Protective Order Fights With Credit Bureaus

David A. Szwak

Protective Order Fights With Credit Bureaus

Postby David A. Szwak » Sun Oct 16, 2005 6:28 pm

UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF HAWAII

GARY CISNEROS,

v. Civil Action No. CV03-00200-PK-LEK

TRANS UNION, ET AL

AFFIDAVIT OF David A. Szwak
PARISH OF CADDO
STATE OF LOUISIANA

BEFORE ME, the undersigned Notary Public, personally came and appeared David A. Szwak, who I personally know by appearance, who after being duly sworn, did depose and state, upon personal knowledge, that:

1) I am an attorney licensed by the State of Louisiana since 1991. I am in good standing with the State Bar of Louisiana and have been admitted to practice in state and federal courts of Louisiana, Texas and Arkansas, the Fifth, Eighth and Eleventh Circuits and the United States Supreme Court. I have previously made appearances before numerous federal courts pro hac vice and my representation and conduct have never been questioned or complained about. I am one of the counsels of record for plaintiff in this case.
2) One of my specialties, and that of my law firm, is representing consumers in litigation under the Fair Credit Reporting Act [FCRA] and related laws. In that capacity, I have represented hundreds of consumers and plaintiffs before state and federal courts involving the FCRA and related issues. I have studied the activities of these agencies and have numerous published articles and writings and lectured regarding the FCRA and

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David A. Szwak
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these agencies. I have also testified a number of times regarding these agencies, both acting as an expert for plaintiff-consumers in some cases and for the defense in some cases.
3) I have represented hundreds of consumers in such litigation and have intimate knowledge of the tactics and strategies employed by the three [3] major credit bureaus Experian Information Solutions f/k/a TRW Inc., Trans Union LLC a/k/a Trans Union Corp., and Equifax Credit Information Services, and their various affiliates and subscribers. One of the principle strategies employed by these agencies is to divide and conquer the plaintiffs and their attorneys by making the free flow of information between the attorneys difficult or impossible and by concealing records from the plaintiffs and their attorneys. The principle tactic employed in implementing this strategy is to convince the plaintiff's attorneys to voluntarily enter into a protective order; or, by moving the Court for such a protective order. It has been my experience that none of the agencies' requests for protective orders are warranted under the circumstances. No secretive, confidential or proprietary information is ever disclosed, even after an order is entered. No access codes or methods of harming competition are ever disclosed or even called for.
4) It is vital in this area of litigation to have access to informed and experienced attorneys who are able to assist in the arcane and often encrypted world of credit reporting data. Early in my career I found it extremely difficult to even interpret many of these reports which the agencies had issued on my clients and stored in their archives about my

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David A. Szwak
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clients. Frequently, the court and plaintiff's attorneys are left to accept the story provided by the agency, in each case, due to an inability to gain access to the archived records or to even learn that these records do exist. It is extremely important for attorneys to be able to compare notes, consult with more experienced attorneys and to generally create a sounding board environment in which ideas and experiences may be freely exchanged. It is also important for Plaintiff's attorney to share depositions, since the credit bureaus repeatedly use the same witnesses and records, coincidentally, show the same witnesses' badge numbers as having worked each file involved in litigation. In sum, they suggest these super-employees/deponents handled each dispute and data transaction involved in each case while shielding the identities of low-level, "bull-pen" [a term used by the agencies] employees who actually performed the functions or malfunctions. At every turn the agencies attempt to prevent such a collaborative effort through finely tuned protective orders and other requests for confidentiality in circumstances where it is unwarranted.
5) I am experienced with Experian's Administrative [Admin] Report, Dispute Resolution [D/R] Log, Disclosure Log, and 7X reports, as well as others. My experience is that there is nothing about any of these reports that would endanger a competitive advantage were Trans Union or Equifax to see them. There is nothing about these reports that would assist or aid a competitor in gaining a larger foothold in the industry. In fact, most of these codes are standardized by the industry, as are most of the forms used. These documents appear, to the uninitiated, to simply be spreadsheets with various fields

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David A. Szwak
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of data such as addresses reported, subscriber's names, subscriber identification codes, trade line data, such as date opened, amount, and payment history, inquiry information, such as who inquired, the date of the inquiry and the type of the inquiry, whether some derivative report or otherwise, etc., while other reports show reinvestigation activities, report issuance, detailed handling information, etc. The key distinction between these reports and a basic consumer report is that these reports contain a vast amount of underlying information, historical information, and notes regarding receipt of disputes, reinvestigation efforts, if any, subscriber responses, notes about the reasons data continued to appear, etc. These reports do not in any way display the algorithm or programming that is responsible for formulation, storage or retrieval of the reports. Experian's Administrative [Admin] Report, Dispute Resolution [D/R] Log, Disclosure Log, and 7X reports are but a few of the vital pieces to the puzzle in determining what, if anything, was done to handle disputed data and credit reporting problems. It also shows the trail of computer archived reports and records that form the snapshot by snapshot reconstruction of the plaintiff's consumer credit report and data files. The real reason the agencies refuse to disclose them freely is that they seek to hide the computerized data in each case so as to prevent plaintiffs and their attorneys from understanding what really occurred in each case and being able to understand and glean, for themselves, what occurred in each case.
6) It is my opinion as an attorney specializing in this area of litigation that the protective motion which Experian has filed in this case is utterly unwarranted and solely

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David A. Szwak
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designed to thwart the plaintiff's attorney from getting at the records necessary to handle and evaluate the case and from being able to consult with other attorneys about the case and facts. There is no reason to find that the consumer's data, in various data formats and historical contexts, is proprietary or privileged, in any degree. The issue of the manner in which the agencies choose to defend these cases, on a case-by-case basis, while taking steps to prevent other cases, other testimony and other records from being used or even shared in other cases against them, has taken on great importance.

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David A. Szwak

SWORN TO AND SUBSCRIBED before me, this the _____ day of ________________, 2003.
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NOTARY PUBLIC
MY COMMISSION IS FOR LIFE

David A. Szwak

Postby David A. Szwak » Mon Oct 24, 2005 9:14 am

Protective Order; Depositions of Parties and Non-Parties; Subpoenas; Mixed File Case

James J. O'Connor v. Trans Union Corp., No. 97-4633 [U.S.D.C. E.D. Pa. 5/11/98]
[unpublished, but available on the internet] Father-son mixed/merged file case. FCRA claims asserted. In this ruling, the court granted in part and denied in part TU's Motion for Protective Order. Plaintiff sought production of TU's records regarding its mixed files and TU sought a protective order. Plaintiff deposed Eileen Little at TU. She claimed TU performed tests to ensure proper data matching. Cheryl Jackson is the Data Analyst who knows how these tests are conducted. Bill Stockdale at TU is the QC Manager who compiles records on the outcome of the tests regarding mixed files and other matching process matters. TU moved for a protective order claiming plaintiff should not be allowed to depose Stockdale or Jackson. The court denied the motion as to Jackson. Apparently plaintiff noticed Stockdale's deposition in Pennsylvania. The court noted that Stockdale could be deposed and subpoenaed to appear within 100 miles of his residence. FRCP 45, regarding subpoena power. Stockdale is in Chicago. A subpoena is necessary. Motion granted under the current notice issued for Stockdale.


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