JACKSON V AEG LIVE July 1

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Jean Seawright
(Human Resources Expert)
Plaintiffs' Expert Witness.
Judge: Katherine Jacson versus !E" #ive. "ood mornin$. %ounsel& 'ill you mae your
appearances(
Mr. anish: "ood mornin$. )rian Panish for Plaintiffs.
Mr. !"yle: "ood mornin$& your honor. Kevin )oyle for Plaintiffs.
Ms. Ste##ins: "ood mornin$. Jessica *te++ins for the ,efendants.
Mr. utna$: "ood mornin$& your honor. -arvin Putnam for the ,efendants.
Judge: .ay.
Ms. Ste##ins: /our honor& 0 1ust 'anted to +riefly rene' my o+1ection. %an 0 as the 'itness +e
excused for a moment(
Judge: !ll ri$ht. -s. *ea'ri$ht& can you step out for a moment(
Ms. Ste##ins: Just for the record& your honor& as you no'& 'e moved in limine to exclude -s.
*ea'ri$ht's opinions. /our honor $ranted that& in part. 0'd lie to rene' the opinions (sic) as to the

methodolo$y. *pecifically& 'hile -s. *ea'ri$ht is an expert in the human resources field& she's 'ored
in that field for a lon$ period of time& she acno'led$ed on the record she's never +een in a case
analo$ous to this one& had never 'ored in the music industry& had very limited advice in the healthcare
industry and never on the hirin$ and retention of independent contractors. !nd she has no other
methodolo$y& in terms of no +ureau of la+or statistics& 'hich she relied on in other cases. )asically&
nothin$ other than 2this is my opinion& and 0 say it's a $ood opinion personally&2 and 0 thin& your
honor& that doesn't meet the standards of %alifornia la'. 0 don't 'ant to $o deeply +ac into this& your
honor& unless you're inclined to revisit the motion in limine. 0 no' 'e have limited time 'ith the 1ury.
)ut 0 'anted to rene' the ar$uments made in the motion in limine for the record& and if your honor is
inclined to reconsider anythin$& 0'm happy to ar$ue further.
Judge: ,id you 'ant to say anythin$(
Mr. anish: 0 1ust incorporate in all the ar$uments. We spent hours on this in pretrial& the court ruled.
3hey made all the same ar$uments that 'ere re1ected. !nd that's all 0 have to say.
Judge: Well& ind of interestin$. *eems to +e very fe' experts 'ho have the ind of 4ualifications that
you're looin$ for.
Ms. Ste##ins: /our honor& it's not 4ualifications& actually.
Judge: .r experience.
Ms. Ste##ins: 0t's not 4ualifications or experience. 0t's that there's no foundation for her opinions. 5or
instance& -s. *ea'ri$ht $ave the opinion in another case in a case relatin$ to people 'ho 'ored in oil
cleanups& and she cited 66 she claimed that that 1o+ 'as safety sensitive& as she's claimin$ this 1o+ is
safety sensitive. )ut in that case& she had a resource that 'as relied on in the industry to identify such.
Here& she does not. *he is recommendin$ here certain +ac$round checs +e done& +ut she admits she
doesn't no' ho' fre4uently those +ac$round checs are done. !nd in her material she relied upon in
her deposition& it sho'ed they are done only in a minority of times. *o there really isn't any foundation
+ecause she has no experience in it personally& and she has nothin$ relied upon in the field to +uild on.
/ou no'& she does have experience in human resources $enerally& +ut not 'ith the inds of opinions
she's offerin$ here& 'hich is the sort of +ac$round checs that should +e run on an independent
contractor +efore retainin$ them for a concert tour. !nd if she made any effort to sort of put them in the
context of the +roader field 'ith relia+le methodolo$y& 'ith the inds of thin$s that a human resources
expert relies upon& for instance& pu+lications +y the society of human resources& or +ureau of la+or
documents& or E.% documents. )ut she didn't& your honor& and really had no +asis for any of her
opinions other than 20've 'ored in the field a lon$ time& so you should tae my 'ord for it& even
thou$h 0've never done anythin$ analo$ous to this.2 and that 'as made +y her o'n admission that
there's nothin$ analo$ous to it.
Mr. anish: !nd interestin$ enou$h& !E" says they've never hired a doctor except for this case. !nd
every+ody says it's not done in the industry& so they're certainly not expert in it.
Judge: 3hat's 'hat 0 find interestin$ a+out the case. )ecause it's done so rarely& you're not $oin$ to
find experts 'ho 66 0 'ould +e surprised if any of your experts can find this exact situation.
Ms. Ste##ins: !$ain& your honor& the issue isn't 'ith her expertise. 5or instance& perhaps hirin$ 66

Judge: Well& 'here do you $et the methodolo$y or 66

Mr. anish: 7o one does it.
Judge: 66 the statistics& if it's 1ust not done that fre4uently(
Ms. Ste##ins: #et me explain& your honor. 5or instance& it may +e some'hat rare for an independent
contractor physician to +e retained on a concert tour.
Judge: .ay.
Ms. Ste##ins: )ut it's 4uite common for physicians to +e retained as independent contractors in other
contexts8 for instance& hospitals& they almost al'ays are& your honor. !nd it's 4uite common for
independent contractors& in $eneral& to +e retained in any num+er of contexts. Pretty much the vast
ma1ority of +usinesses do that. )ut& your honor& -s. *ea'ri$ht 'as una+le to even tal a+out 'hat
happens in those contexts8 for instance& 'hether hospitals run these sorts of +ac$round checs& or
'hether it's customary or not customary in that field. 5or instance& the materials she produced
demonstrated that independent contractors& it's extraordinarily rare for companies to run +ac$round
checs on them of any ind. )ut 'hen 0 ased her& she said& 2'ell& that doesn't matter to my opinion.
-y opinion is 1ust they should have +ecause it's such a uni4ue and special position.2 so she's placin$ it
on 2uni4ue and special&2 your honor& 'ithout any +asis. !nd the issue +ein$& a$ain& 'hat experts do&
your honor& is they $round it in their expertise8 other'ise& their opinions are not helpful to the 1ury. !nd
if she's not +asin$ it on her o'n experience8 she's not +asin$ it on materials pu+lished +y the society of
human resources& 'hich contradicts 'hat she's sayin$8 she's not +asin$ it on the )ureau of #a+or
*tatistics that provides different opinions8 she's not +asin$ it on E.%& 'hich actually +ars some of the
thin$s she said should +e done& it's an anchorless field& and that's 'hat the cases 'arn a$ainst. 3hey
'arn a$ainst an expert 'ho& thou$h 4ualified& has an improper methodolo$y in the instance. !nd that's
the +asis of the o+1ection.
Judge: *ounds lie she has no +asis. 0f she's sayin$ that there's some dan$erous types of fields or
professions 'here +ac$round checs should +e done& she's $rounded in somethin$.
Ms. Ste##ins: Well& that's important& your honor& actually& that the t'o definitions she uses& 2hi$h ris2
and 2safety sensitive2 66 'hen she used those in another case& she actually had citations that the field
called those occupations hi$h ris and safety sensitive. Here& she did not& and there's a reason for that.
0f your honor 'ill remem+er in summary 1ud$ment& there 'ere numerous cases holdin$ that the
practice of medicine is not hi$h ris. *o she's callin$ it hi$h ris. !nd& a$ain& she's not a le$al expert& so
0'm not 66 +ut she has no +asis for that. 0t's not $rounded in anythin$ in her field. *he's $oin$ to $et up
and say it to the 1ury& and that's the ind of opinion that is dan$erous and improper and not 'hat -s.
*ea'ri$ht has done in other contexts 'here she has $rounded it fully.
Mr. anish: We spent three hours on this already pretrial& and it's the same ar$uments that they're
main$. 3he same pro+lem that their !E" 66 as they said& they never did it +efore. 0t's a rare and uni4ue
situation. 3hat's the 'hole +asis of 'hy they shouldn't have done it. 0t's not done.
Ms. Ste##ins: /our honor& !E" has certainly retained independent contractors +efore& and they have a
custom and practice for retainin$ independent contractors& 'hich 'as follo'ed in the case. *o 0 thin
it's a little +it of a misnomer to say !E" #ive had never done it +efore. !nd& a$ain& your honor& if she
had any +ac$round 66 if she had +een involved even in retainin$ independent contractors for hospitals

66 you no'& 0 ased her& 2'hat ind of +ac$round2 66 +ecause she advised t'o medical facilities over
the last 9: years. *he couldn't remem+er 'hat ind of +ac$round checs she recommended for any of
them. *he thou$ht they did some ind of chec for employees& didn't no' if they did checs for
independent contractors. *o there's really no +asis for her to opine 'hat is customary and appropriate
and 'hat is not.
Judge: .ay. Well& 0'm sure the advice you 'ould $ive to a hospital 'ould +e different than one of
these circumstances& 'hich is completely uni4ue. *o 0'm $oin$ to deny the motion and $o for'ard 'ith
-s. *ea'ri$ht.
Mr. anish: .ay. 0s the 1ury here(
%he &"urtr""$ assistant: /es& they are.
Judge: .ay. #et's call them in.
'%he (ury enters the &"urtr""$)
Judge: Katherine Jacson versus !E" #ive. "ood mornin$& everyone.
%he (ury: "ood mornin$.
Judge: Welcome +ac. Hope you had a $ood 'eeend. .ay. #et's continue 66 oh& +efore 'e do& let's
mae your appearances.
Mr. anish: /es. "ood mornin$. )rian Panish for the Plaintiffs.
Mr. !"yle: Kevin )oyle for the ,efendants.
Ms. Ste##ins: Jessica *te++ins for the ,efendants.
Mr. utna$: -arvin Putnam for the ,efendants.
Ms. Cahan: !nd Kathryn %ahan for the ,efendants.
Judge: .ay. 3han you. 7o' you may call your next 'itness.
Mr. anish: 3han you. 3he Plaintiffs call Jean *ea'ri$ht.
Judge: 3han you. /ou may +e$in.
Mr. anish: 3han you.
*ire&t e+a$inati"n #y !rian anish:
;. "ood mornin$.

!. "ood mornin$.
;. What is your present occupation or profession(
!. HR consultant& human resources consultant.
;. !nd for 'hom do you 'or(
!. *ea'ri$ht < !ssociates.
;. %an you tell us a little +it a+out *ea'ri$ht < !ssociates(
!. /es. We're a human resources consultin$ firm and 'or 'ith employers and mana$ement all around
the country& advisin$ them on HR6related matters& includin$ hirin$& coachin$& terminatin$ employees&
and all different areas associated 'ith employment and hirin$ and dealin$ 'ith 'orers.
;. /ou used the term 2HR2 'hat does that stand for(
!. Human resources.
;. !nd 'hat is human resources(
!. Human resources relates to& pertains to the people in any +usiness. !ny of the 'orers in a
+usiness& and all of the different phases involved 'ith 'orin$ for an or$ani=ation. *o that could +e
anythin$ from findin$ a 'orer to hirin$ a 'orer to trainin$ a 'orer& may+e terminatin$ a 'orer.
Just the 'hole life cycle of a 'orer.
;. ,oes your +usiness have clients(
!. /es.
;. %an you 1ust $ive us an idea of some of the types of clients that you have(
!. /es. We have clients in all different industries all around the country. *o 'e have clients in the pest
control industry8 'e have clients that are actually la' firms8 'e have clients that are restaurants8 'e
have clients that are& oh& $osh& car dealerships. !nd 1ust a variety all across the +oard.
;. %an you tell us the names of some of the clients(
!. /es& 0 can. We have presently 66 1ust thin of some that may +e no'n +y people. Well& let's see. We
have 3ierra >erde resources& 'hich is a company out of %alifornia here& a la'n care company8 another
one of those& turfscape. 3hat's out of ohio. We have the +arnes la' $roup out of $eor$ia. We have 66 'e
have some national trade associations that have mem+ers that 'e 'or 'ith& and so one of those is the
$arden center $roup& retail $arden centers all over the country.
;. ,o you have any entertainment6related companies(
!. /es. We have 'ored 'ith 'onder'ors in the past& ripley's +elieve it or not& +oth the a4uarium
and museum. We've 'ored 'ith planet holly'ood out of 5lorida in the past& also.

