Names, Types, Descriptions, Testimony
David A. Szwak


Postby David A. Szwak » Wed Nov 09, 2005 8:30 pm


4 Plaintiff, *
5 VS. * NO. 00-CV-0040
7 Defendant. *


9 *********************************************************


11 AUGUST 16, 2000


13 *********************************************************




17 witness duly sworn by me at the instance of the Plaintiff,

18 taken in the above-styled and -numbered cause on the 16th

19 day of August, 2000, A.D., beginning at 9:54 a.m. to 2:29

20 p.m., before LISA C. HUNDT, a Certified Shorthand Reporter

21 in and for the State of Texas, reported by machine

22 shorthand, in the offices of Jones, Day, Reavis & Pogue,

23 located at 2727 North Harwood, Dallas, Texas, in accordance

24 with the Federal Rules of Civil Procedure and the

25 agreements hereinafter set forth.

Daniel J. McLoon
Dan McLoon
Daniel McLoon
Dan J. McLoon

1 P R O C E E D I N G S

2 THE VIDEOGRAPHER: This is the videotaped

3 deposition of Carolyn Helm, taken by the plaintiff in the

4 matter of James Jensen v. Experian Information Solutions,

5 Incorporated, Civil Action No. 00-CV-0040 held at Jones,

6 Day, Reavis & Pogue located at 2727 North Harwood, Dallas,

7 Texas.

8 Today is August 16, 2000. The time is 9:54 a.m.

9 The videographer is Victor Barlow, and the court reporter

10 is Lisa Hundt, for Esquire Deposition Services, Dallas,

11 Texas.

12 Counsel present will please identify themselves

13 and state their agreements after which the court reporter

14 will swear the witness.

15 MR. Szwak: David Szwak for the plaintiffs.

16 MR. FARLOW: Brian -- sorry.

17 MS. JENSEN: Susan Jensen for plaintiff.

18 MR. FARLOW: Brian Farlow for Experian

19 Information Solutions.

20 MR. Szwak: I don't believe there are any

21 stipulations. Just under the Eastern District Rules.

22 MR. FARLOW: That's fine.


24 having been first duly sworn, testified as follows:


1 BY MR. Szwak:

20 Q. Are you at all familiar with the use of a quota

21 system at the call center?

22 A. We do have a production system.

23 Q. Are you familiar with the employee incentive plan?

24 A. Yes.

David A. Szwak

Postby David A. Szwak » Thu Nov 10, 2005 10:02 pm

1 Q. Ma'am, I'm going to assume that you don't remember
2 Mr. Carriere at all, right?
3 A. I don't.
4 Q. Other than what you're looking at here in this log?
5 A. That's correct.
6 Q. And you could -- let me ask you this: Do you have
7 some recollection of what Experian's policies and procedures
8 were last year?
9 A. No.
10 Q. I stand corrected. I believe you only worked one
11 cycle of Mr. Carriere's disputes. Do you have a production
12 statistic at Experian in your job?
13 A. We do have a production.
14 Q. And do you know -- how many different consumers are
15 you required to handle in a given hour or a given day?
16 A. There's not -- it's averaged over a month, over a
17 month.
18 Q. Do you know how many you're required to handle in a
19 given month?
20 A. No, it has to average out. Our AC does that, our
21 supervisor.
22 Q. So they keep a count on how many different consumers
23 you handle in a given month; is that true?
24 A. Right.
25 Q. And then they average that out over however many

1 days there are in a month; is that true?
2 A. Yes, however they do it. I don't know what their
3 process is but...
4 Q. Have you ever had any months where you didn't meet
5 that production statistic?
6 A. I don't remember, but, no.
7 Q. Now, there's also a quality statistic that's
8 maintained. You have to meet compliance with procedures and
9 policies, correct?
10 A. Right, uh-huh.
11 Q. That's a different statistic, correct?
12 A. Correct, that's two different ones.

David A. Szwak


Postby David A. Szwak » Thu Nov 10, 2005 11:24 pm

6 Q. Do you know: What is your production statistic on a
7 daily basis or hourly basis at Experian?
8 A. My personal statistics or required?
9 Q. Yes, ma'am, what is required.
10 A. Required, 95 percent production per month. It's not
11 on a daily basis.

12 Q. Now, when you say 95 percent, how do you calculate
13 whether you're meeting that production requirement or not?
14 A. The amount of work that's performed each day.
15 Q. And do you know how many different consumers you're
16 required to handle in a given time interval, whether it be per
17 minute, per hour, per day?
18 A. No. I don't know a total number because of the
19 variations in the things that you do.

20 Q. Is there no set number of consumers that you're
21 required to handle in a given day?
22 A. No, not number of people.
23 Q. Is there any other statistical marker on a daily
24 basis that you're required to meet?
25 A. No.

