Motion to Compel Testimony of Experian Witnesses and Depos!!

David A. Szwak

Motion to Compel Testimony of Experian Witnesses and Depos!!

Postby David A. Szwak » Sun Oct 16, 2005 11:43 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. JUDGE FOLSOM

MOTION TO COMPEL TESTIMONY OF WITNESSES AND DEPOSITIONS
NOW INTO COURT, through undersigned counsel, comes Plaintiff, who respectfully moves this Honorable Court to compel Gloria Mathews, an employee of Experian, and Rebecca Holt, another employee of Experian, to answer the following questions presented in their depositions which were commenced on December 3, 2003, and to compel the deposition of several other Experian witnesses, and for an order prohibiting speaking objections and other talking sessions by counsel for Experian and for sanctions, as follows:
1.
On December 3, 2003, plaintiff took noticed depositions of Gloria Mathews and Rebecca Holt. Experian’s counsel represented them as they are still employed by Experian. Further, the witnesses refused to answer questions posed to them, as shown on various pages of the transcripts. The questions were certified for purposes of such a motion. The witness failed and refused to answer on advice of her counsel.
2.
A second, independent problem was that the witnesses’ testimonies were interfered with by counsel for Experian. Talking objections, speaking interruptions despite polite requests not to do so, and other antics caused serious problems in the deposition.
3.
Plaintiff respectfully moves to compel the witnesses to answer the questions posed and to further produce the other witnesses requested whose identities have been concealed as addressed in plaintiff’s other motion to compel.
4.
Plaintiff also seeks an order directing counsel for Experian to refrain from further obstructive behavior as is shown in the transcript of the depositions attached hereto and as explained in the memo in support. Plaintiff seeks proper sanctions including payment of costs, fees and other relief the court deems proper.
5.
Plaintiff requests oral argument on this motion, if it pleases the court.
6.
Plaintiff seeks an award of costs and attorneys’ fees incurred in bringing this motion.
WHEREFORE PLAINTIFF PRAYS that this Honorable Court grant this motion and the relief sought herein.
Respectfully submitted,

Bodenheimer, Jones, Szwak

By: ___________________________________
David A. Szwak, La.BR #21157
416 Travis Street, Suite 1404
Shreveport, Louisiana 71101
(318) 424-1400
Fax 221-6555
Counsel for Plaintiff



CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been served upon opposing 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 __________________, 2003.

_________________________________________
OF COUNSEL



CERTIFICATE OF CONFERENCE

I hereby certify that I am counsel of record for plaintiff and I have conferred with opposing counsel in a genuine effort to resolve the issues presented herein and an impasse was reached and I respectfully seek the court’s assistance with the issues presented here.