;. !ctually& 'onder'ors& 'here is that located(

!. Well& they have a location in tennessee and 5lorida.
;. Where are you from(
!. 0'm in a to'n called 'inter par& 'hich is 1ust outside of orlando.
;. 0s that 'onder'ors the one that's lie an upside do'n house in 5lorida(
!. /es.
;. Kind of lie a 66 any'ay& could you tell us& 'hat is your educational +ac$round(
!. 0 have a +achelor's of science de$ree in chemistry from the university of 5lorida.
;. Ho' a+out your professional experience( What have you done in your 'or career& in $eneral(
!. 0n terms of(
;. Professional experience.
!. Experience. Well& 0've +een consultin$ almost ?@ years in this field of HR 0 did tae one year& and 0
'ored inside of an or$ani=ation as a director of human resources.
;. !nd 'hat types of +usinesses or companies have you consulted 'ith( #ar$e& +i$& small 66 can you
$ive us an idea(
!. !ll different types. #ar$e& medium and small. 5or profit8 non6for6profit& and pu+licly6traded
companies8 small startups8 ind of 2mom and pop2 type +usinesses. Just all different types. 3hey all
have 'orers& and they all& oftentimes& need advice and help.
;. What does your consultin$ 'or entail(
!. !dvisin$ o'ners and mana$ement on human resource practices and procedures and policies.
;. %an you +riefly descri+e for us your 'or history( 0n other 'ords& 'here did you 'or and 'hat
did you do(
!. /es. 0 started off at a firm called *ea -ana$ement %onsultants& and that is a mana$ement consultin$
firm. !nd 0 started off there in an administrative role& and 0 +ecame an HR consultant fairly 4uicly.
!nd 0 'ored there a+out seven and a half years and +ecame vice president of that firm. !nd then 0 left
for a year& and that's 'hen 0 'ent inside of a company and 'ored human resources inside of an
or$ani=ation. !nd then from there i set up my o'n firm& and 0've +een doin$ that for approximately 9:
years.
;. .ay. Have you +een responsi+le for the day6to6day operations of

!. 5irm consultin$ 'ith +usiness o'ners& %E.s and people lie that(
!. /es& 0 have.
;. Ho' a+out +ac$round checs and advice on +ac$round checs( Has that +een part of your
experience and 'or(
!. .h& yes.
;. !nd can you 1ust tell us 'hat you mean( What is a +ac$round chec(
!. ! +ac$round chec is 'hen you o+tain information on the +ac$round of a 'orer that you're
$oin$ to hire. !nd so that +ac$round chec could include anythin$ from $ettin$ a ,rivin$ record&
'hich is sometimes called an ->R& or motor vehicle record report. 0t could include a criminal
+ac$round chec8 it could include a credit chec8 it could include verifyin$ the education of a 'orer8
it could include a social security chec. *o there's a variety of different forms of +ac$round checs
that you can o+tain.
;. .ay. 0n the medical field& have you advised any companies in that field(
!. /es& 0 have.
;. What types of companies(
!. 0've 'ored 'ith hospitals. -any hospitals. !lso an orthopedic clinic8 an ur$ent care center.
!. 7ursin$ home& as 'ell.
;. .ay. Just on that issue& let's call it the healthcare related +usinesses& do you no' ho' many there
are in the united states(
!. .h& there's approximately @ 66 0'm sorry& :AA&AAA healthcare facilities. Healthcare6related facilities.
;. 7o'& did 66 did you 'or for a company called massey services( 0 thin you told us a+out that.
!. /es.
;. Ho' lon$ did you 'or there(
!. .ne year.
;. What ind of company 'as that(
!. 3hat 'as a pest control company that provided or had technicians that 'ould $o into homes. !nd
their +usiness 'as to stop +u$s from comin$ in& and 'hen they 'ere there& to ill +u$s.
;. 0s that also lie an exterminator(
!. /es. !lso no'n as exterminator.

;. *ounds +etter than pest control. What 'as your position in that company(
!. 0 'as the director of human resources.
;. !nd ho' lon$ did you have that position(
!. !pproximately one year.
;. What did your 1o+ duties as human resources director entail(
!. 0 assisted the mana$ement of that +usiness 'ith main$ HR6related decisions. *o any decisions
involvin$ people in the company& 0 assisted 'ith. !nd they had +een a client of mine prior to that& so 0
'as familiar 'ith ho' they functioned.
;. !nd at massey& did you hire +oth employees and independent contractors(
!. /es.
;. !nd did they have procedures for checin$ out the employees andBor independent contractors(
!. /es.
;. What did that include(
!. 3hey had a process that included a variety of different elementsC !n application form8 they did a
social security chec8 they did a credit chec8 they also did +ac$round checs. 3hey did intervie's&
multiple intervie's. 3hey also used some personality profiles& and a motor vehicle records chec for
,rivin$ positions. !nd so a variety of different elements& reference checin$.
;. 0n your field& are there professional certifications(
!. 0n my field( 0n human resource consultin$(
;. .r 1ust in the human resources area.
!. 0n the human resources field& yes& there are.
;. ,o you have any or hold any certifications(
!. 0 do.
;. !nd 'hich ones& if any& do you hold(
!. 0 have a certified mana$ement consultin$ desi$nation. 0t's called a %.-.%.& it's referred to as.
;. When did you o+tain that(
!. 0n the year ?AAA.

;. !nd 'hat is that(

!. 3hat is a certification as a consultant. 0 'ent throu$h a process of tain$ some tests and
demonstratin$ my level of experience and no'led$e in my field. !nd so 0'm certified to +e a
consultant. !pproximately less than 9 percent of all the consultants in the u.*. Have the desi$nation as
a %.-.%.
;. Who certifies you as a %.-.%.(
!. 3he institute of mana$ement consultants.
;. !nd you said you had to tae tests to $et that(
!. 0 had to tae a test at the time& yes.
;. What does the desi$nation si$nify(
!. 0t desi$nates competency in my field. *o it's esta+lishin$ 0 have experience and am 4ualified to +e
!. %onsultant.
;. ,o you have to rene' that certification(
!. /es.
;. Ho' often(
!. Every three years.
;. !nd ho' do you rene' it(
!. 0 have to& once a$ain& prove and esta+lish that 0've maintained the credentials that 0 have +y 'ay of
experience and continued learnin$. !nd 0 also have to partae in a process to esta+lish that 0've ept up
'ith ethics& and 0 understand 'hat ethical +usiness practices are.
;. !re you a mem+er of any professional associations(
!. /es.
;. Which ones(
!. 0'm a mem+er of the society for human resources mana$ement& also no'n as s.Hrm.
;. Ho' a+out any trade or$ani=ations(
!. /es. 0'm a mem+er of one called 'orld at 'or& 'hich is a compensation association& and a mem+er
of a 66 $osh& may $et this 'ron$ 66 or$ani=ation for 'omen professionals as 'ell.

;. Have you pu+lished any materials in your field of human resource matters(
!. /es& 0 have.
;. 3ell us 1ust $enerally& 'hat types of materials have you pu+lished(
!. 0've pu+lished a num+er of articles in the field of human resources. 0 actually had a column in a
couple of periodical ma$a=ines for a time& an HR column. !nd 0 'rote a+out a variety of HR topics for
those periodicals.
;. Ho' many pu+lished materials 'ould you estimate you've pu+lished in +oos& hand+oos&
ma$a=ines and such(
!. Well& $osh& 0 did not count. 0 have a ?A6plus pa$e %.>.& and the ma1ority of it is 'ritin$ and
speain$ en$a$ements in the field of HR 0'm sorry. 0 don't have a num+er.
;. !ll ri$ht. Have you pu+lished anythin$ a+out +ac$round checs(
!. 0 have.
;. Have you $iven lectures to state& federal& national trade or$ani=ations(
!. /es.
;. ,oes that re4uire travel(
!. ,id that re4uire travel(
;. /es.
!. /es.
;. #et's tal specifically no' a+out expert 'itness 'or. Have you +een an expert& retained as an
expert 'itness in any other cases(
!. /es.
;. .ay. !nd 'hat percent of your time 'ould you estimate is spent 'orin$ on expert 'itness
consultin$ matters(
!. 0t's a very small percent. 0 have not actually totaled the time& +ut 0 can tell you that it's less than 9A
percent of the revenue that 0 $enerate at my firm.
;. Ho' many times have you +een retained or ased to consult as an expert 'itness(
!. !pproximately 9D times.
;. !nd 'hen is the first time you started to do that(

!. !round the ?AAE& ?AA?.

;. )efore this case& have you ever testified as an expert in a ne$li$ent hirin$ or retention supervision
case(
!. /es.
;. Ho' many cases have you +een retained in that area(
!. 0 'ould say that the ma1ority of the cases that 0 'ored on had an element of ne$li$ent hirin$ or
retention.
;. %an you $ive us an example( #et's say in the +e$innin$& the type of case you 'ere retained on(
!. ! case involvin$ a company that hired a 'orer 'ho murdered a supervisor. !nd in that particular
case& a +ac$round chec had not +een run& and had the company run the chec& they 'ould have seen
that the individual had +een convicted of murder and served ?@ years and had 1ust $otten out of 1ail. *o
that 'ould +e an example of a ne$li$ent6hirin$ case.
;. Have you ever come to court lie this and 4ualified to testify as an expert 'itness(
!. .ne time.
;. Ho' lon$ a$o 'as that(
!. 3hat 'as in the very early years. *o ?AAE& ?AAF. -ay+e it 'as ?AA?. 0n that area.
;. *o this is only the second time you've ever come to court lie this(
!. 3o trial& yes.
;. !nd have you +een hired +y la'yers +oth representin$ the plaintiff& the person +rin$in$ the la'suit&
and the defendant& the person defendin$ the la'suit(
!. /es.
;. Have you ever 'ored 'ith my firm or any firm assistin$ in this case(
!. 7o& 0 have not.
;. Have you ever 66 'hen 'ere you first contacted in this case(
!. 0 'as first contacted in late January. 0 +elieve in my deposition 0 may have said 5e+ruary& +ut 0 'ent
+ac and looed& and it 'as in the late January time frame or 66 late to mid January.
;. Who first contacted you(
!. 0t 'as an individual from the firm of Kosoff& Kosoff < )ieder.