1 Q. What about on a monthly or weekly basis, is there
2 any other statistical marker that you're required to meet?
3 MR. McLOON: Asked and answered.
4 A. When -- are you asking me about the total --
5 reaching the 95 percent production, is that what you're asking?
6 Q. Yes, ma'am. Assuming that that's the only statistic
7 marker that's being used, I'm trying to figure out --
8 A. Is production the only thing that we have to account
9 for?
10 Q. Yes, ma'am.
11 A. No, it's not.
12 Q. You have a quality component to your job?
13 A. Yes.

14 Q. And so there's a quality component, but there's also
15 a production or number component that you must reach?
16 A. Yes.

17 Q. Do you know anything about how that production
18 component is set?
19 A. How it's calculated?
20 Q. Or how it's set. I'm assuming Experian sets a
21 certain production requirement on your part.
22 A. Yes.

23 Q. In essence, you can't come to work tomorrow and just
24 handle one consumer all day long, right?
25 A. That's right. That's the 95 percent that I just

1 said about.
2 Q. Okay. And when you talk about 95 percent, is there
3 a certain number of projects that you must handle?
4 A. I'm sure there is, but I can't tell you what the
5 total number of projects you would have to handle to get
6 95 percent is.
7 Q. Is there a financial incentive for you in terms of a
8 bonus or commission or some benefit if you meet your statistic?
9 A. No, not for just meeting the statistic.
10 Q. Not for just meeting the statistic, you must meet or
11 exceed it?
12 A. I don't remember the exact figures and qualities
13 that you have for receiving a bonus.
14 Q. But to your knowledge, you personally don't know
15 about any production requirement that you have on a daily
16 basis; is that true?
17 MR. McLOON: Asked and answered.
18 A. It's not on a daily basis.
19 Q. Yes, ma'am.
20 A. My -- to me and my supervisor, it's by the end of
21 the month the quality has to be, so for a daily, I don't know
22 what I need. I look forward to the end of the month for the
23 quality.
24 Q. Is it true that your employer, Experian, judges the
25 quality of your work based upon what you've handled, in

1 essence, they look at specific matters you've handled to make
2 sure that you've complied with their rules, and that's a
3 qualitative component -- and that's a quality component; is
4 that true?
5 A. I'm sorry, I don't understand your question.
6 Q. Yes, ma'am. We talked about this production
7 statistic of 95 percent.
8 A. Okay.
9 Q. And one aspect of that is the quality of your
10 work --
11 A. Okay.
12 Q. -- how good you're doing --
13 A. Sure.
14 Q. -- at the work you are doing. Okay?
15 A. Yes.
16 Q. And that's one way they judge, is based upon your
17 compliance with their stated policies and procedures in terms
18 of quality.
19 A. Yes.

20 Q. Okay. Now, just like if you were to build a car, if
21 you're building it correctly, the work you are doing, that's a
22 quality issue, but is there a quantitative issue about how much
23 work you're doing? If you only handled one project, but you
24 did a really, really good job, that would be very quality but
25 not much quantity.

1 Do you follow me?
2 A. Okay.
3 Q. Do you know if there's a quantitative component to
4 your job that's required?
5 A. Now, I think I've -- I'm not sure if I've answered
6 your -- I've gotten quality and quantity like maybe confused.
7 Quality 95, quantity 95, and your question you just asked me
8 now, did you just ask me if they actually look at the work that
9 I've done to be sure that I've done it right, that's how they
10 come up with whether I have done it right or not?

11 Q. Well, I think you've made a good point. Let's split
12 the two out now.
13 A. Yes.
14 Q. If you have a quality requirement of 95 percent,
15 that means of the work that you did do, they request that you
16 meet their procedures 95 percent of the time. Is that fair to
17 say?
18 A. Yes.
19 Q. In essence, if you're going to build a car and
20 you've got a 95 percent quality requirement, they want you to
21 build the car right 95 percent of the time or better.
22 MR. McLOON: Objection, this is a
23 hypothetical. It's improper to pose a hypothetical, and it's
24 argumentative.
25 A. I'm getting confused.

1 Q. Okay.
2 MR. McLOON: We're not talking about cars
3 here. We're talking about credit reports.
4 Q. I think that's pretty analogous, but let me ask you
5 about the quantitative component.
6 MR. McLOON: But that's argumentative. Save
7 it for trial.
8 Q. I want to ask you again about the quantitative
9 component, the number of projects. Is there a number of
10 projects that you're required to do in any set given period of
11 time?
12 MR. McLOON: She's answered this before. You
13 may answer it again.
14 A. We are required to have 95 percent production.
15 That's what I'm familiar with calling it, production, and it is
16 done based on at the end of the month.
17 Q. Do you know how they calculate that at the end of
18 the month, the 95 percent number?

19 MR. McLOON: She's already testified about
20 this. This is asked and answered. Do it again.
21 MR. Szwak: I'm sorry, we split this issue
22 out, quality versus quantity, and now she's told me it's 95
23 percent at the end of the month. I just want to know if she
24 knows how they calculate the 95 percent.
25 MR. McLOON: I think she testified before,

1 but go ahead.
2 A. The total amount of work that you do per day or per
3 month is calculated with points given for the different things
4 that you do, and you come up with a total, and that's how you
5 get the 95 percent.