_________________________________________
DAVID A. Szwak



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. JUDGE FOLSOM

MEMO IN SUPPORT OF MOTION TO COMPEL
TESTIMONY OF WITNESSES AND DEPOSITIONS

MAY IT PLEASE THE COURT:
Plaintiff respectfully moves this Honorable Court to compelling Gloria Mathews and Rebecca Holt to answer the questions presented in their depositions which were commenced on December 3, 2003, and for an Order directing counsel for Experian to comply with the Federal Rules of Civil Procedure regarding the conduct of a deposition in this court, and for an order prohibiting speaking objections and other talking sessions by counsel for Experian, and for sanctions, as follows:
The basic facts of this case are that plaintiff’s credit report has been repeatedly mixed with information which third party subscribers reported about a completely different person. Those subscribers reported personal identifiers, attached to their reporting of credit accounts, of an New Orleans lady named “Cindy Carr,” who is totally unrelated and unconnected to plaintiff. Third parties reported [other person] Carr’s address, social security number and date of birth, all of which are vastly different from plaintiff. Plaintiff contested the errors but the errors persisted. Plaintiff brought suit against Experian, the main database repository and the party who kept publishing the false credit reports. Experian designed the defective credit data matching programs and system for issuing credit reports. Mixed files are a serious systemic problem of the industry though these incidents are well documented. [[As noted by the Eastern District of Pennsylvania, in O’Connor v. Trans Union, No. 97-4633, www.paed.uscourts.gov/documents/opinions/98D1115P.pdf, and www.paed.uscourts.gov/documents/opinions/98D1115P.HTM. Trans Union defined disputes and procedures by type. Mixed files are a well defined problem and issue. Also, see Jensen v. Experian Info. Solutions, Inc., 2001 U.S.Dist.Lexis 15134 [U.S.D.C. E.D. Tex. 2001]. Also, see Holt’s testimony noted, in part, infra, and as further documented in her deposition transcript, attached hereto.]]
On December 3, 2003, plaintiff took noticed depositions of Gloria Mathews and Rebecca Holt, two Experian employees. Experian’s counsel represented them as they are still employed by Experian. The witnesses refused to answer questions posed to them and other matters arose which interfered with the examinations, as shown on various pages as noted in the transcripts. Questions were certified for purposes of such a motion. The witnesses failed and refused to answer on advice of their counsel.
Mrs. Mathews’ Deposition
One such exchange in Mrs. Mathews’ deposition was:
“Q. Okay. Do you handle primarily disputes and other requests for updates or changes to credit reports?
A. We dispute the information on the report for the consumer.
Q. And, ma'am, let me ask you: Have you reviewed any documents before coming here today?
A. Yes.
Q. What type of documents did you review?
MR. MCLOON: Well, I'll instruct the witness not to answer on the grounds that the documents are selected by her counsel, and it would reflect attorney work product.
MR. Szwak: Okay. You're instructing her not to answer the question; is that correct?
MR. MCLOON: Yes.
MR. Szwak: Okay. I'm going to certify my question, ma'am, and ask you again if you'll answer my question.
A. On the advise of the attorney, no.
Q. Okay. Let me ask you: Who have you spoken to before coming to testify to about this case?
A. Before today?
Q. Yes, ma'am.
A. No one, other than the attorney.
Q. Okay. Very good. Let me ask you whether you have reviewed a DR log in this case.
MR. MCLOON: Well, I'll -- again, I'll instruct her not to answer on the grounds that any documents that she reviewed were selected by counsel. I don't object if you ask her whether or not reviewing any documents refreshed her recollection about any events relating to this case, and if the answer to that question were "yes," then I wouldn't object to you asking what the documents were. But –
MR. Szwak: Well, I appreciate your assistance. I'm going to ask her again about whether she reviewed a DR log, and if she's not going to answer the question, I'm going to certify it as well.
MR. MCLOON: Okay. Fine. Yes.
MR. Szwak: Okay.
MR. MCLOON: The witness has testified, and I'm representing that the witnesses was shown documents selected by counsel, and it's not appropriate for you to inquire as to which documents that I selected to show her. It's my work product. So, on that basis, I'm instructing her not to answer.