;. What 'as that individual's name(

!. 3hat 'as some+ody 0 only spoe 'ith once& so 0 don't recall her name.
;. .ay. !nd 'ere you ased to revie' materials(
!. !t some point 0 'as& eventually.
;. What 'ere you initially discussin$ 'ith the caller(
!. 0nitially& discussin$ my experience as an HR consultant.
;. Were you ased to consult in some issues that may or may not have +een relevant to this case(
!. >ery +roadly and very $enerally& 0 'as ased a+out& you no'& hirin$ and 66
;. Were you ased to consult eventually on 'hether or not a +ac$round chec on ,r. -urray should
have +een done +y !E" #ive& and& if so& 'hat they should have done(
!. Eventually 0 'as& yes.
;. !nd 'ere you ased to discuss& in helpin$ the la'yers& understandin$ the various components of
human resources policies and procedures(
!. /es& 0 'as.
;. !nd are those the areas in 'hich 'e've ased you to $ive opinions& +ased on your experience and
revie' of the materials& and ad,ress those areas in this case(
!. /es.
;. When did you first receive any documents to revie' in this case(
!. 0 +elieve that 0 received the first document& a confidentiality a$reement& in late January.
;. .ay. !nd 'hat 'as your understandin$ of that(
!. 3hat 0 'as 66 assumin$ 0 si$ned it& that 0 'ould +e a$reein$ to maintain the confidentiality of all the
information and documents in this case.
; and had you 66 have you looed at every sin$le document in this case(
!. 7o& 0'm sure 0 haven't. 0 don't no' all 66 'hat all there are& +ut 0'm sure 0 haven't.
;. !re there specific thin$s that you've revie'ed(
!. /es.
;. Have you revie'ed some depositions(

!. /es& 0 have.
;. Have you revie'ed some trial testimony(
!. /es.
;. Have you revie'ed some emails(
!. /es.
;. .ay. ,o you char$e for your time(
!. 0 do.
;. What do you char$e(
!. GEAA an hour.
;. .ay. %an you 1ust estimate approximately ho' many hours you've spent since +ein$ retained on
this case in revie'in$ materials& $ivin$ your deposition and such(
!. /es. 5rom the point in fe+ruary 'hen 0 received materials& over a four6and6a6half6month period of
time& a little over 9AA hours of time.
;. 7o'& trial testimony. Have you revie'ed the testimony of ,etective .rlando -artine=(
!. /es.
;. ,avid )erman(
!. /es.
;. "ordon -atheson(
!. /es.
;. -r. *ha'n 3rell(
!. /es.
;. Paul "on$a'are(
!. Portions of that one.
;. !nd Randy Phillips(
!. Portions of that one.

;. !nd Prince Jacson(

!. /es.
;. 7o'& have you had meetin$s 'ith the la'yers in this case(
!. 0 have.
;. .ay. When 'as the first meetin$ that you had 'ith any of the la'yers in this case(
! the first meetin$ 'ould have +een 1ust prior to my deposition 'hen 0 arrived in #!.
;. !nd the 'ay it 'ored 'as that you 'ent to the ,efendants' la' office& or our office& do you no'(
!. 0 thin it 'as at your office.
;. .ay. !nd then -s. *te++ins 'ould have taen your deposition and ased you 4uestions8 is that
ri$ht(
!. /es. )ut that 'as at a different office.
;. .ay. #et me 1ust see 'here it 'as at. .ay. 0 thin it 'as at& actually& the ,efendants' office8 is that
ri$ht( .ay. *o 'e all a$ree it 'as at ,efendants' office& and that 'as on april Fth& ?A9E(
!. 3hat sounds correct.
;. !nd you 'ere 4uestioned on this case +y -s. *te++ins(
!. /es.
;. .ay. *o 'e 'ere talin$ a+out the meetin$. *o you told us you had one meetin$ +efore your
deposition(
!. /es.
;. Have you had any meetin$s 'ith any of the la'yers in this case since your deposition(
!. /es.
; ho' many(
!. 3'o.
;. Was that since you've come out to testify in this case(
!. /es& it is.
;. !ll ri$ht. !nd are you testifyin$ here +ased on any experience you have in tour promotions or tour

productions(
!. 7o.
;. #et's tal a+out that. 7o'& have you ever +een retained +y a tour promoter or a concert producer to
do human resources 'or(
!. 7o& 0 have not.
;. Have you ever consulted 'ith such individuals(
!. 7o& 0 have not.
;. ,oes that have any effect& in your opinion& a+out your a+ility to testify a+out human resources
policies and procedures in this case(
!. 7o.
;. Why not(
!. )ecause HR policies and practices and procedures cross over industry lines. !nd that's 'hy you'll
see& for example& human resource mana$ers and directors 'orin$ from one company to another or one
industry to another. 0t's +ecause many of the principles and practices and re$ulations and la's apply
across industry lines.
;. Have you ever heard of a consultant that only consults 'ith entertainment& contract 66 excuse me 66
entertainment concert promoters or producers to hire physicians(
!. 7o& 0've never heard of that.
;. !ll ri$ht. )ased on 'hat you revie'ed in this case relatin$ to !E" #ive& have you ever seen
'hether they ever hired a physician on any prior occasions(
!. 0 didn't see any testimony that indicated that.
;. .ay. 0 'ant to sho' you no' 1ust a demonstrative exhi+it& HIE69& 'hich has +een sho'n to
counsel.
Mr. anish: Is that ",ay- Ms. Ste##ins.
Ms. Ste##ins: %hat/s 0ine.
;. 3his is 1ust a $eneral 66 'e prepared this. 3his has some people and various entitiesC "eneral
-otors& Jniversal& )oise %ascade& -c,onald's and %ounty of #os !n$eles. %an you explain 'hat this
is attemptin$ to illustrate as it relates to your opinions(
!. /es. 3his is essentially sho'in$ that the HR principles apply across all industry lines. *o 'hen
you're talin$ a+out people and 'orers and a +usiness& there are certain practices& certain principles&
that are very consistent and cross industry lines. *o this is 1ust sho'in$ different companies that have

HR practices& and different types of people 'ho may +e in HR& or may 1ust +e 'orers. )ut if 'e're
talin$ a+out people& talin$ a+out 'orers& talin$ a+out HR& it crosses over industry lines.
;. *o& for example& industry practices 66 excuse me. Human resources policies and procedures that
apply to mcdonald's can also apply to $eneral motors(
!. /es.
;. *ame as universal versus the county of los an$eles(
!. /es.
;. 3here's not special6special rules that only apply for certain companies(
!. .h& there may +e& for example& a special overtime exemption that you mi$ht see& may+e& at a car
dealership for a certain type of 'orer that you 'ouldn't see or you 'ouldn't use if you 'ere at mc
donald's. )ut in the +road sense& no. .nly somethin$ very uni4ue lie that. .r if you're a $overnment
contractor& then you mi$ht have some extra thin$s that you have to do.
;. #ie security& for example& if you're exposed to some secrets& that you have& may+e& more of a
chec so you 'on't lea that to someone else(
!. 3hat's ri$ht. /es.
;. !ll ri$ht. 7o'& if you 'ant to run a credit chec on the potential hire& do the rules differ +et'een
mcdonald's and $eneral motors(
!. 7o& they do not.
;. ,o human resources principles advisin$ companies re$ardin$ discrimination& do those differ
+et'een universal and +oise cascade(
!. 7o.
;. 0f you 'ere advisin$ a company a+out hirin$ practice& do you advise that hirin$ practice needs to
consider 'hether there's any potential ris of in1ury to 'orers or applies to the individual that's $oin$
to +e hired(
!. /es& 0 do.
;. !nd 'ould you advise anyone differently& 'hether it +e !E" #ive or federal express or some other
company(
!. 7o& 0 'ould not.
;. 0s it common& as far as you no'& for human resources directors and mana$ement to $o from
industry to industry(
!. /es. We see that all the time.

;. !nd 'hy is that(

!. )ecause& once a$ain& the HR principles and practices are transfera+le from one company to the
next8 from one industry to another. *o you find that an HR mana$er could 'or at one and very easily
move into another industry and assist and apply common& you no'& practices and principles.
;. Have you ever heard of a rhoma youn$(
!. 0 have& throu$h this case.
;. .ay. !nd 'ho is she(
!. *he 'as the HR 66 is the HR expert for the ,efendants.
;. !nd did you revie' her deposition in this case(
!. /es& 0 did.
;. !nd do you a$ree or disa$ree& +oth of you& re$ardin$ standards of care in the human resources field
'hether or not it's common across industries(
!. 0 +elieve 'e a$ree on that.
;. !ll ri$ht. 7o'& 0 'ant to tal a+out& +ased on your trainin$& experience 'ith 'orin$ in the human
resources field& 'hat's the $oal of the human resources function in the hirin$ process(
!. 3he $oal in the hirin$ process is to hire 'orers 'ho are fit for the position and competent to do the
1o+& and 'ho also do not pose a ris of harm to themselves or to others.
;. Why do you consider the harm(
!. )ecause there's ris that's inherent in any position& any 1o+. *ometimes the ris is to the 'orer
himself or herself8 sometimes the ris is to others. )ut there's al'ays ris 'hen you're hirin$ a 'orer.
;. ,oes ris vary& dependin$ on the type of 1o+ duties that are to +e performed +y the employer(
!. /es& indeed.
;. 7o'& $enerally& 'hat does the human resource function 66 'hat does the human resource function
in the hirin$ process entail(
!. What does the function entail(
;. /eah. What do you do(
!. .ay. Well& you 66 first of all& 'hen there's a need to add a 'orer of some type& human resources
'ould normally help to find that 'orer. *o 'here are 'e $oin$ to locate 66 ho' are 'e $oin$ to $et
people( Ho' do 'e attract people to us( .r ho' do 'e find them( *o they help 'ith that& usually

called recruitin$. *ometimes it's called sourcin$. !nd then once 'e find the 'orer& 'e have to have a
process in place for main$ sure that the 'orer is the ri$ht person& is fit& is competent& is a+le to do
this 1o+ safely and 'ithout posin$ a ris. *o 'e have a process normally that helps to determine
'hether or not that's the case. !nd so then human resources 'ould often& you no'& 'or throu$h that
process 'ith candidates.
;. .ay. Ho' a+out the ris portion of the 1o+( What do you do in that respect(
!. Well& you 'ould first have to evaluate the position to determine 'hat the riss 'ere that existed
'ith that $iven position. !nd once you do that& and you understand 'hat those riss are& then you mae
sure that you have a process in place for& you no'& minimi=in$ those riss. #ie a ,river 'ho needed
a %.,.#. license& 'hich is a commercial license& you no'. .n the pu+lic road'ays& drivin$ a +i$& hu$e
truc& you need a %.,.#.& so you +uild that into your process.
;. Ho' a+out +ac$round checs(
!. *ame thin$. ,ependin$ on the ris and the position& you 'ould determine the appropriate types of
+ac$round checs to conduct.
;. .ay. /ou told us a+out the assessments of potential riss. Ho' do you $o a+out evaluatin$ the
position for ris(
!. /ou very carefully& a$ain& loo at the duties involved 'ith the 1o+8 the environment in 'hich the
'or is $oin$ to +e performed.
;. 2Environment&2 'hat does that mean(
!. Where.
;. 3he place(
!. 3he place. -ay+e even the type of e4uipment in the environment that 'ould +e used.
;. Ho' a+out the type of 'or(
!. /es. 3he type of 'or& uh6huh.
;. !nythin$ else(
!. 3he individuals that the 'orer 'ill +e interactin$ 'ith.
;. !nd ho' a+out 'hether or not there's any safety issue related to the 1o+(
!. /es.
;. 7o'& +ased on your trainin$ and experience& ho' do you determine 'hat +ac$round checs& if
any& are necessary to +e done(
!. Well& once you identify 'hat those riss are& and you no' 'hat +ac$round chec information

provides you 'ith& you match the t'o up.

