DO NOT LET EXPERIAN TELL THE STORY- YOU TELL THE STORY

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DO NOT LET EXPERIAN TELL THE STORY- YOU TELL THE STORY

Postby Administrator » Mon Nov 10, 2014 8:10 am

DO NOT LET EXPERIAN [BE THE PROFESSOR] TELL THE STORY- YOU TELL THE STORY
TESTIMONY OF EXPERIAN'S DAVID BROWNE - PRIOR TESTIMONY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION

CYNTHIA COMEAUX . DOCKET NO. 2:02CV304
VS. . MARSHALL, TEXAS
EXPERIAN INFORMATION . OCTOBER 13, 2004
SOLUTIONS, INC. . 11:10 A.M.
EXCERPT OF TRIAL
TESTIMONY OF DAVID A. BROWNE
BEFORE THE HONORABLE DAVID FOLSOM,
UNITED STATES DISTRICT JUDGE, AND A JURY.
APPEARANCES:
FOR PLAINTIFF: MR. David A. Szwak
MS. MARY ELLEN _
Bodenheimer Jones Szwak &
_
402 MARKET ST.
Mid South Tower
Suite 1404
SHREVEPORT, LA. 71101


FOR DEFENDANT: MR. DANIEL JOHN MCLOON
Jones DAY
555 WEST FIFTH STREET
SUITE 4600
LOS ANGELES, CA. 90013

MS. LUCINDA W. ANDREW
Jones DAY
2727 N. HARWOOD ST.
DALLAS, TX. 75201


PROCEEDINGS RECORDED BY MANUAL STENOGRAPHY, TRANSCRIPT PRODUCED BY NOTE READING.
INDEX
PLAINTIFF’S ADVERSE WITNESS
DAVID A. BROWNE
DIRECT EXAMINATION BY MR. Szwak................... 3
CROSS EXAMINATION BY MR. MCLOON..................104

REPORTER’S CERTIFICATION...................................122


P R O C E E D I N G S
MARSHALL, TEXAS
OCTOBER 13, 2004
(OPEN COURT)



*****
DIRECT EXAMINATION CONTINUES
.Q OKAY. NOW, I THINK IT MIGHT BE HELPFUL TO THE JURY IF WE JUST BACK UP FOR A MOMENT AND TALK ABOUT CREDIT REPORTING GENERALLY. IS IT TRUE THAT EXPERIAN AS A CREDIT REPORTING AGENCY WAS ACTUALLY FORMED AS A BUSINESS FOR THE PURPOSE OF TRACKING CONSUMER CREDIT TRANSACTIONS? AS AMERICANS BECAME MORE MOBILE, COMPUTERS AND MANUAL DATA FILES WERE USED TO TRACK CONSUMER BEHAVIOR?
A YOU ARE PROBABLY REFERRING TO TRW WHEN YOU SAY THAT.
Q NOW EXPERIAN?
A AND, YES, TRW, I AM NOT SURE THAT IT USED THAT NAME INITIALLY, BUT, YES, IT WAS FORMED TO TRACK THE CREDIT HISTORIES OF CONSUMERS TO TRY TO MAKE IT POSSIBLE FOR CONSUMERS WHO MOVE AROUND THE COUNTRY TO HAVE THEIR CREDIT HISTORIES FOLLOW THEM WHERE THEY GO, AND TO TRY TO COMPUTERIZE THAT TO MAKE THE PROCESS OF ALLOWING CREDIT RUNNERS, LENDERS, BANKS AND PEOPLE, AND ALSO CONSUMERS, TO SEE WHAT’S ON THEIR CREDIT REPORT.
Q AND ONE OF THE FUNCTIONS OF CREDIT REPORTING WOULD OBVIOUSLY BE TO ASSIST A LENDER OR ANY TYPE OF COMPANY IN EVALUATING A CONSUMER BEFORE THEY EXTEND SOME BENEFIT TO THEM, RIGHT?
A YES.
Q THAT COULD BE AN AUTO INSURANCE COMPANY, A BANK FOR CHECKING ACCOUNTS, CREDIT ACCOUNTS, ETCETERA, RIGHT?
A FOR INSURANCE THERE ARE CERTAIN LEGAL RULES AS TO WHEN THEY CAN PULL A CREDIT REPORT AND NOT. AND I AM NOT AWARE THAT FOR INSURANCE AMOUNTS OVER A CERTAIN FIGURE, THEY ARE ALLOWED TO. BUT CERTAINLY FOR BUYING A CAR, BORROWING MONEY FOR THAT, MORTGAGES, CREDIT CARDS, ETCETERA, THAT IS CERTAINLY A PERMISSIBLE PURPOSE.
Q NOW, EXPERIAN AND FORMERLY TRW, YOU ARE ACTUALLY IN THE BUSINESS OF TAKING IN PERSONAL AND CREDIT DATA AND COMPILING THAT INFORMATION INTO A LARGE COMPUTER SYSTEM, CORRECT?
A YES.
Q AND IT IS BASICALLY AS THE INFORMATION COMES INTO THE SYSTEM, IT IS FED INTO A VERY LARGE DATABASE SYSTEM, RIGHT?
A WE DO USE A PROPRIETARY DATABASE SYSTEM, YES.
Q IT MIGHT BE FAIRLY CALLED A RELATIONAL DATABASE WHERE THERE ARE DIFFERENT DATA FIELDS CONTAINED WITHIN EACH RECORD IN THE SYSTEM, IS THAT FAIR?
A WELL, DIFFERENT DATA FIELDS, BUT ALSO DIFFERENT TABLES, MULTIPLE TABLES.
Q IS IT FAIR TO DESCRIBE THE COMPANIES THAT SUBSCRIBE TO YOUR SERVICES AT EXPERIAN AS EITHER FURNISHERS OR USERS OF CREDIT INFORMATION, OR PERHAPS BOTH?
A YES.
Q AND, IN FACT, THE WORD FURNISHER IMPLIES THE FURNISHING OF INFORMATION TO EXPERIAN, CORRECT?
A YES.
Q AND SOMEONE WHO USES CREDIT INFORMATION WOULD BE SOMEONE WHO MIGHT ACCESS CREDIT REPORTS AND USE THAT INFORMATION, RIGHT?
A YES.
Q AND THERE ARE OTHER PRODUCTS OTHER THAN THE CREDIT REPORT THAT YOUR COMPANY WOULD SELL TO ITS SUBSCRIBERS, IS THAT TRUE?
A YES.
Q THERE MIGHT BE DERIVATIVE REPORTS, WHICH ARE LESS THAN A CREDIT REPORT, OR IT MIGHT BE A MORE DETAILED REPORT THAN A CREDIT REPORT, PERHAPS AN INVESTIGATIVE CREDIT REPORT, RIGHT?
A NO, WE DON’T PROVIDE INVESTIGATIVE CREDIT REPORTS.
Q AT EXPERIAN THEY DON’T PROVIDE INVESTIGATIVE CREDIT REPORTS, CORRECT?
A YES.
Q BUT YOU DO SELL DERIVATIVE OR LESSER VERSION CREDIT REPORT COPIES, CORRECT?
A YES.
Q NOW, CONSUMERS LIKE MS. COMEAUX, THEY ARE NOT A MAJOR SOURCE, NOT A DIRECT SOURCE OF DATA IN YOUR DATA REPORTING SYSTEM, IS THAT TRUE?
A GENERALLY SPEAKING, THAT’S CORRECT.
Q MOST CONSUMERS WHEN THEY MOVE MAYBE FROM ONE STATE TO ANOTHER, DO NOT WRITE YOUR COMPANY, DON’T EVEN KNOW TO WRITE YOUR COMPANY, RIGHT?
A THAT’S CORRECT.
Q I MEAN, YOU WOULDN’T EXPECT IF MS. COMEAUX MOVED FROM LA PLACE, LOUISIANA TO DALLAS, TEXAS, FOR HER TO HAVE WRITTEN EXPERIAN AND TOLD YOU THAT SHE HAD MOVED, RIGHT?
A THAT WOULD BE MOST UNTYPICAL.
Q ISN’T IT TRUE THAT PERHAPS AS MS. COMEAUX MOVED TO DALLAS AND SHE REPORTED HER NEW BILLING ADDRESS TO HER TRUE CREDITORS, THAT YOU WOULD EXPECT THEM TO THEN UPDATE THEIR RECORDS AND REPORT THAT ADDRESS BACK INTO EXPERIAN, THEREBY CAPTURING IT IN YOUR SYSTEM?