MR. Szwak: So noted.” Pages 4-6, Mathews depo.
Next:
“Q. Well, I'm trying to get an understanding of -- of the reinvestigation process from you. And I understand that the first step that you take is to tell the consumer, if they send you a dispute by mail or if they call you by phone or by some other means contact you with a dispute, you tell, Okay. We're going to reverify this with the creditor that you're complaining about, right?
A. Yes.
Q. Now, what is the next thing that you do in the process?
MR. MCLOON: Asked and answered.
Q. Ma'am, you may answer.
A. Okay. I -- I thought I already answered that, but after we've contacted the creditors, then we notify the consumer to let them know what the results were.
Q. Okay. Well, let me -- let me see if we can break it down a little more than that as a second step. After you tell the consumer you're going to reverify, do you pull up a copy of their -- their credit file on your computer?
A. When the consumer calls, the file -- we automatically pull up the file then. They have to give us the information to pull up their file.” Page 12, Mathews depo.
Next:
“Q. Okay. And what -- tell me, what date did this happen? I mean, what date did you actually handle some transaction involving her credit report?
MR. MCLOON: Objection. Are you asking her whether she remembers or what it says on the document?
MR. Szwak: I'm asking her questions, and I'd appreciate it if you'd just object to the form, please.
MR. MCLOON: Well, I didn't understand the question, so I didn't know whether I have an objection. So I guess I'll just object to form because you won't explain it to me.
MR. Szwak: If they understand any question.
MR. MCLOON: All right. Could we have the question repeated or reread?
MR. Szwak: Absolutely.
(Record read)
MR. MCLOON: Objection, form.
A. I don't know.
Q. Okay. Well, do you know from reading this document whether -- whether there's a date on it showing that you did some handling of her credit file?
A. Yes.” P.19, Mathews depo.
Next:
“Q. And I'd like to get you to look at Exhibit No. 1, ma'am.
MR. MCLOON: What date is that report?
THE REPORTER: October 25, 1999.
MR. MCLOON: Thank you.
THE REPORTER: 2 and 3 are in there too, behind it.
MR. MCLOON: Okay. This is a -- a 30-page document. Do you want her to look at all 30
pages? What do you want her to do?
MR. Szwak: Well, I'll ask her in a second.
MR. MCLOON: She has the document in front of her.
Q. -- the document in front of you? Ma'am --
A. Yes?
Q. -- tell me, generally, does this appear to be an Experian credit report, I mean, in format?
A. Yes.” pp.30-31, Mathews depo.
Next:
“Q. Okay. As you look at -- at Exhibit No. 1, and let me -- let me get you to go ahead and spend a few minutes –
MR. Szwak: Let's go off the record.
Q. I'd like you to have a few minutes to review the entire document. And when you get through reviewing it, if you'll tell the court reporter, and we'll go back on the record.
MR. MCLOON: Well, what -- for what purpose are you -- are you asking her to do this? What should she be looking for?
MR. Szwak: I'd like her to review the document, and then I'm going to ask her some questions.
MR. MCLOON: Are you asking her to read every word on this document? That will take, probably, an hour or two. What are you asking her to do, David?
MR. Szwak: I just did, Dan. I asked her to review the document.
MR. MCLOON: I -- I'm going to instruct her not to do that, because I have no idea what -- are we supposed go off for an hour and a half? What do you want us to do?
MR. Szwak: I -- I'm not here to -- to educate you on what I'm doing in a deposition. I'm –
MR. MCLOON: All right. Well, then I'm instructing her not to do it until you give a -- a decent instruction as to what she's -- this is a 30-page document. What do you want her to do with 30 pages, read every word? Glance at every page?
MR. Szwak: I'd like her to do that, please.
MR. MCLOON: To do what?
MR. Szwak: Review the document.
MR. MCLOON: Okay. I'm going to instruct her not to do that unless you give her a better instruction. Are you asking her to read every word, or are you asking her to glance at every page? If you don't give her a better instruction, I'm not going to permit her to do it.
*****
MR. Szwak: Very good. Let's attach Exhibit No. 1 as the exhibit you've refused -- refused to review.
MR. MCLOON: Well, okay, David, we're going off the record. And I'm going to instruct the witness to read every single word on this document. So we're going off the record, and she's going to read every word. Why don't you come back in two hours.