;. 0f you don't evaluate that& ho' do you no' 'hat information you need to as for in the hirin$
process(
!. /ou 'ouldn't. /ou 'ouldn't no'.
;. 7o'& 'hen evaluatin$ potential riss on the 1o+& do you distin$uish +et'een 'hether someone is an
independent contractor or an employee(
!. 7o.
;. Why not(
!. )ecause the ris exists& re$ardless of the la+el of 'hat 'e call the 'orer. 3he 1o+ is the 1o+. !nd so
you evaluate it from the standpoint of 'hat the position involves& not the la+el on the 1o+.
;. 7o'& is part of your 'or in this case to determine 'hether or not ,r. -urray is an employee or
independent contractor(
!. 0t 'as immaterial to my opinion 'hat he 'as 66 'hat his classification 'as.
;. .ay. 2classification&2 'hat is that referrin$ to(
!. 3hat means& a$ain& are 'e $oin$ to call this 'orer a contractor( !re 'e $oin$ to call them a
seasonal 'orer( !re 'e $oin$ to call them a temporary employee( What are they( Re$ular employee(
3here's all different types of la+els.
;. ,oes that matter 'hen you assess the ris(
!. 7o& it does not.
;. !nd 'hy not(
!. )ecause the same riss exist re$ardless of 'hat the la+el is.
;. .ay. 0 'ant to tal a little +it a+out +ac$round screenin$8 oay( 3he +ac$round chec& 'hat is
that(
!. 3hat is o+tainin$ historical information a+out a candidate& a+out a 'orer related to their
+ac$round.
;. %an you $ive us some examples of 'hat that 'ould encompass(
!. /es. !. %riminal history 'ould +e one form of a +ac$round chec 'here 'e 'ould run a criminal
report to determine if there 'ere any convictions in a person's past. 3he ,rivin$ record to mae sure
that they had a valid license and to see 'hat ind of history they had ,rivin$. !. %redit report 'ould
indicate a credit history. 7ot a score& +ut a history. !. *ocial security verification 'ould tell us if the
social security num+er 'as valid and also 'here the person had lived and 'ored in the past. *o those

are some examples.

;. 0s +ac$round screenin$ an important part& in your opinion& in the hirin$ process(
!. /es.
;. Why is that so(
!. Well& you can't mana$e 'hat you don't no'& and if you don't $et the information a+out a 'orer
'ho you're $oin$ to trust 'ith your +usiness and the customers and your clients& then you're puttin$ the
+usiness at ris and others at ris. !nd so it's important to understand in many cases& most cases& 'hat
the history of an individual is +efore you hire them.
;. %an you $ive me an example(
!. .f(
;. .f +ac$round screenin$ and checin$ and 'hy that's important(
!. /eah. /ou no'& if you 'ere to hire a 'orer 'ithout doin$ a +ac$round chec& much lie the
case that 0 shared a moment a$o a+out the individual 'ho had +een in 1ail and served a lot of time and
had +een convicted of murder& and then hire that person 'ithout a +ac$round chec& if that person
then& you no'& harms someone else& and you didn't no' that& and it 'as out there and availa+le& that's
a ris that you 'ould not have had to assume& had you no'n that.
;. 0 'ant to as you some 4uestions a+out your +ac$round specifically 'ith respect to hirin$
practices8 oay(
!. /es.
;. 7o'& do you fre4uently advise clients a+out human resources practices for hirin$(
!. /es& 0 do.
;. !nd ho' lon$ have you done that for(
!. 5or my entire career.
;. !nd 'hen you $ive the advice a+out hirin$ practices& do you tae in account ho' much it's $oin$ to
cost the client to follo' your advice(
!. 7o.
;. Why not(
!. Well& it's really such a small amount& and even if a client 'ere to say to me& 2.h& $osh& that must +e
really outra$eously expensive to do that&2 as soon as 0 share 'ith them the cost& ri$ht a'ay they say&
2oh& that's really nothin$. 3hat's not a +i$ deal at all.2

;. !nd you said the cost is not much. What do you mean +y that(
!. Well& dependin$ on the reports that you mi$ht +e orderin$& the costs can +e as lo' as G@ for a social
security chec or a credit chec. !nd then a criminal +ac$round chec can ran$e from any'here from
G9A or G9? to ?@ or GE@ if there are fees that you have to pay to $et that. )ut it's a very lo' cost.
;. Have you ever heard of the term 2hire smart2(
!. /es.
;. What does that mean(
!. 0 refer to that a lot. 2smart hirin$2 or 2hire smart.2 and that 1ust means& you no'& it's important to
tae the time upfront +efore you en$a$e the services of a 'orer and tae the time to understand 'ho
you're hirin$ and so that you can $uarantee 66 not $uarantee& +ut so you can minimi=e those riss that
are out there& and you can hire fit and competent 'orers. *o tain$ the time upfront. Hirin$ hard&
hirin$ smart.
;. %an you hire smart 'ithout $oin$ throu$h human resources practices(
!. 7ot in my opinion.
;. What's the ris of doin$ that(
!. 3he ris of doin$ that is a situation 'here an individual can +e harmed. !. *ituation& really& lie
this.
;. 7o'& ho' lon$ have you +een $ivin$ your clients advice to evaluate positions and chec
+ac$rounds +ased on that evaluation(
!. -y 'hole career.
;. ,o you advise clients to have one set procedure for checin$ employees versus another one for
checin$ independent contractors(
!. 7o. 0 advise +ased on the duties of the position.
;. %an you $ive us some examples or cate$ories of independent contractors in your experience 'here
+ac$rounds are checed(
!. /es. %a+le television 'orers 'ould +e one example8 home health nursin$ 'ould +e another8 pest
control 'ould +e another one& as 'ell.
;. Ho' a+out coaches(
!. /es. %ertainly. %oaches 'ho 'ould +e coachin$ a team of children& and 'ho may 1ust +e volunteers
in some cases 'orin$ for& may+e& a city lea$ue or& you no'& some other type of or$ani=ation.
;. 7o'& can you $ive me some examples of companies that chec credit for non6financial positions(

!. %ompanies that chec credit for non 66 oh& sure. Well& there's the transportation security
administration. 3he 3.*.!. 3hose are the airport screeners& and they don't have any involvement 'ith
financial 'or& +ut they're all credit6checed. 0t's a re4uirement of their position that they $o throu$h a
credit chec. !nd there's also an or$ani=ation called liveops& and that's an or$ani=ation that employs
a+out ?A&AAA people around the country. !nd they have employees 'ho 'or out of their o'n homes&
and they're the telephone operators in a lot of cases 'ho tae orders off of& not infomercials& +ut if
you're 'atchin$ tv and order somethin$ from the television& you pic up the telephone and mae a call&
0 mi$ht $et an ops tain$ your order. 3hose persons are su+1ect to criminal +ac$round checs and also
credit checs& and they're not handlin$ any money& per se.
;. 0 'ant to as you some 4uestions& and in the 4uestion 0 'ant you to mae one assumption8 oay(
!nd the assumption is& 0 'ant you to assume that ,r. -urray 'as hired +y !E" #ive& at the +ehest of
-ichael Jacson& to perform medical services for -ichael Jacson in connection 'ith the 2this is it2
tour8 oay(
!. .ay.
;. 0 1ust 'ant you to assume that as a fact that 'e've dealt 'ith in this trial.
!. .ay.
;. .ay. 7o'& assumin$ that is true& do you have an opinion& as a human resources professional&
'hether or not !E" #ive failed to follo' ade4uate hirin$ practices and standards 'hen it hired ,r.
-urray(
!. 0 do have an opinion on that.
;. !nd 'hat is your opinion in that re$ard(
!. 3hat they did indeed fail to follo' ade4uate hirin$ practices.
;. .ay. Well& let's $o +ac to 'hat you taled a+out. What 'ould a reasona+le human resources
evaluation of a person in that position entail(
!. 0t 'ould have entailed evaluatin$ the 'or that ,r. -urray 'as $oin$ to +e doin$ and the riss
associated 'ith that position. *o tain$ a loo at 'hat 'as he $oin$ to +e doin$ in his 'or 'ith the
2this is it2 tour( Where 'ould he +e performin$ that 'or( What type of duties( What types of riss
existed(
;. .ay. What type of activities or tass 'ould you evaluate( Would you loo at 'hether the tour
could fail(
!. Jhm& 0 'ould loo at that& yes. .r his role in that.
;. Would you loo at 'here ,r. -urray 'as performin$ the 1o+ duties(
!. .h& yes. /es.

;. What 'as your understandin$ of that in re$ard to this case(

!. -y understandin$ of that is that he 'ould +e performin$ those duties at -r. Jacson's home.
;. What a+out 'hen they 'ent to #ondon(
!. !nd in #ondon& it 'ould +e in another venue& +ut perhaps -r. Jacson's home. He 'as $oin$ to +e
near +y his home and livin$ near his home. *o& yes& similar there +ut in #ondon.
;. Ho' a+out the fact that -r. Jacson had children( ,oes that have any +earin$ in the assessments of
potential ris(
! /es.
;. Why(
!. )ecause if he's 'orin$ out of the home settin$& then he's $oin$ to have access to mr. Jacson's
lifestyle and his children& and& you no'& everythin$ a+out his personal life.
;. Ho' a+out the nature of the relationship +et'een a physician and a patient and 'hether or not that
is an important relationship( 0s that somethin$ that should +e assessed(
!. 3he nature of the relationship +et'een(
;. 3he employee& or 'ho's +ein$ hired& and 'ho they're $oin$ to deal 'ith& if anyone.
!. /es. 0 'ould indeed study the nature of the relationship.
;. Ho' a+out 'hether or not they 'ould +e exposed to confidential information(
!. /es. /es.
;. Ho' a+out 'hether or not there's a potential for a conflict of interest(
!. /es.
;. !nd you have revie'ed& 0 mean& the testimony of ,r. -atheson in this case re$ardin$ conflicts of
interest(
!. 0 have.
;. 7o'& 'ould the assessment of ris& 'hen you apply your no'led$e and experience 66 strie that
4uestion. /ou told us that you have to assess the ris8 is that ri$ht(
!. /es.
;. !nd in this case& 'hen you're assessin$ 66 sorry. 0n this case& 'hen assessin$ the ris& as you say it
should have +een done& ho' 'ould you evaluate the level of the ris that 'as potentially involved 'ith
this position(

!. 0n my opinion& this 'as a very hi$h6ris position.

;. !nd 'hy is that(
!. )ecause the 'or 'as $oin$ to +e performed in -r. Jacson's home8 +ecause he had access to
confidential information& -r. Jacson's lifestyle and his family. !lso& +ecause there 'as medical care
+ein$ administered& and there 'as& you no'& 'orin$ remotely& travelin$. 3here 'ere a num+er of
different riss involved 'ith this position.
;. 7o'& -s. *te++ins 'as 4uestionin$ you in the deposition a+out statistics& 'hat percenta$e of
employers do +ac$round checs in hirin$ people for hi$h ris. !re there such statistics availa+le for
hirin$ individuals in hi$h6ris 1o+s(
!. 3here's not a specific survey that 0'm a'are of that have ever seen 66 that evaluates that in particular.
;. !nd 'hy not(
!. 0 'ish 0 ne' that. 0 don't no' 'hy. 3hey're not conductin$ those surveys.
;. 5or assessin$ 'hat should +e done +y a company 'hen retainin$ or hirin$ an employee&
independent contractor& in a hi$h 66 potentially hi$h6ris position& 'ould statistics determine 'hether
or not they should do that& in your opinion(
!. ! statistic alone( 7o& not at all.
;. Why not(
!. Well& the statistics& it 'ould certainly depend 'ho they 'ere asin$ the 4uestions to& and the nature
of the ris associated 'ith the position that the $iven company 'ould have that 'as +ein$ surveyed. *o
it really 'ould depend on those positions in the survey.
;. .ay. 0 'ant you to 66 'ell& have you seen any testimony as to 'hether or not -r. "on$a'are ne'
that in the past -r. Jacson had some dependency or addictions to various ,ru$s(
!. 0 did see that& yes.
;. .ay. !nd 0 'ant you to assume that he did no' that at some point in time +efore ,r. "on$a'are
66
Judge: *r. G"ngaware.
Mr. anish: I ,n"w. I &aught $ysel0- y"ur h"n"r.
Judge: O,ay.
Mr. anish: I/$ s"rry.