A YES.
Q IS THAT HOW IT NORMALLY HAPPENS?
A YES.
Q AND SUBSEQUENTLY, LET’S SAY MS. COMEAUX THEN MOVED TO CALIFORNIA A MONTH LATER AND STARTED SETTING UP SHOP OUT THERE AND NOTIFYING HER CREDITORS OF HER NEW BILLING ADDRESS, YOU WOULD EXPECT THAT INFORMATION THEN TO PERCOLATE BACK TO EXPERIAN, RIGHT?
A YES.
Q NOW, IS IT ACCURATE TO SAY THAT THE PUBLIC RECORDS ITEMS THAT EXPERIAN REPORTS IN ITS CREDIT REPORTS, THOSE REALLY DON’T COME TO EXPERIAN IN THE SAME MANNER THAT REGULAR TRADE ACCOUNTS COME TO EXPERIAN?
A I AM NOT SURE WHAT YOU MEAN BY THAT.
Q WELL, LET ME ASK YOU, IS IT TRUE THAT WHEN YOU LOOK AT AN EXPERIAN CREDIT REPORT, A PUBLIC RECORD ITEM IS DIFFERENT FROM A TRADE ACCOUNT ITEM?
A WELL, IT CONTAINS DIFFERENT INFORMATION.
Q WELL, A PUBLIC RECORD ITEM WOULD BE SOMETHING THAT HAD COME FROM THE PUBLIC RECORD, MAYBE A JUDGMENT, OR A TAX LIEN, OR A BANKRUPTCY, IS THAT TRUE?
A YES.
Q AND A TRADE ACCOUNT MIGHT BE A COLLECTION ACCOUNT, IT MIGHT BE A NORMAL CREDIT ACCOUNT WITH SOME LENDER, IS THAT TRUE?
A YES.
Q BUT THOSE SOURCES OF INFORMATION DIFFER IN TERMS OF HOW THEY GET TO EXPERIAN, IS THAT TRUE?
A NOT NECESSARILY, NO.
Q WELL, WHEN YOU POST A PUBLIC RECORD ITEM TO A PERSON’S CREDIT REPORT, DOES THAT COME FROM A PUBLIC RECORD SOURCE OR A PUBLIC RECORD VENDOR?
A IT COMES FROM A PUBLIC RECORD VENDOR.
Q AND PUBLIC RECORD VENDORS ARE PEOPLE WHO, GENERALLY SPEAKING, GO OUT TO THE COURTHOUSE AND SCOOP UP INFORMATION OUT OF THE FACE OF THE PUBLIC RECORD AND THEN REPORT IT BACK TO EXPERIAN, IS THAT TRUE?
A WELL, THEY CAN GET IT IN DIFFERENT WAYS. THEY CAN GET IT -- IF I AM LOOKING AT A COMPUTER SCREEN LOOKING AT A FILE, OR SOMETIMES THEY GET WHAT I WILL CALL AN ELECTRONIC FEED FROM THE COURT ITSELF.
Q THAT’S TRUE, THERE’S DIFFERENT MECHANISMS OF TRANSMISSION, BUT THE BOTTOM LINE IS, THE INFORMATION IS COMING FROM THE PUBLIC RECORD AS OPPOSED FROM A LENDER’S RECORDS?
A YES.
Q NOW DIFFERENTIATING FOR A MOMENT, WHEN WE TALK ABOUT TRADE ACCOUNTS APPEARING IN AN EXPERIAN CREDIT REPORT, THIS IS NORMALLY INFORMATION THAT IS REPORTED TO EXPERIAN FROM A SUBSCRIBER, A COMPANY SET UP FOR SERVICES WITH EXPERIAN TO REPORT INFORMATION TO YOU, CORRECT?
A YES.
Q NOW IS IT ALSO TRUE THAT SOME LENDERS CAN ATTACH A SPECIAL COMMENT? IN FACT, ALL LENDERS, IF THEY ARE REPORTING TO YOU IN A STANDARDIZED FORMAT, CAN ATTACH A SPECIAL COMMENT TO AN ACCOUNT?
A THEY CAN.
Q IN FACT, THERE IS A SPECIAL DATA FIELD SET UP IN THE REPORTING FORMAT THAT WE WILL GO OVER IN A MOMENT, BUT THAT SPECIAL DATA FIELD PERMITS THE LENDER TO MAKE A COMMENT ABOUT SOME ASPECT OF THAT ACCOUNT, IS THAT TRUE?
A YES.
Q AND IN THIS CASE ISN’T IT TRUE THAT SOME OF THE ACCOUNTS THAT WERE REPORTED ON MY CLIENT’S CREDIT REPORT CONTAINED A SPECIAL COMMENT OF ACCOUNT INCLUDED IN BANKRUPTCY OR INCLUDED IN BANKRUPTCY?
A YES.
Q NOW, I THINK WE CAN AGREE THAT THOSE ACCOUNTS WERE NOT MY CLIENT’S ACCOUNTS, TRUE?
A YES.
Q NOW, IN THIS PARTICULAR CASE WHERE IT CONCERNED THE UNITED STATES BANKRUPTCY COURT IN NEW ORLEANS, LOUISIANA, DID EXPERIAN EMPLOY ACTUAL EMPLOYEES TO GO TO THAT PARTICULAR COURTHOUSE TO GATHER INFORMATION?
A NO.
Q DID YOU ACQUIRE THAT INFORMATION THROUGH A PUBLIC
RECORD VENDOR?
A YES.
Q SO THERE WAS AN INTERMEDIARY BETWEEN EXPERIAN AND THE FACE OF THE PUBLIC RECORD THAT REPORTED MS. CARR'S BANKRUPTCY TO EXPERIAN, IS THAT TRUE?
A YES.
Q WHEN YOU REVIEWED THE RECORDS IN THIS CASE, IS THERE ANY DOUBT IN YOUR MIND THAT THE BANKRUPTCY THAT WAS POSTED ON MY CLIENT'S CREDIT FILE CAME TO EXPERIAN BEARING THE IDENTIFIERS OF MS. CARR AND NONE OF MS. COMEAUX'S IDENTIFIERS?
A I BELIEVE, FROM MY RECOLLECTION, THEY HAD MS. CARR'S NAME, AND I BELIEVE MS. CARR'S ADDRESS.
Q AND IS THAT WHAT WAS REFLECTED IN YOUR INTERNAL RECORDS AT EXPERIAN?
A I WOULD HAVE TO REFRESH MY MEMORY.
Q WE CAN DO THAT IN A MOMENT, BUT I APPRECIATE THAT. THANK YOU. NOW, AGAIN, FOR PURPOSES OR OUR DISCUSSION, EXPERIAN IS ONE OF THREE NATIONAL CREDIT REPORTING AGENCIES, CORRECT?
A YES.
Q AND SO YOU COMPETE. YOU ARE DIRECT COMPETITORS WITH TRANSUNION AND EQUIFAX, WHO ARE ALSO NATIONAL CREDIT REPORTING AGENCIES?
A YES.
Q AND SOME BUSINESSES, IN FACT, A LARGE NUMBER OF BUSINESSES, SUBSCRIBE TO ALL THREE NATIONAL CREDIT REPORTING AGENCIES, CORRECT?
A YES.
Q AND THAT PARTICULAR USER OF CREDIT INFORMATION CAN PICK AND CHOOSE WHO THEY WANT TO BUY CREDIT REPORTS FROM, IS THAT TRUE?
A YES.
Q AND, OF COURSE, I MAY HAVE ALLUDED TO THIS EARLIER, BUT EXPERIAN IS A FOR PROFIT BUSINESS, IS THAT TRUE?
A YES.
Q AND YOU ALL -- I SAY YOU ALL, EXPERIAN HAS CHOSEN TO BE IN THE CREDIT REPORTING BUSINESS PERTAINING TO CONSUMERS, CORRECT?
A YES.
Q IS IT ACCURATE TO SAY THAT AS EXPERIAN BEGINS TO COLLECT INFORMATION REGARDING CONSUMERS, YOU PLACE IT INTO THE DATABASE AND PERIODICALLY WILL REFORMAT THAT INFORMATION AND THEN SELL THAT INFORMATION IN THE FORM OF A REPORT OR A PRODUCT TO THIRD PERSONS?