MR. Szwak: Well, if she wants to sit there and read it in the presence of the court reporter for two hours –
MR. MCLOON: Well, David, the point is, we don't know what you're asking her to do. I'm more than happy to cooperate with you. If you want her to glance at every page, she's –
MR. Szwak: Pardon me, Dan, just for a minute.
MR. MCLOON: No. Excuse me. Let me finish and then you can speak.
MR. Szwak: On the record, Dan, so that we get this all straight –
MR. MCLOON: We are on the record.
MR. Szwak: -- about what's being said.
MR. MCLOON: We are on the record. And if you'd let me speak, I'm going to make my point on the record. This is a 30-page document. You're asking her to review it. And I want a clear -- clear instruction to her as to what you want her to do. Do you want her to read every word on the document? I think you're refusing to answer that question.
MR. Szwak: I –
MR. MCLOON: Do you want -- do you want her to glance at every page briefly? You're refusing to give her that kind of instruction. If you will give her a specific instruction as to what you want her to do, I'll be happy to have her do it. But you're just using the word "review," which is meaningless. And so she doesn't know what to do, and I'm not going to let her -- her just sit here and do something that's so amorphous that no one will ever be able to figure out, after the fact, supposedly what she did. So if you give her a clear instruction, Please just glance briefly at every page, I'll permit her to do that. If you ask her to read every word, I'll permit her to do that too, but it's going to take a long time. So I'm just not going to have the record be unclear as to what is the nature of -- of the function that you're asking her to do right now. If -- and -- and you're refusing to her a clear instruction. And I want the record to show, if you give her a clear instruction, whatever it is, I intend to permit her to do it. What I don't permit is -- is for her to do something that, after the fact, no one will be able to figure out what she did. So you can respond in any way you want now.
MR. Szwak: Well, your objection is noted.
Q. Ma'am, go ahead and review the document, and we'll be ready to ask you some questions about it whenever you're finished.
MR. MCLOON: Okay. Are you have refusing to give her more instructions than just the single word "review"?
MR. Szwak: Mr. McLoon, I've said what I've got to say about it.
MR. MCLOON: Okay. And I instruct her not to do it.
MR. Szwak: Well, very good, ma'am. Let's go ahead and attach Exhibit No. 1.
(Exhibit No. 1 admitted)
Q. And, ma'am, I'm understanding that you are following the instruction of your attorney. We've certified our request of you; is that correct?
A. Yes.
Q. Okay. Very good. Let me ask you if you would review Exhibit No. 10, please.
MR. MCLOON: For the record, this is a two-page document.” Pp.33-39, Mathews depo.
Next:
“Q.......But I really do need you to tell me, if you know what your pay rate was when you first began with TRW.
A. I don't remember.
Q. Can you tell me what your current pay rate is?
A. I don't think that I should have to tell you that, because that is my personal business.
Q. Well, ma'am. I -- I'm sorry. But I'm going to have to ask you, if you would, please, to answer the question.
MR. MCLOON: The -- the witness is asserting a privacy right. I -- I'd be happy to meet and confer with you off the record on the topic.
MR. Szwak: I'm not interested in that, Mr. McLoon. I'd like the witness to answer my question. And there's no privacy issue at stake here.
MR. MCLOON: Well, she apparently thinks that there is, and she said so. So –
MR. Szwak: Well –
MR. MCLOON: -- I think the record will reflect that the witness has declined to answer the question on the grounds that she considers it private.
MR. Szwak: Okay.
Q. Ma'am, I'm going to certify my question and ask you if you will answer my question, please. Ma'am?
A. Yes?
MR. MCLOON: She's thinking. Again, I'd suggest we take a break. I'd like to–
MR. Szwak: No. We've got a question pending.
MR. MCLOON: Well, I -- I understand. Okay. I think the record reflects -- and you can sit here for another hour. I've been asking for a break for some time now.
MR. Szwak: Mr. McLoon, I have a question pending.
MR. MCLOON: The record reflects that Mr. Szwak. You don't have to say it. It's already there in the record. It -- and I'm making the statement that the record will reflect that the question has been posed, and the witness has declined to answer it. And I'm now asking for a break.
MR. Szwak: Well, we'll wait until after I hear her tell me that she's not going to answer the question.
