to be able to know and show what specific identifiers were reported to Experian by the respective furnishers who have been listed on credit reports Experian published about plaintiff. That, if allowed, Plaintiff will show that furnishers who reported totally different personal identifiers on various accounts had their account reportings misplaced, repeatedly and before and after disputes were lodged by plaintiff, in credit reports and credit files pertaining to plaintiff. That, at one point Experian’s counsel suggested that Experian cannot tell how these accounts were reported in terms of identifiers. That the Admin and 7X reports show exactly how the identifiers were reported via the cross reference table. That the specifics of the cross reference table and the features of the Admin and 7X reports were the subject of a prior motion to compel in which plaintiff, in Carol Mixon v. Equifax, et al, prevailed before Magistrate-Judge McKee. That counsels in Mixon, respectively as to plaintiff and Experian, are the same as this case. That this Honorable Court has previously ordered production of these


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David A. Szwak Page 6 of 6


reports in Mixon. That filed in the Mixon record is a detailed explanation of how the Admin and 7X reports appear and why these reports are important. That he will re-file those papers if it pleases the court. That Experian is trying to stall discovery since delaying and impending deadlines benefit them. That he is also awaiting available dates from Experian’s counsel to depose several employees who actually handled the transactions and events underlying the allegations in the complaint, i.e, plaintiff’s disputes to Experian and the alleged reinvestigations Experian claims it performed.


_______________________________
David A. Szwak

SWORN TO AND SUBSCRIBED BEFORE ME this the 24th day of November, 2003.


_________________________________
NOTARY PUBLIC


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