A THAT'S A FAIR CHARACTERIZATION.
Q IN COLLECTING ACCOUNT INFORMATION, WE ARE NOT TALKING ABOUT PUBLIC RECORD INFORMATION NOW, WE ARE TALKING JUST ABOUT TRADE ACCOUNT INFORMATION, DOES EXPERIAN REQUIRE ITS FURNISHERS TO REPORT THAT INFORMATION IN A STANDARDIZED FORMAT?
A YES.
Q AND THAT FORMAT WOULD BE KNOWN AS THE METRO FORMAT. GENERALLY, THERE WAS A METRO 1, NOW A METRO 2, BUT IT IS CALLED METRO FORMAT, CORRECT?
A THAT IS CORRECT.
Q IS IT FAIR TO CHARACTERIZE THIS AS A NUMBER OF STANDARD DATA FIELDS THAT CAN BE REPORTED TO EXPERIAN IN A STREAM OF DATA?
A THAT'S ONE DEFINITION OF IT, YES.
Q SO THE METRO FORMAT MAKES IT EASY. LET'S SAY FOR EXAMPLE SEARS WANTED TO REPORT TENS OF THOUSANDS OF ACCOUNTS EACH MONTH, THEY COULD REPORT THIS INFORMATION TO EXPERIAN FAIRLY EASILY BECAUSE THEY WOULD ATTACH IDENTIFICATION INFORMATION IN A STANDARDIZED SET OF DATA FIELDS WHERE EXPERIAN KNOWS BECAUSE OF THE FORMAT EXACTLY WHAT SEQUENCE THAT DATA IS COMING TO IT, IS THAT TRUE?
A WELL, BECAUSE OF THE FORMAT, BUT ALSO BECAUSE OF VARIOUS CODES THAT COMES IN WITH IT.
Q MANY TIMES EXPERIAN MIGHT, IN LIEU OF USING TEXT, OR SOMETIMES OTHER MESSAGES, THEY WOULD JUST USE A NUMERIC CODE OR AN ALPHANUMERIC CODE, IS THAT TRUE?
A YES.
Q AND SO WHEN IT HITS YOUR COMPUTER, IT IS IN A SHORTENED OR ABBREVIATED VERSION OF A CODE AS OPPOSED TO PERHAPS A STRING OF TEXT, IS THAT TRUE?
A IN SOME CASES, THAT'S TRUE.
Q BUT IT STILL COMES IN IN A STANDARDIZED METHOD SO YOU CAN EASILY INCLUDE IT AND UPLOAD IT INTO YOUR COMPUTER DATABASE, IS THAT TRUE?
A YES. EXCEPT THERE IS MORE THAN ONE FORMAT TO IT. IT'S NOT JUST ONE STANDARDIZED FORMAT.
Q AND IN THE FORMATS, WHEN WE TALK ABOUT THE METRO FORMAT, THERE ARE DIFFERENT SEGMENTS IN THAT FORMAT THAT PERMIT DIFFERENT TYPES OF REPORTINGS TO BE MADE, TRUE?
A YES.
Q NOW, IS IT TRUE THAT THE STANDARDIZED METRO FORMAT SPECIFICALLY HAS DATA FIELDS FOR A PERSON'S LAST NAME, FIRST NAME, MIDDLE NAME OR MIDDLE INITIAL, SOCIAL SECURITY NUMBER, DATE OF BIRTH, PRIOR ADDRESSES?
A YES.
Q SO THIS IS THE TYPE OF INFORMATION THAT YOU WOULD ORDINARILY EXPECT TO RECEIVE AS PART OF THE RECORD FROM THE FURNISHER EACH TIME THEY REPORT ABOUT AN ACCOUNT, IS THAT TRUE?
A IF THEY HAVE ALL OF THAT INFORMATION, WE WOULD EXPECT TO GET IT, YES.
Q NOW, IS IT IN FACT TRUE THAT IN TERMS OF THE FORMAT THAT WOULD BE USED BY EXPERIAN, EXPERIAN CAN DICTATE THE FORMAT OF THE DATA IT RECEIVES?
A THAT WOULDN'T BE A TRUE STATEMENT.
Q DOES EXPERIAN OWN ITS DATABASE?
A YES.
Q DOES EXPERIAN CONTROL WHO REPORTS INFORMATION TO IT?
A YES. TO A DEGREE, YES.
Q I MEAN, YOU CAN CHOOSE TO ACCEPT DATA FROM CERTAIN COMPANIES AND PERSONS AND NOT OTHERS, TRUE?
A YES.
Q THERE IS NO LAW THAT SAYS, FOR EXAMPLE, YOU WOULD HAVE TO LET ME BE A SUBSCRIBER TO YOUR COMPANY, RIGHT?
A THAT IS CORRECT.
Q SO I MEAN WHEN WE TALK ABOUT GATEKEEPING, EXPERIAN IS THE GATEKEEPER OF ITS COMPUTER IN TERMS OF WHO ACCESSES IT, RIGHT?
A YES.
Q IS IT ALSO THE GATEKEEPER IN TERMS OF WHO REPORTS DATA TO IT?
A YES, YOU COULD SAY THAT.
Q THERE AGAIN, IF I WANTED TO REPORT ACCOUNTS ABOUT SOMEONE, I COULDN'T JUST BECOME AN EXPERIAN SUBSCRIBER OF RIGHT, YOU WOULD HAVE TO ACCEPT ME, CORRECT?
A YES. YOU WOULD HAVE TO GO THROUGH OUR NORMAL APPLICATION PROCESS, ETCETERA, ETCETERA.
Q NOW, AND WHEN SOMEONE SIGNS UP AS A SUBSCRIBER TO EXPERIAN, YOU ALL HAVE A CONTRACT WITH THEM, RIGHT?
A YES.
Q THEY PROMISE TO DO CERTAIN THINGS, AND YOU ALL PROMISE TO DO CERTAIN THINGS?
A YES.
Q AND IN THAT CONTRACT YOU HAVE THE ABILITY TO DICTATE TO THAT SUBSCRIBER HOW THEY WILL REPORT DATA TO YOU, IS THAT TRUE?
A NO.
Q YOU DON'T?
A NO.
Q SO YOU CAN'T TELL SEARS, FOR EXAMPLE, IF THEY WANTED TO REPORT ACCOUNTS WITH JUST A NAME AND THEN A BUNCH OF ACCOUNT INFORMATION, YOU COULDN'T TELL SEARS: WE ARE NO LONGER GOING TO ACCEPT YOUR DATA, IS THAT TRUE?
A WELL, IT DOESN'T WORK THAT WAY. WOULD YOU LIKE ME TO EXPLAIN?
Q PLEASE, AND IN THE CONTEXT OF MY QUESTION IF YOU COULD TELL ME WHY. WHY IS IT THAT YOU WOULDN'T BE ABLE TO TELL SEARS: WE ARE NOT GOING TO ACCEPT YOUR DATA BECAUSE IT DOESN'T HAVE ENOUGH IDENTIFIERS?
A WELL, THE CDIA, IT'S THE CREDIT DATA INDUSTRY, THEY HAVE COME OUT WITH A STANDARD OF REPORTING, AND THAT YOU REFERRED TO EARLIER IS METRO -- METRO 2. SO THAT'S WHY EXPERIAN UNILATERALLY COULDN'T DICTATE AND SAY, WELL, WE ARE GOING TO COME UP WITH SOMETHING CALLED EXPERIAN 1. AND, SEARS, YOU HAVE GOT TO REPORT IN THIS FORMAT. SEARS MIGHT NOT BUY INTO THAT.
Q WELL, THE CDIA IS THE LOBBYING GROUP FOR THE NATIONAL CREDIT REPORTING AGENCIES BEFORE CONGRESS, ISN'T THAT RIGHT?
A NO. THE CDIA DOES A NUMBER OF FUNCTIONS, AND ONE OF THEM IS TO WORK WITH LENDERS WITH A VIEW TO THE ACCURATE REPORTING OF CREDIT INFORMATION TO CREDIT BUREAUS LIKE MY COMPANY.
Q WELL, THEY PROVIDE TRAINING TO LENDERS AS WELL AS TO CREDIT BUREAU EMPLOYEES, IS THAT TRUE?