A. I'm not going to answer that question.
Q. Okay.
MR. Szwak: Well, we can take a break and then we'll come back. How long would you like, Dan?
MR. MCLOON: Well, why don't we take 10 minutes.” PP.56-60, Mathews depo.
Yet, during Mr. McLoon’s examination of Mathews, he had her review Exhibit 1!
Mrs. Mathews keyed off of Mr. McLoon’s objections and parroted. She would state that she did not understand the simple questions or that she needed then questions re-read or that she did not know the answers [repeatedly]. [[See pages 16,18,19,20,22,23[twice], 24,25,27,29,30[twice],31,43,44,45,48,50,51,56,57,65,67,68. Mathews depo. At one point she proclaims a privacy right not to disclose her pay rate. Cost considerations are but one factor in assessing reasonableness.]]
In the Rebecca Holt deposition, there were more obstructions and refusals to answer and directions not to answer. First:
“Q. Let me ask you: Have you reviewed any of the documents from this case?
A. Yes, sir.
Q. And were you able to locate your badge number on any of those documents?
MR. MCLOON: Okay. I'm going to object on the same grounds as I did in the prior deposition, which is that documents that Ms. Holt reviewed were selected by counsel, and identifying which particular documents counsel disclosed to the witness would reflect counsel's work product. I would not object to the question, Did looking at any documents refresh her recollection, and if the answer to that question is "yes," then she may identify those documents. But beyond that, I would instruct you not to answer the question as it was posed.
MR. Szwak: Okay. I'll certify my question, ma'am.
Q. Can you answer it?
A. Could you rerepeat it, please?
Q. Yes, ma'am.
MR. Szwak: Miss Court Reporter, would you read it back, please.
(Record read)
MR. MCLOON: I direct the witness not to answer that question on the grounds previously stated.
Q. Ma'am, can you tell me, what is your Experian badge number?
A. My badge number is B as in boy, Z as in zebra, 017899.” pp.2-3, Holt deposition.
Next:
“Q. You're familiar with one category of mixed files that occur in the Experian system that involve a consumer that has the same or a similar first name and a Social Security number that's either seven of nine digits or eight of nine digits similar to the other consumer, correct?
MR. MCLOON: Objection, form.
A. That could be correct.
Q. Okay. Well, let me ask you: Is it, in fact, a scenario that arises at Experian where consumers complain, and you ultimately determine that that is one scenario that's a known issue?
MR. MCLOON: Objection, form.
A. Again, it would depend on, at that time, viewing the file, what I saw on the report, how the consumer responds to me on the phone about what the problem is. I mean, other than that, I would just be guessing. It's all a -- a guess game until the consumer gives us information.
Q. Well, let me ask you, in your experience in working at Experian for eight years you've seen this scenario come up time and time again, correct?
MR. MCLOON: Objection, form.
A. I deal with it, yes, on a –
Q. Now --
A. All the time.
Q. Correct. I mean, this is not an uncommon scenario that would shock you if I told you that Ms. Comeaux, the plaintiff in this case, is complaining that her credit file has been intertwined with a lady named Cindy Carr, that they live in different states, certainly different addresses, are unrelated, they have Social Security numbers that appear to be one digit off from each other –
MR. MCLOON: Are you testifying now?
MR. Szwak: I'm asking a question, Mr. McLoon.
MR. MCLOON: Where's the question?
MR. Szwak: I'd appreciate just an objection to the form like you're required.
MR. MCLOON: Well, I objected to you making factual speeches to the witness that I think are inaccurate, and I didn't hear a question. What was the question?
MR. Szwak: Well, if you have an objection, and you feel like something's inaccurate, you can make an objection to the form. Ma'am -- Madame Court Reporter, could you read my question back again, and I'll try to complete it this time.
(Record read).
Q. And then my closing question is: That wouldn't surprise you, would it?
MR. MCLOON: Objection, form.
A. It could be a typo; it could be anything. I mean, as far as asking me if it's a surprise --
Q. Well, it's a scenario that you're not in shock to hear that might exist, correct?
MR. MCLOON: Objection, form.
A. If the consumer tells us specifically they think their file is mixed, then we go to working the file as mixed, or --- and we go through the entire report with the consumer over the phone.” pp.11-14, Holt deposition.