;. 0 'ant you to assume that -r. "on$a'are ne' that fact at some point in time +efore ,r. -urray
'as retained8 oay(
!. .ay.
;. ,id you see that in the testimony(
!. /es& 0 did.
;. !nd 'ould that no'led$e& in your opinion& increase the potential ris of the position for ,r.
-urray(
!. /es& indeed. 0t 'ould elevate the ris even hi$her than it 'as.
;. Why(
!. )ecause no' the or$ani=ation that is retainin$ the 'orer no's the potential that's out there for
there to +e harm to the artist. !nd so 'ith that no'led$e& no' they really no' much more than 1ust
assessin$ the 1o+. 3hey have some specific and particular information a+out the parties that 'ould&
a$ain& elevate that ris.
;. 0s that common8 that an employer 'ould have that specific no'led$e(
!. 7ot usually.
;. !nd 'hat ind of +ac$round chec do you +elieve should have +een conducted(
!. 0 'ould recommend and +elieve that they should have conducted a criminal +ac$round chec.
;. !ll ri$ht. #et me stop you ri$ht there. 0 'ant you to assume ,r. -urray had no criminal history8
oay(
!. .ay.
;. Just +ecause you chec it out& see someone 'ho doesn't have a criminal history& does that eliminate
doin$ other steps(
!. 7o. .h& no. 3hat 'ould +e one of them.
;. What else(
!. 0 'ould have recommended a credit chec for ,r. -urray& and a motor vehicle records chec& and a
social security verification.
;. !nd re$ardin$ credit checs& 'hy do you +elieve that should have +een done here(
!. )ecause in this particular situation& under the circumstances that -r. 66 ,r. -urray 'as +ein$ hired&
he 'as in a position 'here he 'as administerin$ medical care& +ut he 'as +ein$ paid& there 'as an
a$reement 'here he 'ould have +een paid +y a company that had the a+ility to stop the sho'& so to

spea& to stop the production of the 2this is it2 tour& and had that happened& then ,r. -urray 'ould have
+een out of 'or. He 'ould have +een una+le to receive any compensation. !nd so he 'as in a
conflict6of6interest situation 'here he had to administer this medical care and treat the patient& +ut he
had to do it in a 'ay that 'ould have +een satisfactory to the people payin$ him.
Ms. Ste##ins: I/$ g"ing t" "#(e&t and $"1e t" stri,e as #ey"nd the s&"2e "0 this e+2ert/s
e+2ertise- and it/s &u$ulati1e.
Mr. anish: I thin, I/$ g"ing t" lay the 0"undati"n with the ne+t 3uesti"n. Can I as, the ne+t
3uesti"n 0irst.
Judge: O,ay. As, the ne+t 3uesti"n.
;. !nd as far as the conflict6of6 interest situation& are you relyin$ on that specific 66 or the opinions ,r.
-atheson $ave in this case(
!. /es.
;. /ou're not a medical doctor& and you're not $ivin$ independent opinions a+out the assessment of
the conflict of interest for ,r. -urray in this case8 is that correct(
!. 3hat's correct.
;. )ut you are& as part of your opinion& relyin$ and considerin$ the independent opinion of ,r. "ordon
matheson(
!. /es.
;. .ay. 7o'& in revie'in$ the records in this case as a human resources professional& have you seen
any indication that !E" #ive& either formally or informally& assessed the position for ris +efore it
hired ,r. -urray(
!. 7o. 0 sa' no evidence of that.
;. 7o'& 0 'ant you to assume that it does matter if !E" 66 strie that 4uestion. 5or the purposes of
your opinion& 0 'ant you to assume that it matters 66 one more time. ,oes it matter if !E"& in your
opinion& classified ,r. -urray as an employee or an independent contractor(
!. 7o.
;. !nd 'hy not(
!. )ecause& once a$ain& re$ardless of the la+el on the 'orer& the ris exists.
;. 7o'& did you revie' the trial testimony of -r. *ha'n trell& the $eneral counsel of !E" #ive(
!. /es& 0 did.
;. !nd did you have an understandin$ as to a position that -r. 3rell 'as desi$nated in this case as& as

far as +ein$ the person to spea on +ehalf of the company and the person most no'led$ea+le for the
company in a specific area(
!. /es.
;. !nd 'hat 'as that area& +ased on your understandin$ and revie' of -r. 3rell's testimony(
!. 0 no' it included HR there may have +een other areas as 'ell& +ut human resources& HR& 'as one
of them.
;. .ay. !nd do you no' 'hether -r. 3rell has the +ac$round in the area of human resources(
!. 0 don't +elieve he does& from 'hat 0 read.
;. .ay. !nd did you revie' an exhi+it that -r. 3rell testified re$ardin$ the policies and procedures
of !E" #ive 'ith respect to the hirin$ of employees and independent contractors(
!. /es.
;. .ay.
Mr. anish: 4"ur h"n"r- that is e+hi#it 567- whi&h I d"n/t ,n"w i0 we/re (ust $ar,ing that "r
they $ar,ed it. *id y"u $ar, it as 567.
Ms. Ste##ins: I d"n/t re&all. It/s a de$"nstrati1e- and 567 w"uld #e a lainti00s/ nu$#er.
Mr. anish: I d"n/t ,n"w that there/s a nu$#er- either way. !ut 0"r the 2ur2"ses "0 identi0i&ati"n
"0 this e+hi#it- 0"r the re&"rd- I w"uld li,e t" $ar, it as e+hi#it 567. And I ha1e a #l"wu2- and
I/1e gi1en Ms. Ste##ins a &"2y "0 the e+hi#it.
Judge: Oh- y"u/re $ar,ing the #l"wu2 as 567.
Mr. anish: 4es.
Judge: O,ay.
Ms. Ste##ins: I #elie1e this was a de$"nstrati1e "riginally- s" I/$ n"t sure i0 it/s #een $ar,ed as
an e+hi#it "r n"t.
Mr. anish: I understand that. !ut 0"r the 2ur2"ses "0 this "ne- I want t" identi0y it. Is that
",ay.
Ms. Ste##ins: 4es.
Mr. anish: O,ay. %han, y"u.
(Plaintiffs' exhi+it no. HIE& a demonstrative entitled& 2!E" process to chec out people&2 'as mared
for identification.)

Judge: S" when y"u sh"wed it- did it 88 was it gi1en a nu$#er.
Ms. Ste##ins: A&tually- y"ur h"n"r- I d"n/t re&all.
Mr. anish: I thin, it was gi1en a nu$#er.
Ms. Ste##ins: I &an 0ind "ut at the #rea,. And i0 there is "ne- we &an tell y"u.
Judge: All right.
Mr. anish: All right. 9irst "0 all- I/$ g"ing t" 2ut this s" e1ery"ne 88
Judge: O,ay. 4"u &an turn it that way 'indi&ating). I d"n/t ha1e t" see it.
Mr. anish: Can y"u see it- Ms. Ste##ins.
Ms. Ste##ins: :ell- ,ind "0.
Mr. anish: Can y"u see it.
Mr. utna$: :e ha1e a &"2y.
Mr. anish: I want y"u t" #e a#le t" see it.
Ms. Ste##ins: %hat/s 0ine. I &an see it.
Mr. anish: O,ay.
;. *o 1ust to reorient 66 0 +elieve 66 and 0'm sure -s. *te++ins 'ill correct me if 0'm 'ron$ 66 this is an
exhi+it she used 'ith -r. 3rell. !nd 0 +elieve 'hat they called this is !E" 66 0 'rote 2Process to chec
people out.2 so 0'll 1ust use that as my term& not !E" #ive. )ut& first of all& this procedure here
(indicatin$)& did you revie' the !E" #ive employee hand+oos and policies and procedure +oos(
!. /es& 0 did.
;. ,id you see this any'here listed in 'ritin$ in the company policies and procedures(
!. 0 sa' some of the items listed on the left side in that hand+oo.
;. ,id you see any 'ritten policies or procedures that existed at the time that ,r. -urray 'as hired
relatin$ to independent contractors contained 'ithin any 'ritten documentation prepared +y !E"
#ive(
!. 0 did not.
;. 0n your opinion& as a human resources professional& do you thin it's important that such
procedures& if in fact they exist& should +e made and placed in 'ritin$(
!. /es& 0 do.

;. !nd 'hy is that(

!. *o that they can apply them 'ith consistency so that everyone no's 'hat the process is and can
follo' the process.
;. .ay. *o 66
Mr. anish: Can I a22r"a&h the witness- y"ur h"n"r.
Judge: 4es.
;. .ay. *o let's 1ust tal a+out 66 0 don't no' if they said 2chec it out2 or 0 said it& so let's call this
!E" #ive 66 oh& this is the 'ay they did it. .ay. 3his is exactly their exhi+it.
Mr. anish: Is that right.
Ms. Ste##ins: I thin, s"- yes.
Mr. anish: I th"ught I $ight ha1e &hanged it- #ut I didn/t.
;. *o 'e're talin$ a+out 'hat !E" calls their process to chec out people8 all ri$ht( /ou 'ith me(
!. 0 am.
;. .ay. 0n your opinion& does this exhi+it& no. HIE& testified to +y -r. 3rell& set forth ade4uate
procedures and processes for checin$ out 'orers(
!. 7o& it does not.
;. .ay. Just $enerally speain$ 66
Judge: I/$ s"rry. Is it ade3uate 0"r #"th e$2l"yees and inde2endent &"ntra&t"rs.
Mr. anish: I/$ g"ing t" get there.
Judge: Oh- I/$ s"rry. Ju$2ing the gun.
Mr. anish: :e/re n"t g"ing #a&, t" 9riday n"w- are we. S"rry.
;. 7o'& did you 66 is it commonly accepted 66 or strie that. Just explain to us& in the human resources
field& 'hat does it $enerally mean to 2chec out2 someone(
!. 3hat 'ould mean& $enerally speain$& to verify 'hether or not the 'orer 'as fit for the position
and competent to do the 'or& and 'hether or not he or she poses a safety ris to himself or to others.
;. 0s it a commonly6accepted human resources practice that there's a difference +et'een findin$ a
candidate and checin$ the candidate out(

!. .h& yes.
;. What's the difference(
!. Well& findin$ a candidate& you don't have a candidate yet to chec out. *o findin$ is 'hat 0 'as
sayin$ +efore a+out recruitin$ and 1ust locatin$ a 'orer. 3hat's not checin$ them out& it's 1ust
identifyin$ 'here 'e're $oin$ to $et them.
;. #et's tal a+out specifically the left side of the exhi+it 'here it says& 2employees.2 and looin$ at
the 2employees2 side of the chart& the steps descri+ed there reflect the standard resources& practices& for
checin$ out employees(
!. 0 'ould say that there are some there& yes.
;. .ay. !nd 0'd lie you to& if you 'ould& tae that red pen 0've provided you& and let's $o throu$h the
specifics and see 'hether or not& in your opinion& these procedures are for checin$ out people& as !E"
states.
!. %an 0 come do'n here(
;. /ou can& +ut 66 let me help. !nd you've $ot to +e careful that people can see 'hat you're doin$.
!. .ay.
;. !ll ri$ht. 3he first one is& 0 thin& 21o+ posted28 is that ri$ht(
!. /es.
;. .ay. 7o'& does that have anythin$ to do 'ith checin$ someone out 66
!. !nd 0'm $oin$ to 'rite on here( %an 0 do that(
;. 66 in your opinion( /es.
!. -y opinion& no& that does not.
;. !nd 'hy not(
!. )ecause& a$ain& you're 1ust puttin$ a 1o+ up on a +oard. Postin$ means postin$ a position on the
internet& mi$ht +e a +ulletin +oard& +ut you don't have anyone to chec out yet. *o you're 1ust
advertisin$. 0t's a +etter 'ay of looin$ at it. Postin$ a 1o+ is 1ust advertisin$ a 1o+. *o you're not
checin$ any+ody out +y doin$ that.
;. )ut you don't have any criticism that you can post a 1o+8 ri$ht(
!. .h& no& no& no. 7ot at all.
;. 7o' let's loo at the second one.