A WELL, I DON'T KNOW ALL OF THEIR FUNCTIONS PERFORMED BY THE CDIA, BUT I DO KNOW THAT THEY ARE THE ONES THAT SET THE STANDARD IN TERMS OF THE REPORTING FORMATS, AND IT IS NOT EXPERIAN THAT DOES THAT.
Q AND YOUR TESTIMONY IS THAT THAT IS NOT A LOBBYING GROUP, IS THAT TRUE?
A NO, I SAID THAT IT IS NOT JUST A LOBBYING GROUP. I AM SURE THAT IS PART OF WHAT THEY DO, BUT THAT'S, AS FAR AS I AM CONCERNED, THEY PERFORM A MUCH MORE SIGNIFICANT ROLE IN TERMS OF DETERMINING HOW -- WHAT FORMATS ARE TO BE FOLLOWED AND USED BY LENDERS WHEN THEY WANT TO REPORT INFORMATION TO CREDIT BUREAUS LIKE EXPERIAN.
Q SO THIS ASSOCIATION, THE CDIA, THAT WAS FORMERLY THE ASSOCIATED CREDIT BUREAUS ORGANIZATION, RIGHT?
A YES.
Q THEY HAVE BEEN RENAMED NOW, CORRECT?
A YES.
Q IT IS NOW CONSUMER DATA INDUSTRY ASSOCIATION, IS THAT RIGHT?
A I BELIEVE SO.
Q AND THEY HAVE, THROUGH THEIR TASK FORCES, DEVELOPED A METRO 2 FORMAT, CORRECT?
A THEY HAVE.
Q NOW AS PART OF THIS REPORTING FORMAT, GETTING BACK TO THE REPORTING FORMAT, THE STANDARDIZED REPORTING FORMAT, IS IT TRUE THAT WHEN A TRADE ACCOUNT IS REPORTED IN, IN ADDITION TO THE IDENTIFIERS, WHICH WE WENT OVER A MINUTE AGO, THE DIFFERENT IDENTIFICATION FIELDS, THAT THOSE -- THAT YOU WOULD HAVE CERTAIN DATA FIELDS TO IDENTIFY THE SUBSCRIBER BY THEIR SUBSCRIBER CODE, IS THAT TRUE?
A YES.
Q SO THAT YOU KNOW WHO IS REPORTING THE INFORMATION TO YOU, CORRECT?
A YES.
Q AND IT WOULD INCLUDE THE ACCOUNT NUMBER AND A SERIES OF ACCOUNT STATUS FIELDS, IS THAT TRUE?
A YES.
Q NOW, NOT TO BELABOR THE POINT, BUT THIS STANDARDIZED REPORTING FORMAT IS BASICALLY IN PLACE TO PERMIT EASY INCLUSION OF THE DATA ON A MONTH-TO-MONTH BASIS INTO YOUR COMPUTER DATABASE, IS THAT TRUE?
A THAT'S CERTAINLY TRUE AS FAR AS IT GOES, YES.
Q BECAUSE IF IT WEREN'T, IT WOULD BE VERY DIFFICULT TO ASSEMBLE AND RELATE THOSE PIECES OF DATA INTO YOUR RELATIONAL DATABASE, RIGHT?
A YES.
Q NOW, ONCE THE DATA -- LET'S SAY ON ANY GIVEN DAY SOME INFORMATION IS REPORTED TO YOU BY A FURNISHER, ONCE THAT INFORMATION COMES INTO YOUR COMPUTER SYSTEM AT EXPERIAN, DOES EXPERIAN ATTEMPT IN ANY WAY TO SCREEN THAT INFORMATION FOR POTENTIAL PROBLEMS OR BUGS OR DEFECTS?
A YES.
Q AND YOU ALL RUN A SERIES OF SCREEN PROCESSES DESIGNED TO CHECK FORMATTING OF THE INFORMATION, CORRECT?
A I WOULDN'T DESCRIBE IT AS A SCREEN PROCESS, BUT WE DO HAVE SOFTWARE THAT'S GOT A LOT OF CHECKS AND BALANCES BUILT INTO IT TO TRY AND DETECT PROBLEMS WITH THE DATA.
Q DO YOU ALSO HAVE ANY PROGRAMS THAT ATTEMPT TO LINK THAT NEW INFORMATION TO PREEXISTING FILES IN THE SYSTEM?
A YES.
Q AND WHAT IS THE NAME OF THAT PARTICULAR PROGRAM OR PROCEDURE?
A WELL, THAT SOFTWARE IS CALLED FIND CONSUMER.
Q SO LET'S SAY AS INFORMATION IS REPORTED TO EXPERIAN UNDER MS. CARR'S NAME, SOCIAL, ADDRESS, AND IT COMES INTO THE EXPERIAN COMPUTER SYSTEM, THIS FIND CONSUMER PROGRAM OR PROCEDURE AT EXPERIAN WOULD BEGIN CULLING THROUGH THE DATABASE AS IT EXISTED AT THAT POINT IN TIME, LOOKING FOR A PREEXISTING FILE CONTAINING MS. CARR'S IDENTIFIERS, IS THAT TRUE?
A THAT'S A GOOD APPROXIMATION.
Q OKAY. DOES EXPERIAN HAVE ANY TYPE OF PROCEDURE OR PROGRAM IN PLACE TO SCREEN FILES WHEN THEY HAVE SOCIAL SECURITY NUMBERS THAT ARE SIMILAR BUT MAY BE ONE OR TWO DIGITS DIFFERENT?
A WELL, THAT IS PERFORMED BY THE FIND CONSUMER SOFTWARE, WHICH IS INTENDED TO LOOK FOR NOT JUST MATCHING IDENTIFIERS ON THE CREDIT REPORT, BUT ALSO WHERE THERE ARE CONFLICTS, AND IT IS DESIGNED TO FUNCTION WHEN THAT HAPPENS.
Q WHEN DID FIND CONSUMER AS A PROGRAM OR PROCEDURE COME INTO USE AT EXPERIAN?
A IT CAME IN WHEN THE FILE 1 SYSTEM WAS CREATED.
Q AND FILE 1 CAME INTO PLACE IN 1996?
A YES.
Q THAT WAS PART OF THE TRANSITION BETWEEN TRW TO EXPERIAN?
A WELL, IT ACTUALLY CAME IN PRIOR TO THE TRANSITION.
Q NOW, IF INFORMATION WERE REPORTED TO EXPERIAN AND THE FIND CONSUMER PROGRAM STARTS CULLING THE RECORDS LOOKING FOR SOME MATCHING FILE AND IT DOESN'T FIND THE FILE AS SUCH, DOES IT CREATE A NEW FILE?
A IF IT CANNOT FIND A FILE WHICH AT THE END OF THE PROCESSING IT CAN DETERMINE BELONGS TO THE NEW INFORMATION COMING IN, OR IS THE SAME ENTITY, THEN IT WILL CREATE A NEW RECORD.
Q YOU USE THE WORD RECORD. I USE THE WORD FILE. YOU UNDERSTAND WHEN I SAY FILE WHAT I AM REFERRING TO, RIGHT?
A AND I AM SURE YOU WILL UNDERSTAND WHEN I AM --
Q IS IT FAIR TO SAY THAT A FILE OR A RECORD IS BASICALLY AN ACCUMULATION OF INFORMATION? IT CAN BE ONE ACCOUNT OR MANY ACCOUNTS, ONE PUBLIC RECORD OR MANY, OR EVEN AN INQUIRY POSTED THAT WOULD CREATE A NEW FILE OR RECORD IF THERE IS NO PREEXISTING FILE OR RECORD IN THE SYSTEM WITH SIMILAR OR SAME IDENTIFICATION INFORMATION?
A YES.
Q NOW, WE TOUCHED ON IT A MOMENT AGO PRIMARILY WITH REGARD TO TRADE ACCOUNTS, BUT IS IT TRUE THAT PUBLIC RECORDS DATA IS ALSO REPORTED TO EXPERIAN IN A STANDARDIZED FORMAT?
A YES.
Q SO WHETHER YOU RECEIVE THE TRANSMISSION DIRECTLY FROM THE PUBLIC RECORD SOURCE, LIKE A COURTHOUSE, OR WHETHER YOU GET IT THROUGH A THIRD PARTY VENDOR, YOU EXPECT TO RECEIVE THAT INFORMATION IN THE SAME STANDARDIZED FORMAT AS YOU MIGHT RECEIVE TRADE ACCOUNT INFORMATION?