Next:
“Q. This is my specific question: If I were to tell you and ask you to assume for a moment that the plaintiff is named Cindy Comeaux, she lives in Dallas, she has a different date of birth and a different Social Security number by one digit on the Social as opposed to a lady who lives in New Orleans named Cindy Carr, it would not surprise you, and, in fact, you have seen similar scenarios in your work at Experian where such an event occurs, where there's a similar first name, though spelled differently, and a Social that's within seven of nine digits of each other, correct?
MR. MCLOON: Okay. I object more than just form. This is not an expert witness.
MR. Szwak: Okay.
MR. MCLOON: This is an improper way to examine a fact witness. So I object.
MR. Szwak: Your -- your objection of the form is noted.
MR. MCLOON: Well, it's more than just form. It's: How are you wasting my time when I should be preparing for a trial. This is not an expert witness. You should not be questioning this witness as if she was here to give opinion testimony. She's a fact witness to testify about the facts she knows of her personal knowledge. That question is not the right kind of question to this kind of witness. And my objection –
MR. Szwak: Well, we appreciate your objection. I'd like an answer from the witness, please.
A. I would not assume it's mixed, no, sir.
Q. No, ma'am. That's not what I asked you.
MR. Szwak: Miss Court Reporter, could you read back my question. I'm sure that she may have forgotten what I asked her.
MR. MCLOON: It begins with a hypothetical, and that's why I think it's an improper form of questioning.
MR. Szwak: Okay. Thank you.
(Record read).
MR. MCLOON: Okay. If -- if we cut off all of the hypothetical and just pose the last question, I don't object to it.
MR. Szwak: I appreciate your objection to the form. The question's been read back to the witness, and I'd like her to answer it, please.
A. I'm thinking, just one moment. I could assume that it could be correct. I honestly don't know.” pp. 15-17, Holt deposition.
Next:
“Q. But, I mean, certainly, if it -- if it were mixed, that would be a procedure that would immediately obtain a resolution of the problem for the consumer, right?
A. If this were mixed, yes.
Q. Okay. Now, I'm assuming that before coming to the deposition today, you have not reviewed Ms. Comeaux's credit reports; is that correct?
MR. MCLOON: Well, again, the question of what documents she reviewed were selected by counsel, and -- and I've made my position clear, that if -- if she's looked at anything that's refreshed her recollection, I don't have any problem with you asking that question. But asking her to identify which documents counsel selected to show her would disclose our work product. So in that form, I'd instruct her not to answer.
Q. Well, if there's something that is -- that are notes between the attorney or some mental impressions on his part, I wouldn't expect you to tell me about that, ma'am. I'm interested to know what credit reports, letters or D/R logs, administrative reports, 7X reports, disclosure logs, any internal notes in the super CASS system that you've reviewed before coming here today.
MR. MCLOON: And, again, the point is not that there are notes that disclose the attorneys' thought process. It is the act of culling out particular documents that the attorney thinks that is significant and showing those documents to a witness that reflect the work product. If, by doing that, it has some impact on the witness's factual testimony, you have a right to know it. And I'm not objecting to that. But if -- if the only purpose is to find out which documents counsel thought were important, that's getting at work product. And so I don't permit her to answer questions that really are just designed to show which documents counsel thought were important enough to show her. And that's why I'm objecting and instructing her not to answer that question as posed.
MR. Szwak: I'll certify my question, ma'am.
Q. Can you tell me if you'll answer my question?
MR. MCLOON: I instruct you not to.
A. No, sir.
Q. Okay. Thank you very much, Ms. Holt. Now, I want to ask you if you can take a look at -- just one second, I'm trying to pinpoint -- Exhibit No. 5, please.” pp.19-20, Holt depo.
Next:
“ Q. Well, let me ask you: Why -- and I guess this -- this is a -- a question that would naturally flow: Why would there need to be a consumer dispute verification process at all if you know that the identifiers on the specific account differ from the person who's communicating the dispute?