6 Q. You don't know the mechanics of that formula; is
7 that true?
8 A. No, I don't.

9 Q. You just know it to be a percentage and you either
10 meet or exceed the percentage?
11 A. Yes.

12 Q. To your knowledge, you've never failed to meet your
13 quantitative component, correct?
14 A. I have.
15 Q. You have. What did they do when you failed to meet
16 your quantitative component?
17 A. My supervisor had a meeting with me.
18 Q. Okay. Were you disciplined in some way or did they
19 provide you with more training to help you do your job faster
20 or meet that quantity statistic?
21 A. Additional help from my supervisors, if you -- not a
22 specific training class but some going over my -- the processes
23 that I do to help me do them faster or -- from my supervisor,
24 yes.

25 (Interruption in proceedings.)

1 MR. McLOON: Excuse me, can we go off the
2 record?
3 MR. Szwak: Sure.
4 THE VIDEOGRAPHER: Off the record at
5 approximately 11:20 a.m.
6 (Short recess.)
7 THE VIDEOGRAPHER: Back on the record at
8 approximately 11:21 a.m.
9 Q. You don't have any recollection of Mr. Carriere or
10 your contact with him; is that true?
11 A. No, I don't.
12 Q. Anything you might know about it would be as a
13 result of reading the documents produced by your employer in
14 this litigation and interpreting those?
15 A. Yes.
16 Q. But the information that's contained in those
17 records, at least insofar as what occurred with your
18 involvement with the file, would be as a result of your
19 activity in the file; is that true?
20 MR. McLOON: Objection, no foundation.
21 A. Yes.
22 Q. Okay.
23 MR. Szwak: Thank you. I don't have any
24 further questions. Thanks for coming.
25 THE VIDEOGRAPHER: This concludes the

1 deposition of Nancy Hampton. Off the record at approximately
2 11:22 a.m.
3 (Exhibit A marked.)
4 (Deposition concluded at 11:22 a.m.)
8 [/b]

David A. Szwak

Postby David A. Szwak » Mon Dec 05, 2005 11:20 pm

DiPrinzio v. MBNA America Bank, N.A.
Slip Copy, 2005 WL 2039175

2. "Disputes Per Hour" Quota
Defendant next seeks to preclude evidence referring to the number of disputes per hour processed by MBNA's employee's. It contends that such evidence is wholly irrelevant to this matter. Further, it asserts that it is prejudicial in that any evidence of the disputes per hour processed by MBNA has no bearing on the amount of time taken to process plaintiff's specific disputes. Nonetheless, a jury exposed to information regarding the average processing time could improperly believe that MBNA's investigations of the particular disputes relating to plaintiff were conducted in the same amount of time.
The Court finds defendant's argument to be flawed on two bases. First, the information is directly relevant under 15 U.S.C. § 1681s-2(b)(1), which states that a creditor must conduct a investigation of a consumer's disputes. 15 U.S.C. § 1681s-2(b)(1). Although the Act does not define the level of investigation required, numerous courts have agreed that section 1681s-2(b)(1)'s investigation requirement for furnishers of credit information "is analogous to the requirement imposed upon credit reporting agencies under § 1681i(a) to reinvestigate a consumer's dispute regarding information contained in his credit report." Eyantesh v. G.E. Capital Mtg. Svcs., Inc., Civ. A. No. 02-1188, 2003 WL 22844198, *6 (E.D.Pa. Nov. 25, 2003) (citing Bruce v. First U.S.A. Bank, National Assoc., 103 F.Supp.2d 1135, 1143 (E.D.Miss.2000). Therefore, furnishers of credit are required to conduct a "reasonable investigation." Id. See Johnson v. MBNA Bank, N.A., 357 F.3d 426, 432- 433 (4th Cir.2004) (furnisher of credit information must conduct reasonable investigation of consumer's dispute). To determine reasonableness, courts have applied an analysis weighing "the cost of verifying the accuracy of the information versus the possible harm of reporting inaccurate information." Id. (citing Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.1997)). Thus, the number of disputes processed by MBNA per hour goes directly to that analysis by providing a basis for the cost of the investigation to plaintiff. See Cushman, 115 F.3d at 222, 225 (fact that agency paid its clerks $7.50 per hour and expected them to perform ten investigations per hour was relevant in cost-benefit analysis to determine whether particular investigation was reasonable).
*11 To the extent defendant argues that jury will be improperly misled into believing that its average dispute-processing time is representative of the time spent on plaintiff's dispute, its argument disregards well-established a fundamental principle of the Federal Rules of Evidence. Rule 406 states as follows:
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Fed.R.Evid. 406. Pursuant to this rule, evidence that MBNA routinely processed an average of 24 disputes per hour is relevant to prove that MBNA acted in conformity with regards to plaintiff's disputes, processing it in an average time of two and a half minutes. The burden then falls on defendant at trial to prove that it varied from its standard practice with regards to plaintiff's case. Accordingly, the Court denies the motion in limine on this point.

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