A WELL, IT WOULD BE IN A STANDARDIZED FORMAT, BUT IT WOULDN'T BE FOLLOWING THE SAME -- YOU REFERRED TO SEGMENTS EARLY ON, SEGMENTS OR CODES. THERE WOULD BE CERTAIN DIFFERENT SEGMENTS AND SOME DIFFERENT CODES.
Q AND THAT'S BECAUSE, FOR EXAMPLE, WITH A PUBLIC RECORD ITEM YOU ARE NOT GOING TO HAVE A, QUOTE, "ACCOUNT NUMBER," OR AN EQUAL CREDIT OPPORTUNITY DESIGNATOR, ETCETERA. YOU ARE GOING TO HAVE CERTAIN PUBLIC RECORD DATA FIELDS, CORRECT?
A YES. FOR EXAMPLE, LIKE BOOK OR PAGE NUMBER.
Q NOW, IS IT TRUE THAT PUBLIC RECORD REPORTINGS, WHEN THEY COME TO YOU IN A STANDARDIZED FORMAT, ALSO HAVE A BASE SEGMENT, MEANING AN IDENTIFICATION SEGMENT HAVING THE CONSUMER'S IDENTIFIERS ABOUT WHOM THAT PUBLIC RECORD ITEM PERTAINS?
A YES.
Q AND WOULD THAT BASE SEGMENT, MEANING THE IDENTIFICATION DATA FIELDS, WOULD THAT INCLUDE LAST NAME, FIRST NAME, MIDDLE NAME OR MIDDLE INITIAL, SOCIAL SECURITY NUMBER, DATE OF BIRTH, PRIOR ADDRESSES?
A TYPICALLY, WE WOULDN'T GET THE YEAR OF BIRTH, OR DATE OF BIRTH OR AGE. AND, QUITE OFTEN --
Q IS IT TRUE THAT MOST PUBLIC --
A I'M SORRY?
Q I'M SORRY.
A AND QUITE OFTEN WE DON'T GET A SOCIAL.
Q IS IT TRUE THAT TYPICALLY SOME PUBLIC RECORD REPORTINGS OF JUDGMENTS, MAYBE LAWSUITS, MIGHT NOT HAVE A SOCIAL SECURITY NUMBER ATTACHED TO THEM?
A IT'S TYPICAL FOR JUDGMENTS NOT TO HAVE THE SOCIAL.
Q OR THE YEAR OF BIRTH?
A I HAVE NEVER SEEN A YEAR OF BIRTH. BUT OCCASIONALLY ON A JUDGMENT YOU CAN AND DO GET A YEAR OF BIRTH, BUT IT IS THE EXCEPTION.
Q NOW WITH THE BANKRUPTCY REPORTING, THE BANKRUPTCY COURT ALWAYS REQUIRES A SOCIAL SECURITY NUMBER, RIGHT?
A THAT'S MY UNDERSTANDING.
Q THEY REQUIRE, IN FACT, A FULL SET OF PERSONAL IDENTIFIERS ON THE CONSUMER, IS THAT TRUE?
A YOU ARE ASKING ME ABOUT WHAT THE COURT REQUIRES?
Q YES, SIR.
A I USUALLY -- I AM NOT AWARE OF WHERE WE HAVEN'T GOT THE SOCIAL ON A BANKRUPTCY, BUT I AM NOT SURE WHAT THE COURT RULES ON THAT.
Q BUT IS IT ACCURATE TO SAY THAT WHEN YOU RECEIVE DATA PERTAINING TO BANKRUPTCIES, IT COMES IN WITH A FULL SET OF IDENTIFYING INFORMATION?
A IT'S MY BELIEF THAT IT DOES.
Q NOW, OF THE IDENTIFICATION DATA FIELDS, HOW MANY OF THOSE DATA FIELDS ARE WHAT YOU WOULD CALL A FIXED DATA FIELD AS OPPOSED TO A VARIABLE DATA FIELD, SOMETHING THAT MIGHT CHANGE OVER TIME WITH THE CONSUMER?
A WELL, ALL DATA THAT GOES INTO COMPUTERS COULD CHANGE. IT COULD CHANGE BECAUSE IT WAS INPUT INCORRECTLY ON THE FIRST OCCASION, OR IT COULD CHANGE BECAUSE IT JUST CHANGED. LIKE, FOR EXAMPLE, A WOMAN GETS MARRIED, CHANGES HER NAME. SO I WOULDN'T -- BECAUSE OF THOSE REASONS, I WOULDN'T REGARD ANYTHING AS TOTALLY FIXED.
Q WELL, LET'S TALK ABOUT IN THE PUBLIC RECORD SETTING. AT THE POINT IN TIME THAT A BANKRUPTCY IS FILED, THE LAST NAME IS FAIRLY FIXED IN TERMS OF THE RECORD, IS THAT TRUE?
A UNLESS THE PUBLIC RECORD WAS INCORRECT, WHICH DOES OCCASIONALLY HAPPEN.
Q IS IT TRUE THAT AT THE TIME A BANKRUPTCY IS FILED, THE CONSUMER'S FIRST NAME IS SOMEWHAT FIXED AS FAR AS THE PUBLIC RECORD REPORTING?
A SUBJECT TO WHAT I JUST SAID, YES.
Q WHAT I AM SAYING IS, UNLIKE AN ACCOUNT WHERE MAYBE OVER TIME WHILE THE CONSUMER HAS AN ACCOUNT THEY GET MARRIED AND THEIR NAME CHANGES, BUT WITH A PUBLIC RECORD ITEM, WHEN THAT BANKRUPTCY IS FILED, THE NAME IS FIXED?
A IF IT WAS REPORTED ACCURATELY IN THE PUBLIC RECORD AND REPORTED TO US ACCURATELY, THEN IT WOULD BE FIXED AS YOU SAY. BUT IF THERE WAS AN ERROR IN THE PUBLIC RECORD AND WE WERE NOTIFIED ABOUT IT, WE WOULD CHANGE IT.
Q AND WE COULD GO DOWN THE OTHER DATA FIELDS, BUT LET ME ASK YOU SPECIFICALLY ABOUT SOCIAL SECURITY NUMBER. WITH FEW EXCEPTIONS, ISN'T IT TRUE THAT A PERSON'S SOCIAL SECURITY NUMBER NORMALLY DOES NOT CHANGE AND IS SOMEWHAT FIXED?
A THAT IS NORMALLY TRUE, PROVIDED IT IS REPORTED ACCURATELY TO US, AND PROVIDED THEY DIDN'T GO OUT AND GET A REPLACEMENT SOCIAL.
Q IN THIS PARTICULAR CASE, YOU DO NOT KNOW OF ANY FACT SUGGESTING THAT MS. COMEAUX OR MS. CARR GOT A REPLACEMENT SOCIAL, IS THAT TRUE?
A YES.
Q AND WITH REGARD TO DATE OF BIRTH, WOULD A PERSON'S DATE OF BIRTH OR YEAR OF BIRTH EVER CHANGE?
A NOT IF IT WAS PROVIDED TO US ACCURATELY IN THE FIRST PLACE.
Q WOULD IT BE FAIR TO SAY THAT WHEN WE TALK ABOUT FIXED IDENTIFIERS, SOMETHING THAT IS PRETTY WELL SET IN STONE THAT YOU CAN RELY UPON, THOSE ARE TWO DATA FIELDS THAT ARE FAIRLY FIXED?
A WHEN YOU SAY FIXED, YOU MEAN FIXED IN TERMS OF NEVER CHANGING IN OUR COMPUTER SYSTEM?
Q CORRECT.
A WELL, IF THEY GIVE IT CORRECTLY THE FIRST TIME, THEN I WOULD EXPECT -- AND THEY ARE NOT REPORTED TO US DIFFERENTLY LATER ON, I EXPECT THEM NEVER TO CHANGE.
Q ADDRESSES CAN CHANGE, PEOPLE'S NAMES CAN CHANGE, RIGHT?
A EVERYTHING CAN CHANGE, YES.
Q NOW, I WOULD LIKE TO TALK FOR A MOMENT ABOUT --
THE COURT: IS THIS A CONVENIENT BREAKING POINT?
MR. Szwak: YES.