MR. MCLOON: Okay. This is a perfect example of an improper question.
MR. Szwak: -- talking again.
MR. MCLOON: I -- I -- I am making an objection.
MR. Szwak: -- perfectly clear that you can say, "Object to the form, and that's it.
MR. MCLOON: Okay. Your Honor, when a judge runless you're correct, but you're not the judge in this case. And my objection is, you're wasting my time.
MR. Szwak: -- 30 --
MR. MCLOON: Excuse me. You're wasting my time by posing opinion questions to a witness who is not an expert witness, who hasn't been designated as an expert witness. You've established no foundational fact to – to have any reason to suspect that -- that it was part of her job to form those kinds of opinions. So this is using a fact witness to try to make her into an expert. And it's improper, and I object.
MR. Szwak: Well, again, your objection is noted. And Madame Court Reporter, please read back my question.
(Record read). PP.33-35, Holt depo.”
Next:
“Q. Yes, ma'am. And I understand. And what I'm asking you about is your understanding today as you look at Exhibit 1 and Exhibit 17.
MR. MCLOON: Well, her understanding about what? Are you telling her she should assume this is a mixed file case?
MR. Szwak: I don't know what the problem is, but I would appreciate if you only object to the form, and that's perfectly remedies any issue that you've got. And let me ask her the questions.
MR. MCLOON: Okay. No. The problem is you're wasting my time.
MR. Szwak: Well, I appreciate –
MR. MCLOON: That has nothing do with form. It has to do with your intention. My belief is, for the record, you are trying to waste my time because you know I should be preparing for a trial in another one of your cases. So that has nothing to do with the form of the question. It has to do with how you're abusing this process. This is a –
MR. Szwak: Mr. McLoon, if you want to get the judge on the phone and take it up with him and let him read the transcript thus far –
MR. MCLOON: I think the judge expects you and I to work these issues through. And you and I can't work these issues through unless I tell what you my problem is with how you're conducting it. If all I say is "objection, form," you –
MR. Szwak: Mr. McLoon, that's what the Federal Rules provide for –
MR. MCLOON: Excuse me. Excuse me.
MR. Szwak: Case law specifically in the Eastern District of Texas.
MR. MCLOON: I -- I -- I appreciate you serving as my counsel. But my point to you is, I believe the courts expect you and I to work these problems out ourselves, and that's what I'm trying to do. And I'm trying to do it by telling you why I object to the manner of your questioning as opposed to a particular form on a particular question. This is a fact witness.
MR. Szwak: Well, I appreciate your concerns and your need to try to cut me off, but I'm going to ask the question again and get the court reporter to read it back.
MR. MCLOON: Well, that's fine, and you'll do it for a certain amount of time and I'll stop it. So you're on notice –
MR. Szwak: No.
MR. MCLOON: -- that I'm objecting to your waste of my time for what I believe to be the ulterior purpose of preventing me from preparing for another trial.
MR. Szwak: Okay. Well, that's your, and that's your opinion. Let's read the question back, Madame Court Reporter. Sorry we're having to do it again.
(Record read)
MR. MCLOON: Objection, form.
A. Honestly, at the time, it's not something that I would jump to the conclusion on, no.
Q. Okay. What about today as, you read them today?
MR. MCLOON: Objection, form, and the same objection I articulated a few minutes ago.
Q. You can answer, ma'am.
A. Again, just because there's a slight variation in the Social, no, I would not jump to the conclusion that it's a mixed file.
Q. Okay. And the fact that there are a number of -- of names that are listed, both on the Social search report and on the file itself, would not be any type of indication of that possibility, correct?
MR. MCLOON: Objection to form, and objection on the same grounds I articulated a few moments ago.
A. Could have been a previous name, maiden name, married name, no, sir.
Q. But when you handled this particular file, you didn't contact Ms. Comeaux or ask her to supply you that information. Is that true?
A. Well, it looks like she contacted us. We don't contact the consumer. And from what I can tell, she stipulated that she was a victim. That's why I sent the paragraphs out to her along with the full report, so she could, at that point, let us know if there was a problem.” pp.40-43, Holt depo.