!. Jh6huh.
;. ,o you 66 2intervie' and resume.2 does that have anythin$ to do 'ith checin$ someone out(
!. /es. 0 +elieve that does.
;. !nd tell us ho'.
!. Put a 2yes2 there. )ecause you are meetin$ 'ith the individual. !nd assumin$ you conduct an
ade4uate intervie'& you're $oin$ to learn a+out that person and as them 4uestions a+out their
+ac$round and sills and experience. *o that's part of an ade4uate hire process& is a thorou$h
intervie'.
;. Ho' a+out verify employment 66 0'm sorry. 2verify employa+ility2(
!. 0'm $oin$ to say that that is 2yes&2 althou$h most of the time 66 'ell& it has to +e done after the
person's hired. *o if it's referrin$ to that 06H process& is a person eli$i+le to 'or in the united states&
you do that after hire.
;. What is 06H(
!. 3hat's the immi$ration form that confirms and verifies that a 'orer is eli$i+le to 'or in the u.*.
!nd also confirms their identity. 3hat's a re4uirement +y la'.
;. .ay. !ll ri$ht. 7ext one is 2chec references and 'or history.2 'ould that +e checin$ someone
else(
!. /es& that 'ould +e.
;. !ll ri$ht. Ho' a+out 2criminal +ac$round chec if 'arranted2(
!. /es& that 'ould +e.
;. Ho' a+out 2credit chec if hired for financial position2(
!. 0'm $oin$ to say to that one 66 0'm $oin$ to say that's 2may+e.2
;. !nd 'hy do you say& 2may+e2(
!. 0 say 2may+e2 +ecause there are circumstances 'here a credit chec& in my opinion& should +e run
even thou$h it's not necessarily a financial position& lie the 3.*.!.& for example& or a home health
'orer& for example.
;. .ay. Ho' a+out 2o+li$ations +ased on employment relationship2(
!. 3hat one& 0'm not even certain 'hat that means. *o 0'm $oin$ to have to put 2unno'n2 to that one.
0 don't no' 'hat that means.
;. !ll ri$ht. !nd 'hen you looed at the !E" documents& does this chart omit any other important

steps in the !E" hirin$ process(

!. /es.
;. .ay. 0 'ant to sho' 66 and 0'll 1ust put it over here 66 exhi+it HDI6ED to EH& 'hich is part of the
!E" hand+oo. 0 thin -s. *te++ins has that. 0'm not sure if that's in evidence or not yet.
Ms. Ste##ins: I d"n/t ,n"w i0 it is "r n"t.
Mr. anish: I/$ s"rry.
Ms. Ste##ins: I d"n/t ,n"w i0 it is "r n"t.
Mr. anish: :ell- i0 it isn/t- I w"uld li,e it t" #e. Is that ",ay- Ms. Ste##ins.
Ms. Ste##ins: I d"n/t ha1e an "#(e&ti"n t" the e+hi#it- #ut I $ay ha1e an "#(e&ti"n- de2ending "n
h"w y"u 2lan "n using it. %here are s"$e that a22ly t" AEG Li1e and s"$e that d"n/t. It/s a
$ulti &"$2any8wide hand#"",.
Mr. anish: All I/$ as,ing is i0 y"u "#(e&t t" the e+hi#it.
Ms. Ste##ins: I d"n/t "#(e&t t" the e+hi#it. *e2ends h"w y"u use it.
Mr. anish: :ell- that/s really n"t 88 either y"u "#(e&t "r y"u d"n/t.
Ms. Ste##ins: :ell- de2ending "n the 0"undati"n- and what the witness is g"ing t" testi0y a#"ut.
Judge: It says- ;AEG; at the t"2. :hat d"es it say underneath it.
Mr. anish: It says- (ust li,e their &hart says- ;AEG 2r"&ess; 88
Judge: <"ld "n.
Mr. anish: :e/ll gi1e y"u the e+hi#it.
Ms. Ste##ins: 4"ur h"n"r- it $ay #e easier t" e+2lain in a 3ui&, side#ar. I d"n/t want t" ta,e u2
the ti$e unne&essarily. It $ay #e that I d"n/t ha1e an "#(e&ti"n- de2ending "n what Mr. anish is
2lanning "n d"ing.
Mr. anish: It/s their 2"li&ies and 2r"&edures. *" we ha1e t" g" t" side#ar.
Judge: It d"esn/t say ;AEG Li1e-; d"esn/t say- ;AEG-; it (ust says- ;AEG; 88
Mr. anish: I0 y"u l"", at the #ates sta$2 at the #"tt"$ 88
Judge: G" ahead.
Mr. anish: 88 it/s 2r"du&ed #y AEG Li1e.

Judge: 4"u &an use it. And i0 y"u want t" "#(e&t and say it d"esn/t a22ly t" "ther AEG entities 88
Ms. Ste##ins: "rti"ns "0 it. %hat/s the issue.
Mr. anish: I/$ s"rry.
Ms. Ste##ins: I said 2"rti"ns "0 it d"= 2"rti"ns d"n/t.
Judge: I0 y"u want t" e+a$ine and say "nly s"$e "0 it- y"u &an d" it.
Mr. anish: On the #"tt"$- it says- ;AEG Li1e r"du&ti"n.; All right.
;. *o let's 1ust tae a loo at it. !nd 'hat 0 'anted to specifically 66 0 no' you can't really see the
other one. 3his is 2!E" Human Resources Policy -anual.2 is it common that companies have human
resources policies and manuals(
!. /es.
;. 0s that somethin$ that you 'ould advise a company to have(
!. /es.
;. Would you advise a company to have that in 'ritin$ or 1ust people to memori=e(
!. 7o& no. 0n 'ritin$.
;. Why should it +e in 'ritin$(
!. *o everyone no's 'hat the +oundaries are and 'hat the policies are and 'hat the rules are for
'orin$ there.
;. .ay. 0f 'e 1ust loo no' at the second pa$e.
Judge: Can she ha1e a seat.
Mr. anish: 4eah- sure. %han, y"u.
;. !ll ri$ht. 0f 'e loo on the second pa$e& it says& 2ne' hire procedures.2 /ou see that(
!. 0 do.
;. 5irst one& it says& 21o+ description& employment28 ri$ht(
!. /es.
;. !nd then it says& 2post6re4uisition procedures&2 and then it $oes to 2postin$28 ri$ht(
!. /es.

;. !nd if 'e $o to the next pa$e& tals a+out 2intervie'&2 2+ac$round checs2 and such. /ou see that(
!. /es.
;. !nd it $ives& +asically& under no. 99 66
Mr. anish: I0 we &"uld #l"w that u2.
;. 66 'hat $enerally 'ill +e consisted of and verifyin$ employment of an individual. /ou see that(
!. /es.
;. !ll ri$ht. !nd this says thatC 2if 'hat the candidate is applyin$ for is mana$ement or security
sensitive& a more thorou$h +ac$round2 and it lists 2criminal& d.-.>.& employment and credit chec28
ri$ht(
!. /es& it does.
;. !nd this is 'hat you're talin$ a+out 'hen you say& 2sensitive2( ,o you 1ust mean someone that
deals 'ith money(
!. 7o.
;. Why not(
!. )ecause riss exist& re$ardless of someone 1ust dealin$ 'ith money. !nd a credit chec can reveal
information related to that position& even thou$h they may not +e 1ust handlin$ money.
;. !ll ri$ht. #et's $o to the next pa$e. 3here's another criteria that they list for checin$ out people.
7o. 9?& 2dru$ screen(2 you see that(
!. 0 do.
;. 3hat's not on that exhi+it8 ri$ht(
!. %orrect& it's not.
;. !ll ri$ht. 7o' let's $o to the second 66 to the ri$ht side of the exhi+it. 0 thin that 'as HI@ 66
Mr. !"yle: 67.
Mr. anish: 567. I/$ s"rry.
;. 66 'hich is the independent contractor process of !E" it says& 2!E"2 at the top8 ri$ht(
!. /es& it does.
;. !nd did you find any'here in this 'ritten policy manual any of the documents 'here any of these

procedures are spelled out in 'ritin$(

!. 7o.
;. 7o'& 0'd lie to loo at that chart& if 'e could.
!. .ay.
;. ,o these 66 let's 1ust say these items listed& in your opinion& do these reflect steps that reflect some
standard& human resources procedures& for checin$ out independent contractors 66
!. 7o.
; 66 in your opinion(
!. 0n my opinion& no.
Mr. anish: I wanted t" as, a 3uesti"n. It d"esn/t $atter. Are we ta,ing a #rea, "r n"t.
Judge: :e started at ar"und 1>:>>.
Ms. Ste##ins: Ar"und 1>:>>. Little a0ter.
Mr. anish: :e d"n/t need t".
Judge: :e &an ,ee2 g"ing 0"r an"ther 88 at least an"ther 1> $inutes.
Mr. anish: Oh- yeah. N" 2r"#le$.
;. .ay. *o 'e're on this 2independent contractor2 side. *o let's tae the first three to$etherC 2previous
'orin$ relationship 'ith !E" #ive or no'n to the artist or no'n in the industry.2 do those reflect a
standard human resource practice for checin$ out a 'orer(
!. 0n my opinion& 0'm $oin$ to $roup these to$ether +ecause the 'ord 2or&2 it's one or the other. *o as a
result of that& 0'm $oin$ to say& 2no.2 and that is 66
;. Why(
!. )ecause& a$ain& it has to do 'ith findin$ the 'orer. 0t's lie postin$ a position& +ut in this case it's
sayin$& 2oh& 'e have some+ody 'ho can do this 'or& and they came to us as a referral from this
person.2 so it's lie a referral source& findin$ that person. *o it isn't checin$ them out and verifyin$
'hether they're fit and competent and a+le to do the 1o+ 'ithout posin$ a ris of harm& it's 1ust sourcin$
them& findin$ them.
!. Way to locate them.
;. !re there any criteria lists that listed that the 66 either !E" #ive& the artist& or the industry 'ould
have had to revie' and consider +efore recommendin$ this individual(

!. 7o.
;. !ll ri$ht. 7o'& the next one is called 2re4uirin$ licenses or permits.2 you see that(
!. 0 do.
;. !nd is that& in your opinion& somethin$ that is part of a process to chec out an individual(
!. 0n my opinion& no& it is not.
;. !nd 'hy not(
!. Well& +ecause simply re4uirin$ that someone has a license is not verifyin$ that that license is valid8
verifyin$ that it meets 'hatever criteria you need to have for that 1o+. *o it's lie looin$ at the license.
Here 'e have verifyin$ (indicatin$)& and here 'e have re4uirin$ it (indicatin$). *o in my opinion& no& it
does not.
;. Ho' a+out the next one& 2fully insured2(
!. 0'm $oin$ to say that that is 2no.2 !nd in fact& 0'm $oin$ to add here& you no'& on there&
2noB+enefits !E"2.
;. What do you mean +y that(
!. /es. 7ot only is it not part of a process to chec out people& +ut ensurin$ that someone has their
o'n insurance really protects !E" it doesn't do anythin$ to chec out a person. 0t's protection for !E"
;. Ho' a+out the next thin$ that's listed& 2indemnification provisions2( ,oes that have anythin$ to do
'ith 'hether someone is competent or fit to perform their 1o+ duties(
!. 7o& it does not.
;. !nd 'hat are you 'ritin$( 3ell us 'hat you're 'ritin$.
!. 0'm 'ritin$ the same thin$ 0 'rote a+ove& 'hich is 2no2 and that that 2+enefits !E"2
;. .ay. /ou can tae your seat for a minute& please.
!. .ay.
;. !nd 1ust $enerally 66 oh& 0 missed one. 2o+li$ations laid out in the contract.2 in your opinion& is that
a process that checs out someone(
!. 7o& not at all.
;. Why not(
!. 0t's 1ust a document that they 'ould si$n that is a contract layin$ out 'hat they're $oin$ to do. )ut
that's after the fact8 it has nothin$ to do 'ith checin$ them out.