THE COURT: BECAUSE I AM GOING TO ALLOW THE JURY TO GO TO LUNCH. THERE ARE ABOUT TEN MINUTES OF ITEMS I NEED TO TAKE UP WITH THE LAWYERS, AND THEN I HAVE AN INTERVIEW DURING THE NOON HOUR THAT I WANT TO STAY ON SCHEDULE. SO I AM GOING TO LET THE JURY GO FOR YOUR LUNCH BREAK TO RETURN ABOUT 1:20, AND WE WILL TRY TO START CERTAINLY NO LATER THAN 1:30. SO THE JURY MAY LEAVE FOR THE LUNCH HOUR.
YOU MAY STEP DOWN MR. BROWNE.
(JURY OUT AT 11:50 A.M.; OPEN COURT CONTINUING:)
THE COURT: EVERYONE MAY BE SEATED. WE HAD A -- PERHAPS THE RECORD REFLECTS THIS BY OUR CONVERSATION AT THE BENCH. TWO OR THREE MATTERS AROSE IN CHAMBERS BEFORE THE START OF THE TRIAL TODAY. GENTLEMEN AND LADIES, YOU CAN ALWAYS ASSUME, UNLESS MRS. CRAWFORD IS PRESENT TAKING DOWN THOSE MATTERS, THEY ARE NOT GOING TO BE ON THE RECORD. SO IF YOU WANT TO MAKE A RECORD, YOU EITHER NEED TO ALERT ME YOU NEED MRS. CRAWFORD IN CHAMBERS OR DO IT AT A LATER TIME.
SO WHY DON'T WE TAKE UP MR. BROWNE'S, THE ISSUE CONCERNING HIS TESTIMONY, AND THEN I BELIEVE WE HAVE A MATTER CONCERNING A VIDEO DEPOSITION, AND THEN I WANT TO ADDRESS THESE EXHIBITS, THE EXHIBIT ISSUE THAT MY LAW CLERK BROUGHT TO MY ATTENTION RIGHT BEFORE THE START OF THE SECOND SESSION AND YOUR AIDS THAT WE DISCUSSED.
MR. MCLOON: THANK YOU, YOUR HONOR. I REALLY DO APPRECIATE YOU HELPING US PRESERVE THE RECORD THIS WAY. IT IS OUR JOB AS LAWYERS TO DO THAT AND YOU HAVE HELPED US OUT, SO THANK YOU.
YES, YOUR HONOR, THE RECORD SHOULD REFLECT THAT BEFORE WE BEGAN THE PRESENTATION OF EVIDENCE TODAY WE BROUGHT TO HIS HONOR'S ATTENTION THAT WE WERE JUST NOTIFIED WITHIN THE LAST DAY OR SO THAT THE PLAINTIFFS INTENDED TO CALL MR. DAVID BROWNE. AND OUR OBJECTION TO THAT WAS SEVERAL FOLD. ONE, WE MADE A SPECIFIC MOTION IN LIMINE TO PRECLUDE THE WITNESS -- FROM THE PLAINTIFF CALLING WITNESSES WHO HADN'T BEEN DESIGNATED. MR. BROWNE HAD NEVER BEEN DESIGNATED AS A WITNESS THAT WAS GOING TO BE CALLED BY THE PLAINTIFF.
I UNDERSTAND THAT PLAINTIFF'S ARGUMENT IS THAT THEIR INTENTION WAS TO INDICATE ON THE PRETRIAL ORDER THAT THEY WERE PRESERVING THE RIGHT TO CALL ANYBODY DESIGNATED BY THE DEFENDANT. IN HINDSIGHT, I UNDERSTAND NOW WHY THEY MAKE THAT ARGUMENT, BECAUSE IN FACT WHAT THE PRETRIAL ORDER SAYS IS THAT THE PLAINTIFF PRESERVES THE RIGHT TO CALL ANY AND ALL OF THE WITNESSES LISTED ABOVE BY THE PLAINTIFF.
AND, FRANKLY, WHEN I READ THAT THE FIRST TIME, MY INTERPRETATION OF IT WAS THAT THE PLAINTIFF WASN'T NECESSARILY GOING TO CALL ALL OF THE WITNESSES, BECAUSE IN FACT THEY LISTED FAR MORE WITNESSES THAN I THINK ARE ACTUALLY GOING TO APPEAR. BUT THEY SAID, LOOK, WE ARE RESERVING THE RIGHTS TO CALL ANY AND ALL THESE WITNESSES THEY HAVE LISTED, BUT THEY HAD NOT LISTED MR. BROWNE.
COUNSEL'S ARGUMENT IS THAT IT WAS ACTUALLY A TYPOGRAPHICAL ERROR THAT WAS NEVER BROUGHT TO OUR ATTENTION, AND IN FACT IT WAS THE PLAINTIFF'S COUNSEL THAT PREPARED THE DOCUMENT, THAT WHAT THEY INTENDED TO SAY WAS THE SAME THING WE HAD SAID AT THE END OF OUR WITNESS LIST.
THE CONSEQUENCE TO THIS WAS THAT WE DID NOT PREPARE MR. BROWNE TO TESTIFY DURING THE PLAINTIFF'S CASE-IN-CHIEF THE WAY WE WOULD HAVE IF WE HAD BEEN GIVEN ADVANCE NOTICE, AND I SPECIFICALLY TOLD COUNSEL OF THAT.
THE OTHER POINT --
THE COURT: I MIGHT ADD MR. BROWNE IS DOING QUITE WELL. HE IS OBVIOUSLY QUITE AN EXPERIENCED WITNESS AND HAS HANDLED HIMSELF QUITE WELL.
MR. MCLOON: HE IS, YOUR HONOR. BUT TO BE FAIR, I CHARGE MY CLIENT A GREAT DEAL OF MONEY TO REPRESENT THEM IN THESE TRIALS, AND PART OF WHAT I DO IS TO HELP MR. BROWNE GET PREPARED FOR HIS TESTIMONY IN A PARTICULAR CASE ON A PARTICULAR DAY, AND I DID NOT HAVE THAT CHANCE.
THE SECOND POINT THAT I MADE HAS BEEN ACTUALLY BORNE OUT BY EXACTLY WHAT MR. Szwak HAS DONE OVER THE COURSE OF EXAMINATION. MR. Szwak, THE PLAINTIFF'S COUNSEL, HAS SEEN MR. BROWNE'S EXPERT TESTIMONY ON BEHALF OF EXPERIAN BEFORE, AND HE KNOWS THE POINTS THAT WE LIKE TO MAKE. AND WHAT HE IS DOING IS ELICITING PARTS AND PIECES IN DIFFERENT ORDERS AND DIFFERENT PLACES OF THE KINDS OF TESTIMONY HE KNOWS THAT --
THE COURT: THAT IS ALWAYS POSSIBLE UNDER RULE 611. WHEN YOU CALL AN ADVERSE WITNESS, YOU ARE GOING TO PICK AND CHOOSE.
MR. MCLOON: BUT WE ARE TALKING ABOUT AN EXPERT.
THE COURT: I DON'T THINK THERE IS ANY DISTINCTION BETWEEN AN EXPERT UNDER 611 AND A LAY WITNESS. AND TO CUT TO THE POINT, THE COURT FINDS ESSENTIALLY ANY COMMON SENSE INTERPRETATION OF ITEM NUMBER 19 WAS THE PLAINTIFF SIMPLY MADE A MISTAKE. AND I MIGHT ADD TO THE PARTIES, I DON'T THINK THE PARTIES LOOKED AT THE COURT'S STANDARD JOINT PRETRIAL ORDER AND THE FORMAT OF IT, BECAUSE YOU LIST WITNESSES THE PARTIES SHALL CALL, MIGHT CALL, OR WILL CALL, AND THIS WAS NOT DONE.
SO I AM OVERRULING THE OBJECTION AND ALLOWING MR. BROWNE TO BE CALLED. LET'S GO TO THE SECOND ITEM.
MR. MCLOON: THANK YOU, YOUR HONOR. THE SECOND POINT WAS WITH RESPECT TO THE WITNESS WHOSE LAST NAME IS SUMMERS AND FIRST NAME IS RENEE SUMMERS. AND I WILL JUST MAKE FOR THE RECORD, BECAUSE OUTSIDE THE PRESENCE OF THE JURY, THE COURT HAS ALREADY ADDRESSED THIS. BUT OUR OBJECTION WAS THAT WE, THE DEFENDANTS, DISCOVERED ONLY WITHIN THE LAST DAY, AFTER HAVING REVIEWED THE VIDEOTAPE OF THE DEPOSITION OF MS. SUMMERS FOR THE FIRST TIME, THAT SHE WAS BEING COACHED.