Plaintiff has attached the deposition transcriptions obtained on an expedited basis for purposes of this motion. The record reflects numerous “objections to form” during cross-examination of the witnesses. These prompting objections as well as other obstructions and commentary were improper and caused tremendous interference in the depositions.
This second, independent problem was that the witnesses’ testimonies were interfered with by counsel for Experian. Talking objections, speaking interruptions despite polite requests not to do so, and other antics caused serious problems in the deposition.
Plaintiff respectfully moves to compel the witnesses to answer the questions posed and to further produce the other witnesses requested whose identities have been concealed as addressed in plaintiff’s other motion to compel.
Plaintiff also seeks an order directing counsel for Experian to refrain from further obstructive behavior as is shown in the transcripts of the depositions attached hereto and as explained in the memo in support. Costs and sanctions should be granted.
Plaintiff also seeks an order prohibiting Experian’s counsel from interposing speaking objections and other talking sessions which are designed to lead the witness and cause the witness to parrot the objections in the response or otherwise evade the question or to generally otherwise undermine the discovery and deposition process. Speaking objections are prohibited. Collins v. International Dairy Queen, 1998 U.S. Dist. Lexis 8254 [U.S.D.C. M.D. Ga. 1998]; Applied Telematics v. Sprint Corp., 1995 U.S. Dist. Lexis 2191 [U.S.D.C. E.D. Pa. 1995]; Unique Concepts, Inc. v. Brown, 115 F.R.D. 292 [U.S.D.C. S.D. N.Y. 1987]; Brignoli v. Balch, Hardy & Scheinman, Inc., 126 F.R.D. 462, 466 [U.S.D.C. S.D. N.Y. 1989].
The court in Phillips v. Manufacturers Hanover Trust Co., 1994 U.S. Dist. Lexis 3748 [U.S.D.C. S.D. N.Y. 1994], [[Also noting the deponent’s obligation to provide an adequate number of witnesses to respond to the notice.]] held that “Since Ms. Berti may have acted under a misapprehension as to her role at the deposition, I emphasize that it is not counsel's place to interrupt if a question is perceived to be potentially unclear to the witness. Rather, the witness should make the determination as to whether a question is clear and answer to the best of his or her ability. See Hall v. Clifton Precision, A Division of Litton Systems, Inc., 150 F.R.D. 525, 530 n.10 [E.D. Pa. 1993] ["If [a] witness needs clarification, the witness may ask the deposing lawyer for clarification. A lawyer's purported lack of understanding is not a proper reason to interrupt a deposition."].”
The court in Wilson v. Sundstrand Corp., 2003 U.S.Dist.Lexis 14922 [U.S.D.C. N.D. Ill. 2003], [[The same litigation spawned a second decision addressing this issue at: 2003 U.S. Dist. Lexis 14356.]] recently held that “Federal Rule of Civil Procedure 30[d][1] plainly prohibits "speaking" objections by providing that "any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner." Just the other day, the Court sanctioned Sundstrand due in part to its attorney's repeated, prolonged, and successful effort to coach a witness, Deborah Pederslie, through improper speaking objections. See Wilson v. Sundstrand Corp., 2003 U.S. Dist. Lexis 14356, *43, Nos. 99 C 6944 & 99 C 6946 [N.D. Ill. Aug. 18, 2003].”
Directing a witness not to answer, as occurred in this case, was improper. Rule 30[d][1] provides, in pertinent part, as follows: "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph [3]." Paragraph [3] is the provision which provides for a motion for protection against conducting a deposition in bad faith or in a manner than is designed to unreasonably annoy, embarrass or oppress the deponent.
A party may object to an irrelevant line of question, but instructing a witness not to answer a question because it calls for inadmissable facts is sanctionable. Boyd v. University of Maryland Medical Systems, 173 F.R.D. 143, 144, 149 [U.S.D.C. Md. 1997]. However, counsel should avoid the prohibited practice of engaging in so-called Rambo tactics where counsel attacks or objects to every question posed, thus interfering with, or even preventing, the elicitation of any meaningful testimony and disrupting the orderly flow of the deposition. American Directory Service Agency, Inc. v. Beam, 131 F.R.D. 15, 18-19 [U.S.D.C. D.C. 1990].
The purported irrelevancy of a question is not grounds to instruct a witness not to answer the question. Fed.R.Civ.Proc. 30[c]; International Union of Elec., Radio and Mach. Workers, AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277, 279 [U.S.D.C. D.C. 1981]; Preyer v. U.S. Lines, Inc., 64 F.R.D. 430 [U.S.D.C. Pa. 1973]. This is so unless and until the pervasive or other nature of the questioning makes it obvious that it is necessary to stop the deposition and seek relief under Rule 30[d][3] for being conducted in a manner evidencing bad faith, or to embarrass, annoy, or oppress the deponent. The mere fact that more than one alleged irrelevant question is asked, or even that a series of alleged irrelevant questions are asked does not, by itself, constitute annoyance or oppression contemplated by [30][d][3]. "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph [3].” [emphasis added]. Fed.R.Civ.Proc. Rule 30[d][1].
Plaintiff requests oral argument on this motion, if it pleases the court.
Plaintiff also seeks an award of costs and attorneys’ fees incurred in bringing this motion. Plaintiff asks the court to fashion proper relief in this matter.
Respectfully submitted,

Bodenheimer, Jones, Szwak


By: ___________________________________
David A. Szwak, La.BR #21157
416 Travis Street, Suite 1404
Shreveport, Louisiana 71101
(318) 424-1400
Fax 221-6555
Counsel for Plaintiff


CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been served upon opposing 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 __________________, 2003.

_________________________________________
OF COUNSEL








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


CYNTHIA COMEAUX,
Plaintiff,
Versus Ciivil Action No.
2-02CV0304

EXPERIAN INFORMATION SOLUTIONS, JURY DEMANDED,
Defendant. JUDGE FOLSOM


ORDER

CONSIDERING THE FOREGOING MOTION:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT Plaintiff’s motion is GRANTED and Experian is directed to produce proper, sworn, complete responses to plaintiff’s discovery and to compel the identities of witnesses and their deposition and for sanctions. Furthermore, the numerous objections asserted by Experian to these discovery devices are stricken from record.
Texarkana, Texas, this _______ day of _______ 2003.

_____________________________________
J U D G E

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