Mr. anish: All right. N"w- I/$ g"ing t" a22r"a&h here- and I/$ (ust g"ing t" write the nu$#er
s" we ,n"w. I/$ writing in the right8hand &"rner- e+hi#it 567.
;. 7o'& 2indemnification provision&2 you see that(
!. /es.
;. !re you familiar 'ith 'hat an indemnification procedure is(
!. Jhm& 0'm familiar 'ith 'hat it means.
;. What is your understandin$ of 'hat it means(
!. 0t simply means that if !E" re4uires an indemnification provision in a contract& that means that
they're sayin$ to the 'orer& 2you are $oin$ to assume the lia+ility in any situation& or 'hatever
situations are defined& instead of us. *o you're $oin$ to release us from any lia+ility that mi$ht occur
that 'e mi$ht +e privy to or part of.2 that's a nonle$al definition& +ut that's my HR understandin$. /eah&
not a le$al definition at all.
;. !ll ri$ht. 7o'& +ased on your human resources trainin$ and experience that 'e've $one over& can
you $ive an example of ho' usin$ a process lie this can lead to harm(
!. /es& 0 can. We 1ust apply this process. 0'll $ive an example of ho' this 'ould play out. 0f 0 o'ned a
66 let's say a trucin$ company& and 0 employed 'orers& and 0 had a process for verifyin$ that my
'orers 'ere fit and competent to drive. !nd this may +e they 'ere ,rivin$ lar$e vehicles on the road
and main$ deliveries. !nd 0 no' the importance of main$ sure that they have a valid driver's
license and that they don't have anythin$ in their ,rivin$ history that 'ould pose a ris. !nd so 0 have a
process that's ade4uate. 0 do an intervie' and an application form8 0 do reference checin$& and 0 run
+ac$round checs& includin$ a motor vehicle history. !nd so that's my process& it's ade4uate. )ut then
0 $et +usy& and may+e it's a seasonal situation 'here 0 no' need to mae a lot of deliveries& and 0 need
to do it 4uic. -ay+e it's around the holidays. !nd 0 need to $et some 'orers fast& and 0 1ust don't
have time to $o throu$h the process that 0 have for hirin$. !nd 0've heard that there are ,rivers that are
independent contractors out there& and so 0 thin& 'ell& you no'& 0 only need them for the season& it's
1ust temporary& and 0 need them 4uic. !nd so 0 no' they're out there& and it's common in my industry
to have independent contractor drivers& so 0'll $et some independent contractor drivers to help me. *o 0
as some people in the industry& and so may+e they're no'n in the industry& and 0 $et a referral. 0 have
some people come in& and& a$ain& 0'm in a hurry& hi$h season& $ot to $et $oin$ here. *o they're
independent contractors& so all 0 have them do is si$n a contract& and 66 1ust lie the !E" process& to
sho' me their license. 7o'& un+eno'nst to me& one of the people 'ho comes in as an independent
contractor has a history on his ,rivin$ record 'here he has multiple ,.J.0.* and recless drivin$. !nd
he also has a suspended license. )ut 0'm not doin$ a chec on his license +ecause he's an independent
contractor. !nd so 0'm 1ust $ettin$ 66 he's sho'in$ me his license& and 0 can see he has a license. !nd so
0've 66 you no'& 0've re4uired to see the license& and 0've had him si$n a contract& and 0 put him out
there on the road. 7o'& that 'orer is out on the road drivin$ and doin$ the same 'or& you no'& as
my other employees are doin$& and that 'orer su+se4uently has a 66 $oes on a drinin$ +in$e one
ni$ht and reports to 'or the next mornin$ and ends up in an accident 'here he ills some+ody. !nd so
'hen that happens& there 0 am as the employer& looin$ +ac& sayin$& 2.h& my& it really 'asn't a+out the
la+el.2

;. !nd that's 'hat 0 'ant to as you. ,oes the la+el of ho' you characteri=e this individual& from a
human resources perspective& does that chan$e 'hat you +elieve that employer should do +efore hirin$
or retainin$ that individual(
!. 7o& not at all.
Ms. Ste##ins: I/$ g"ing t" "#(e&t t" any "0 this as &alling 0"r a legal "2ini"n "r &"n&lusi"n as t"
whether inde2endent &"ntra&t"rs "r e$2l"yees are treated the sa$e. As y"ur h"n"r ,n"ws-
they/re n"t- and she/s *ri0ting int" that area.
Mr. anish: I/$ n"t saying that at all.
Judge: O1erruled.
;. Whether you call someone an independent contractor& an employee& a part6time employee& exempt
employee& in your opinion from a human resources perspective and the employer's o+li$ations& does
that chan$e(
!. 7o& it doesn't.
;. ,o la+els mae any difference& in your opinion(
!. 7ot in this case& no. 7ot for hirin$ and ensurin$ they're fit and competent& no.
;. !nd is part of that e4uation checin$ out the 1o+ that they're $oin$ to do( 0n other 'ords& assessin$
the potential ris(
!. 3hat's ri$ht. 0t's the same.
Mr. anish: All right. N"w- ta,e a #rea,- 1> $inutes.
Judge: 4es- we sh"uld. 1> $inutes.
'!rea,)
'%he (ury enters the &"urtr""$)
Judge: Katherine Ja&,s"n 1ersus AEG Li1e. %han, y"u. 4"u $ay &"ntinue.
Mr. anish: %han, y"u- y"ur h"n"r.
;. 7o'& -s. *ea'ri$ht 66 strie the 4uestion. !s an independent contractor& can they cause as much
dama$e as an employee(
!. .h& yes.

;. 7o'& are you sayin$& in your opinion& that !E" #ive needs to +ac$round chec every sin$le
independent contractor hired in the same 'ay you're sayin$ a+out ,r. -urray(
!. 7o.
;. Where it says& 2fully insured2 on the ri$ht side of the exhi+it HIE& in your opinion& does that
reco$ni=e that there's a ris that someone could +e in1ured(
!. /es.
;. Would it +e fair to say& in your opinion& that 'hen a company re4uires that& they reco$ni=e the
potential ris of in1ury 'hen hirin$ an independent contractor(
Ms. Ste##ins: O#(e&ti"n. Leading.
Judge: O1erruled.
!. /es.
;. What human resources practice attempts to reduce the ris of in1ury(
!. )ac$round checin$& for one.
;. 7o'& 0 'ant to tal a little +it a+out licensin$ 'ith respect to ,r. -urray. 0n your opinion& 'as !E"
puttin$ lan$ua$e in its contract 'ith ,r. -urray the same or not the same as checin$ him out&
accordin$ to your human resources practices and procedures(
!. 0'm sorry. %ould you repeat the first part of that(
;. *ure. With respect to a license& the fact that someone puts in the contract you need to +e licensed& in
your opinion& is that sufficient in checin$ out their +ac$round(
!. 7o& it's not.
;. !nd 'ould that +e sufficient in this case& or reasona+le& as it relates to ,r. -urray and his fitness or
competence and the 'or that
!E" #ive did or did not do in retainin$ him(
!. 0 thin it's important to have it in there& so in that sense& it's reasona+le to have it in there. )ut it is
not exclusively the only thin$ that 'ould help to determine if he 'as fit& competent& and not $oin$ to
pose a ris of harm to others.
;. ,o you no' 'hether any checs 'ere done& 'hether ,r. -urray 'as in fact licensed(
!. 0 did not see any in my revie' of the documents and testimony.
;. When you're checin$ out 66 some+ody represents they're licensed& is it your expectation 'hen you
chec it out that they 'ill +e licensed(

!. /es. /es. 0f they represent that they are certified& 'hatever& or& you no'& have a %.,.#. ,river's
license& you 'ould expect that they have that& indeed.
;. Well& 'hy 'ould you chec it out& then(
!. )ecause you never no' 'ith certainty. !nd so& a$ain& if you 66 you can't al'ays tae someone's
'ord for it. !s much as 'e 'ant to +elieve that people are truthful and honest and forthri$ht and that
the license is valid& 1ust lie the example 0 $ave you 'here the person had the license& +ut there 'ere all
inds of thin$s in the history associated 'ith that license that rendered them ineli$i+le for that 1o+.
Jntil you chec that& you don't no'.
;. Well& no'& in this case& did you see anythin$ that 'as done to determine 'hether or not ,r. -urray
'as extremely successful(
!. 0 sa' nothin$ that 'as done to determine that.
;. 0 'ant to sho' you no' exhi+it ?HI6E. !nd 0'm $oin$ to come up there and move this for a
moment. .ay. *o on the screen is exhi+it ?HI and ?HI6E and ?HI6F (indicatin$). Had you revie'ed
these in preparation for your opinions in this case(
!. /es.
;. !nd have you revie'ed every sin$le email in this case(
!. 7o.
;. !ll ri$ht. Was there anythin$ specific in this email 66 and this email is dated June ?Ath& ?AAH 66 that
you found si$nificant in the opinions you are renderin$ in any 'ay(
!. /es. When 0 read this email& it struc me that !E" 'as actually in the very sort of a trap 0
mentioned earlier8 that if you don't chec out a 'orer ade4uately& and you are in a situation lie this.
Here 'as -r. Phillips sayin$ 'hat he hoped 'as the case& +ut 'hat 'e later found out 'as not the case.
)ut he hoped and reco$ni=ed the importance of the doctor +ein$ extremely successful so that he 'asn't
relyin$ on the $i$ and& therefore& +iased and unethical. He 'as acno'led$in$ the importance of those
traits for this position. !nd here he 'as cau$ht in that trap of havin$ not done that in a situation 'here
yet that +ecame so critical and so important& and he reali=ed here& it appears& from 'hat he 'rote& the
importance of that. !nd so that's 'hat struc me 'hen 0 read this email.
;. ,id you see any evidence that -r. Randy Phillips ne' the criteria of the position and the
importance of the position that ,r. -urray 'as tain$(
!. !t 'hat point(
;. !t any point.
!. Well& you no'& here& certainly& he's acno'led$in$ 'hat the criteria are for the position& and at the
point at 'hich ,r. -urray 'as hired. 3here 'as certainly the elements of many of the elements of riss
associated 'ith the 1o+.