THE COURT: HAVING BEEN TAKEN, FOR PURPOSES OF THE RECORD, SOME TEN MONTHS AGO, CORRECT?
MR. MCLOON: EXACTLY.
THE COURT: WHAT WAS THE EXACT DATE OF THAT DEPOSITION?
MS. ANDREW: JANUARY 15, I BELIEVE, YOUR HONOR.
THE COURT: VERY WELL. WELL, WHAT RELIEF WOULD YOU REQUEST? WHAT WOULD YOU HAVE THE COURT DO?
MR. MCLOON: OUR RELIEF WAS TO NOT PERMIT THE USE OF THE VIDEOTAPED DEPOSITION BUT TO INSIST UPON THE WITNESS COMING LIVE.
THE COURT: WELL, OBVIOUSLY, HAVING TAKEN THAT DEPOSITION TEN MONTHS AGO AND FIRST RAISING THIS TEN MINUTES BEFORE WE START THE TRIAL, I THINK IF THAT WAS A LEGITIMATE CONCERN, THAT SHOULD HAVE BEEN LONG AGO BROUGHT TO THE ATTENTION OF THE COURT. SO IF THE COURT FELT THAT WAS APPROPRIATE, I COULD HAVE GIVEN THE PLAINTIFF ADDITIONAL TIME TO EITHER RETAKE THE DEPOSITION OR HAVE THE PERSON -- WHERE DOES THAT WITNESS RESIDE?
MR. Szwak: YOUR HONOR, I DON'T RECALL. WE WERE BY TELEPHONE. EVERYONE WAS BY TELEPHONE.
MS. ANDREW: OHIO.
MR. MCLOON: OHIO.
THE COURT: MY UNDERSTANDING, THIS WAS TAKEN BY TELEPHONE. NO ONE ACTUALLY SAW THE WITNESS, AND I THINK EVERYONE HAD A DUTY PROBABLY AS QUICKLY AS THE VIDEO WAS PROVIDED, REVIEW IT AND SEE IF THERE WAS A PROBLEM WITH IT. IT COULD HAVE BEEN BLANK. IT COULD HAVE -- SO, I THINK THAT GOES -- THE JURY IS GOING TO -- YOU CAN COMMENT ON CLOSING THAT SHE WAS OBVIOUSLY COACHED. I THINK IT GOES TO THE WEIGHT THE JURY IS GOING TO GIVE THAT WITNESS' TESTIMONY.
MR. MCLOON: THANK YOU, YOUR HONOR.
THE COURT: THAT'S THE COURT'S FINDING. ANYTHING ELSE?
MR. MCLOON: IT IS MOOT NOW, BUT WE DID ADDRESS OFF THE RECORD AND THE RECORD SHOULD REFLECT THAT BEFORE WE HAD OPENING STATEMENTS THAT THE DEFENDANT HAD REQUESTED THE OPPORTUNITY TO USE SOME DEMONSTRATIVE EXHIBITS THAT HAD BEEN EXCHANGED UNDER THE SCHEDULE THAT COUNSEL HAD AGREED UPON RIGHT AFTER THE FINAL PRETRIAL CONFERENCE. AND THERE WERE OBJECTIONS LODGED TO SOME OF THOSE EXHIBITS. I UNDERSTAND THAT THERE WAS A DELAY IN THE COURT'S RECEIPT.
THE COURT: LET ME RECITE THAT. WE HAVE RECENTLY GONE TO A NEW ELECTRONIC FILING SYSTEM. WHEN THE PLAINTIFF FILED, IT WAS STYLED OBJECTIONS TO THOSE AIDS. THE CLERK'S OFFICE DID NOT ENTER THAT AS A MOTION. AS A RESULT, IT WAS NOT BROUGHT TO MY ATTENTION. MY LAW CLERK LAST NIGHT DELIVERED IT AT HOME AT 7 P.M. THE RESPONSE THAT WAS FILED BY YOUR CLIENT YESTERDAY, WHEN HE SAW THE RESPONSE, I BELIEVE AT APPROXIMATELY 5 P.M. YESTERDAY, IT TRIGGERED TO HIM THERE MUST BE SOME TYPE OF MOTION ON FILE.
THE COURT WAS NOT AWARE OF THIS UNTIL LATE LAST EVENING. NOT ONLY DID I HAVE THAT ISSUE TO DEAL WITH, BUT A FLOW OF OTHER ISSUES THAT HAVE BEEN COMING IN IN THIS CASE. I HAVE NOW LOOKED AT IT A LITTLE MORE CLOSELY DURING THE BREAK, AND I AM GOING TO ALLOW YOU TO USE THOSE AIDS. I THINK MOST OF THOSE COMPLAINTS GO MORE TO THE WHAT WEIGHT, IF ANY, THE JURY GIVES TO THEM. SO I AM GOING TO ALLOW YOU -- YOU DID QUITE WELL IN OPENING, AND I DON'T THINK YOU HAVE DAMAGED YOUR CASE WHATSOEVER. AND THEN THE PLAINTIFFS OBVIOUSLY CAN CROSS EXAMINE WITNESSES IF YOU DON'T THINK THE TIME LINE IS CORRECTLY STATED, OR THE AIDS IN SOME FASHION MISREPRESENT THE RECORD.
GENTLEMEN AND LADIES, I DON'T THINK Y'ALL ARE USING ENOUGH GOOD OLD COMMON SENSE IN THIS CASE. I KNOW THERE HAS BEEN A HISTORY OF THESE CASES, AND PERHAPS SOME EMOTIONS RUN HIGH, BUT AS A RESULT, THE COURT IS BEING MADE A VICTIM OF THESE EMOTIONS. AND THERE'S JUST TOO MANY ITEMS THAT THE ATTORNEYS SHOULD BE WORKING THROUGH. OBVIOUSLY, Y'ALL ARE VERY FINE ATTORNEYS, AND THE COURT SHOULDN'T BE DEALING WITH THESE LITTLE NITPICKY ITEMS THAT I FIND MYSELF FACED WITH HERE ON THE EVE OF TRIAL.
ANYTHING ELSE?
MR. MCLOON: THERE WAS A REMAINING ISSUE. THE PLAINTIFF JUST BROUGHT TO OUR ATTENTION THIS MORNING SOME DEMONSTRATIVES THAT THEY WOULD LIKE TO USE. HOWEVER, IN LIGHT OF THE COURT'S VERY RECENT COMMENTS TO COUNSEL, I THINK WE WILL TRY TO WORK THIS OUT AMONGST OURSELVES.
THE COURT: I AM GOING TO DO ONE OF TWO. I UNDERSTAND THERE HAVE BEEN SOME COLOR CODE MARKINGS ON AN EXHIBIT OR AN AID. I AM GOING TO MAKE ONE OR TWO SUGGESTIONS. IF THERE IS A BLANK ONE, WE CAN HAVE THE WITNESS COLOR CODE THOSE DURING HER TESTIMONY. IF THERE IS NOT ONE, SHE IS JUST SIMPLY GOING TO HAVE TO EXPLAIN ALL THE COLOR CODES. BUT AGAIN --
MR. MCLOON: WE ARE GOING TO TRY TO USE THE COMMON SENSE APPROACH THAT THE COURT HAS JUST SUGGESTED AND TRY TO WORK IT OUT AMONGST OURSELVES.
THE COURT: IT MAKES LIFE A LOT EASIER FOR EVERYONE.
MR. MCLOON: THANK YOU.
THE COURT: YOU KNOW, I HAVE BEEN AT THIS TEN YEARS, AND TWENTY YEARS PRACTICING LAW, AND I AM A LITTLE OLD FASHIONED. I THINK YOU CAN REPRESENT YOUR CLIENT WELL AND IN A PROFESSIONAL MANNER AND YET COOPERATE, USE GOOD JUDGMENT AND GOOD PROFESSIONAL COURTESY, AND IT ACCOMPLISHES A LOT. AND I ASSURE YOU, IF YOUR CLIENT REQUIRES OTHERWISE, YOU ARE GOING TO LOSE MY GOOD WILL. AND I AM TALKING TO BOTH SIDES.
MR. MCLOON: POINT HEARD AND UNDERSTOOD. THANK YOU, YOUR HONOR.
THE COURT: VERY WELL.
MR. MCLOON: THE LAST POINT IS SOMEWHAT IMPORTANT, AND I KNOW THE COURT IS UNDER TIME PRESSURE, SO IF IT IS MORE APPROPRIATE TO TAKE IT UP JUST BEFORE THE JURY COMES BACK IN.
THE COURT: WELL, LET ME HEAR ABOUT IT.
MR. MCLOON: THE COURT HAS RESERVED RULING ON RULE 32 OBJECTIONS. THE PLAINTIFF --
THE COURT: I DIDN'T HAVE ENOUGH INFORMATION TO ADDRESS THOSE ISSUES.
MR. MCLOON: WOULD YOU LIKE TO HEAR NOW OR LATER?
THE COURT: WELL, LET ME HEAR. WHY IS THE PLAINTIFF USING ALL THOSE DEPOSITIONS?
MS. _: WELL, YOUR HONOR, ONE, RULE 32, LARRY BROWN, THAT'S ON A CREDIT DENIAL WITH A MORTGAGE. HE LIVES ALL THE WAY OVER IN DALLAS. THE HUNDRED MILE RULE PREVENTS US FROM BEING ABLE TO BRING HIM OVER.
THE COURT: SO WOULD ALL OF THEM BE THE HUNDRED MILE RULE?
MS. _: YES, YOUR HONOR.
MR. MCLOON: THERE IS NO HUNDRED MILE RULE, YOUR HONOR. THE CURRENT RULE IS THAT THIS COURT HAS THE ABILITY TO SUBPOENA ANYBODY WITHIN THE STATE OF TEXAS.
THE COURT: I THOUGHT THE RULE 32 SAID --
MS. _: RULE 32 SPECIFICALLY TALKS ABOUT THE HUNDRED MILE RULE.
MR. MCLOON: I AM RELYING UPON MY CO-COUNSEL, SO MAYBE I SHOULD TURN THE PODIUM OVER TO HER TO MAKE THE ARGUMENT.
THE COURT: I THOUGHT MAYBE THE COURT IS UNDER THE IMPRESSION WRONGLY, THAT UNDER RULE 32 IF A WITNESS LIVES MORE THAN A HUNDRED MILES FROM THE COURTHOUSE, A DEPOSITION MAY BE USED. THAT IS MY UNDERSTANDING OF RULE 32.
MR. MCLOON: WE HAVE USED IT, YOUR HONOR, AND I THINK THAT WAS THE OLD RULE, AND THE RULE HAS BEEN REVISED. AND AGAIN, I OUGHT TO TURN THE PODIUM OVER TO MY CO-COUNSEL.
MS. ANDREW: YOUR HONOR, THERE IS A CASE RIGHT OUT OF THE EASTERN DISTRICT THAT SPECIFICALLY STATES IF IT'S A TRIAL THAT THE COURT HAS JURISDICTION TO SUBPOENA ANYONE IN THE STATE OF TEXAS.
MR. MCLOON: AND WE SUBMITTED THAT IN WRITING, YOUR HONOR, AS I RECALL.
THE COURT: THAT RULE 32 CLEARLY STATES THAT IF THE WITNESS IS A GREATER DISTANCE THAN A HUNDRED MILES FROM THE PLACE OF TRIAL OR HEARING, OR IS OUTSIDE THE UNITED STATES, YOU CAN USE THE DEPOSITION.
NOW, I AGREE WITH YOU ON THE SUBPOENA POWER, BUT I THINK THAT'S TWO DIFFERENT ISSUES. RULE 32 SIMPLY SPEAKS TO A WITNESS BEING MORE THAN ONE HUNDRED MILES FROM THE COURTHOUSE.
WE WILL LOOK AT YOUR BRIEFS DURING THE NOON HOUR.
MR. MCLOON: RIGHT. BUT I DO BELIEVE THE TWO EXPERIAN WITNESSES DO LIVE WITHIN ONE HUNDRED MILES OF THE COURTHOUSE, YOUR HONOR.
MS. _: NO, THEY DON'T.
THE COURT: IF THEY ARE A PARTY WITNESS, YOU CAN USE THEM UNDER ANY CIRCUMSTANCE.
MR. MCLOON: NO, YOUR HONOR, THAT'S NOT WHAT THE RULE SAYS. THE RULE SAYS THAT IF YOU ARE AN OFFICER, DIRECTOR OR MANAGING AGENT OF THE PARTY, IT CAN BE USED.
THE COURT: SO THESE ARE NOT. THEY ARE SIMPLY EMPLOYEES?
MR. MCLOON: THEY ARE VERY LOW LEVEL EMPLOYEES.
MR. Szwak: BUT THEY DO LIVE OUTSIDE THE ONE HUNDRED MILE RULE. AS THE BIRD FLIES, ALLEN, TEXAS IS MORE THAN A HUNDRED MILES AWAY.
MR. MCLOON: THEY DON'T LIVE IN ALLEN, TEXAS. THEY RESIDE IN PLACES MORE CLOSE TO HERE, AND THEY WERE PROVIDED THE HOME ADDRESSES DURING THE DEPOSITIONS.
MS. _: AND THAT IS CORRECT, YOUR HONOR, AND I GOT IT ON WWW.MAPQUEST AND I ALSO GOT IT ON A COUPLE OF OTHER OF THESE DIRECTIONS, ATLAS. I FOUND OUT SPECIFICALLY THAT THOSE -- AND THAT'S WHY I PUT IT IN THE DESIGNATION, SPECIFICALLY, THAT THERE WAS ONE WITNESS, I THINK IT IS GLORIA HOLT, LIVES IN WYLIE, TEXAS, AND REBECCA HOLT, THAT'S 162.43 MILES. THAT IS OFF OF MAPQUEST.
MR. MCLOON: WELL, YOUR HONOR, THEY ARE IN THE EASTERN DISTRICT OF TEXAS. THEY LIVE WITHIN THIS DISTRICT.
THE COURT: WELL, IS THERE ANYTHING UNDER RULE 32 THAT WAIVES THAT REQUIREMENT, IF A WITNESS LIVES IN THE DISTRICT? I THINK NOT, BUT MAYBE I AM PROVEN WRONG.
MS. _: WELL, THEY CERTAINLY DID NOT OBJECT TO IT IN THEIR PRETRIAL ORDER WHEN WE LISTED THEM AS WITNESSES.
MR. MCLOON: WELL, YOUR HONOR, THE SHOWING OF UNAVAILABILITY ESTABLISHES AT THE TIME OF TRIAL. YOU KNOW, THEY MADE NO ATTEMPT TO SUBPOENA THESE PEOPLE, AND WE ASSUMED THAT IF THEY WANTED THEM THEY WOULD SUBPOENA THEM.
THE COURT: WELL, I THINK I UNDERSTAND EVERYONE’S POSITION. WE WILL LOOK AT IT DURING THE NOON HOUR AND THE BRIEFING ON THIS ISSUE.
MR. Szwak: YOUR HONOR, JUST ONE MORE ISSUE THAT WE BROUGHT TO THE COURT’S ATTENTION. THEY RAISED SOME ISSUE ABOUT THE BANKRUPTCY RECORD, CLAIM WE DIDN’T DISCLOSE IT, SET IT IN FRONT OF THE JURY, SAID THAT WE NEVER PROVIDED IT. WE NOT ONLY DISCLOSED IT, IT WAS AN EXHIBIT N TO OUR OPPOSITION OF THEIR DISPOSITIVE MOTION.
MR. MCLOON: I THINK WE ARE NOW IN THE REALM OF NOT BEING IN COMMON SENSE, YOUR HONOR. I WAS VERY CLEAR THIS IS MERELY A HOUSEKEEPING PROBLEM AND I THINK WE CAN WORK THIS OUT AMONGST OURSELVES.
THE COURT: VERY WELL. TRY TO WORK IT OUT DURING THE NOON HOUR. I STARTED TO SAY, WE QUICKLY WENT FROM WE ARE GOING TO USE GOOD JUDGMENT BACK TO BEING DIFFICULT, LADIES AND GENTLEMEN. AND THE COURT DOESN’T APPRECIATE IT AND THE COURT EXPECTS OTHERWISE.
(RECESS AT 12:05 P.M., UNTIL 1:28 P.M.; OPEN COURT, JURY PRESENT)
THE COURT: PLEASE BE SEATED. YOU MAY CONTINUE YOUR EXAMINATION.
MR. Szwak: THANK YOU, YOUR HONOR.
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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