;. !nd -r. Phillips& as the %E. of !E" #ive states in parentheses& 2We check everyone out&2 end of
parentheses. ,oes that have any si$nificance or +earin$ at all in the opinions you've $iven a+out human
resources policies and procedures as they apply to this case(
!. 0t implies here that they have a process8 that they do indeed have a process for checin$ out people.
;. !nd is that somethin$ that you +elieve they should have(
!. /es. .h& yes.
;. !nd did you see evidence in this case& as -r. Phillips states& that they checed out ,r. -urray lie
they chec everyone out(
!. 0 did not.
;. 7o'& 1ust 66 0 don't 'ant to $et into the 'hole email& +ut 'ould you a$ree 'ith me that at least -r.
Phillips and -r. .rte$a are exchan$in$ correspondence re$ardin$ -r. Jacson's health(
!. /es.
;. !nd as a human resources professional& is this somethin$ that at least the health of someone is 66
should +e considered seriously(
Ms. Ste##ins: O#(e&ti"n. Leading= #ey"nd the s&"2e "0 this witness/s e+2ertise.
Judge: Can y"u as, the 3uesti"n again.
Mr. anish: Sure. Let $e g" a#"ut it this way.
;. "enerally& 'ithout $ettin$ into specifics& do you have an understandin$ of the su+1ect matter of
these emails at this point in time(
!. /es.
;. What 'as that(
!. -r. .rte$a 'as expressin$ $reat concern over the health of -r. Jacson.
;. !ll ri$ht. !nd 'e 1ust taled a+out 2We chec him out.2 !nd then he saysC 2Does not need this gig
so he's totally unbiased and ethical.2 ,id you consider that si$nificant for any of your opinions in this
case(
!. 0 did.
;. Why(
!. )ecause& once a$ain& it indicated to me that -r. Phillips 'as 'ell a'are of the importance of
determinin$ that ,r. -urray 'as not desperately in need of the $i$ and that he 'as successful and that

he 'ould +e un+iased and unethical (sic).

;. !nd that term& 2'e chec2 66 let's exclude everyone& +ut that term& 2'e chec out&2 is that exactly
the term& !E" checs out people& 'hat -r. 3rell 'rote on his exhi+it HIE(
!. /es.
;. !nd 'hy is that important& that lan$ua$e& in your opinions(
!. 3he lan$ua$e in the email(
;. /es. Just that specific lan$ua$e.
!. 3hat specific lan$ua$e& a$ain& is indicative of -r. Phillips' no'led$e that there is a process8 that
they chec everyone out. 3he importance of doin$ that.
;. *o 'ould you a$ree or disa$ree that on its face& that 'ould seem to indicate that such a process
existed(
!. 0t does.
;. !nd from a commonly6accepted human resources perspective& 'hat& in your opinion& does it mean&
2'e chec every+ody out2(
!. -eans 66
Ms. Ste##ins: O#(e&ti"n- y"ur h"n"r. %he witness is n"t an e+2ert in inter2reting s"$e"ne else/s
e$ail. %his is the 0"urth witness t" testi0y "n the $eaning "0 this e$ail- 0"urth e+2ert- and it/s
really #ey"nd her a#ility- y"ur h"n"r- t" inter2ret s"$e"ne else/s w"rds.
Judge: O1erruled.
!. Well& a$ain& 'hen 0 see 2chec everyone out2 in the email& and no' 0 see a chart that says& 2'e
chec every+ody out2 or the process for checin$ out people& to me& they're related. *o 0 see the
relationship there.
;. .ay. What 66 in your opinion& from a human resources perspective& 'hen you 2chec someone
out&2 'hat are you doin$(
!. /ou are verifyin$ that they're fit for the position& competent to perform the 'or and that they don't
pose a ris of harm to others and to themselves.
;. !nd in your perspective& as a human resources professional& does it matter 'hether !E" #ive is a
concert promoter& producer& or any other +usiness as to 'hether they should chec someone out 'hen
assessin$ the 1o+ criteria(
!. 7ot at all.
;. Why not(

!. )ecause& a$ain& it's an HR practice across industry lines. 0t doesn't matter 'hat industry you're in.
!s an employer hirin$ a 'orer& there's 66 there's an o+li$ation there to ensure that the 'orers are fit8
that they're competent8 that they're a+le to do the 1o+.
;. Well& concert promoters are different. *houldn't they have their o'n rules(
!. 7o.
;. Why not(
!. 3hey're su+1ect to the same rules of everyone else& 'hether harassment& discrimination& or overtime&
or hirin$ and ensurin$ that 'orers are not $oin$ to pose a ris of harm. 3hat applies across industry
lines. 7o& it doesn't matter 'hat +usiness you're in.
;. 7o'& 'here it says& 2and does not need this $i$&2 did you see that(
!. /es.
;. Was that phrase in any 'ay si$nificant to your opinions in this case(
!. /es.
;. 3ell us ho'& please.
!. )ecause& a$ain& it's reco$nition +y -r. Phillips of the importance of hirin$ a 'orer for this role
'ho is not in need of the $i$& 'ho does not have to rely upon the $i$& and it relates +ac to the hirin$
criteria for this 'orer.
;. 7o'& do you thin that 66 strie that. 0n your opinion& if some+ody 'as 'antin$ to determine
'hether or not someone needed a specific 1o+ or $i$& ho' 'ould they $o a+out& from a human
resources perspective& in main$ that determination(
!. Well& they 'ould certainly conduct an intervie' and tal 'ith them a+out their circumstances& and
they 'ould also run a credit chec to determine& you no'& 'hether or not they had met all of their
o+li$ations& or if they 'ere in default of any contractual o+li$ations that they had. .+li$ations for
payin$ de+t.
;. Well& you no'& people that $o to medical school& don't they& most of them& have to tae out some
ind of loan(
!. 0 don't have a statistic on that& +ut 0'm sure most of them 'ould pro+a+ly have to.
;. 3he fact that some+ody has some de+t& does that mae them incompetent or unfit to perform a
specific 1o+(
!. .h& no& no. 0t's not the de+t. 0t's not the de+t at all8 it's the fact that you're in default of the de+t8 the
fact that you haven't met your responsi+ility 'ith re$ard to that de+t.

;. #et's tal a little +it a+out a credit chec. 0s that expensive(

!. 7o.
;. Just $enerally 66
Mr. anish: *id y"u "#(e&t.
Ms. Ste##ins: N".
Mr. anish: Oh- I/$ s"rry. I th"ught I heard s"$ething.
Ms. Ste##ins: A 2hant"$ "#(e&ti"n.
;. "enerally& 'hat is the ran$e that that 'ould cost(
!. 0t's approximately 66 less than G9A. *ome'here around G@& G9A& dependin$ on the vendor you're
usin$.
;. Ho' lon$ does it tae to $et the information(
!. !+out five minutes. 5ive& ten minutes.
;. !re they difficult to run& credit checs(
!. 7ot at all.
;. What type 66 is it commonly done in human resources 'hen you're checin$ someone out& 'hen
there's a potential reco$nition of
!. 5inancial condition that could impose a ris to others or the company(
Ms. Ste##ins: O#(e&ti"n. Vague.
Mr. anish: It $ight #e 1ague. Let $e try it again.
;. %redit checs. !re those done in the human resources area& 1ust $enerally(
!. /es& they are.
;. !nd 'hat types of circumstances are they done(
!. 3hey're done in a variety of circumstances.
;. !re they done in circumstances 'here there could +e some effect on the individual that relates to
their financial condition(
!. /es.

;. 0s there a reco$nition in the human resources industry that financial conditions in certain positions
could have a potential of creatin$ ris in a 1o+(
!. /es.
;. !nd ho' is that(
!. Well& in the cases of positions 'here there's hi$h levels of trust necessary or re4uired& hi$h levels of
responsi+ility& executives and mana$ement roles. !. Position& lie 0 mentioned& 'ith the 3.*.!.. Where
they're screenin$ 'orers& those are the types of positions 'here& 'ith hi$h levels of responsi+ility and
trust& employers 'ant to no'& is this some+ody 'ho meets their o+li$ations( 0s this someone 'ho has
exercised responsi+ility in the past and has $ood 1ud$ment(
;. 0s that somethin$ you have to do for every position(
!. 7o& it's not.
;. .ay. 0f some+ody's 66 'hether they're +iased and ethical is connected to a financial condition&
should that +e a hi$h priority from the human resources perspective(
!. 0f it's connected to that& yes.
;. !nd 'hy is that(
!. )ecause& a$ain& it 'ould +e necessary to determine 'hether or not the 'orer 'as fit and
competent and doesn't pose a ris. !nd if one of the elements of that is ensurin$ that they're not
desperately in need of the $i$ in a situation that 'ould create& you no'& additional pressure on them to
perform& then you 'ould 'ant to $et that information and no' that.
;. 7o'& 'hat human resource practice 'ould have alerted !E" #ive& or ena+led them& to identify the
ind of ris that existed +efore hirin$(
!. ! simple credit chec 'ould have done that.
;. ,o they need to evaluate the position to determine 'hether or not there's any ris(
!. /es. 3hey 'ould need to understand the position first.
;. 0n order to determine 'hether ,r. -urray needed the $i$& 'hat 'ould +e a typical human resources
practice to mae that determination(
!. !$ain& 0 'ould have recommended an intervie' and reference checin$ and& at a minimum& a credit
chec.
;. Well& 'hat a+out the fact that -ichael Jacson 'anted !E" #ive to hire ,r. -urray( ,oesn't that
relieve them of any of this human resources practices and procedures(
!. 7o. 7o.

;. Why not(
!. 3hat& a$ain& is a referral. 0t's 1ust as 66 'as up on the chart a moment a$o& it's 1ust a referral. 0t may
+e a $ood referral& may+e not a $ood referral. /ou don't no'. )ut it's a referral& and so that doesn't do
anythin$ to chec out a person.
;. !re you sayin$ that runnin$& lie& a civil 1ud$ment search& is that somethin$ that should +e done for
every employee(
!. 7o& not for every employee.
;. 0s there a le$al re4uirement that a potential employee $ive approval for a credit chec(
!. /es& there is& if you're $oin$ to do it throu$h a third6party vendor.
;. .ay. *o let's say that 0 'as applyin$ for a 1o+& and you determine that my position 'as sensitive
'here you 'anted to run a credit chec. !nd you say 66 could you do that 'ithout my permission(
!. 0f 0'm $oin$ throu$h& a$ain& this third6party company& no& 0 could not.
;. !re there 'ays to do it 'ithout $oin$ throu$h a third6party company(
!. /es.
;. 0s it easier to $o throu$h a third6party company(
!. /es.
;. When you say 2third6party company&2 'hat is that(
!. 3he technical term is a 2consumer reportin$ a$ency.2
;. *o let's say that 0 say it's oay to run a credit chec. What do 0 have to do that allo's you to run a
credit chec(
!. What 66 0'm sorry(
;. 0 mean& do 0 have to do somethin$& or is 66 0 1ust say& 20t's oay& you can do it&2 can you 1ust do
somethin$& or do 0 need to do somethin$(
!. 0 see. /ou 'ould have to fill out an authori=ation form that $ave me& if 0 'as the employer&
permission to do that.
;. When you $o to the third party& do they as for a 'ritten authori=ation +efore they run the credit
chec(
!. 3hey don't as for it8 it's a re4uirement that the employer o+tain it. !ll you're doin$ from the
employer is enterin$ information into a data+ase system.

;. What if 0 say& 2/ou no' 'hat( 0 have $reat credit. 0 don't 'ant you to chec it out2(
!. Well& 0 'ould say to you& if it 'as a re4uirement for the 1o+& 2/ou're not hired.2
;. ,oes it need to +e 1o+6related(
!. 0t should +e 1o+6related.
;. .ay. 0n this case& do you have an opinion as to 'hether or not& from a human resources
perspective& as a human resources professional& 'hether a credit chec of ,r. -urray 'ould have +een
1o+6related(
!. 0n my opinion& yes& it 'ould have +een.
;. !nd 'hy is that(
!. )ecause& once a$ain& !E" #ive ne' the situation that ,r. -urray 'as $oin$ to +e in. He 'as
$oin$ to +e 'orin$ in -ichael Jacson's home8 he 'as $oin$ to have access to confidential& sensitive
information& and he 'as $oin$ to +e providin$ medical care& +ut +ein$ paid +y !E" #ive. *o there 'as
the potential for a conflict of interest. *o they 'ere a'are of those factors $oin$ in to the arran$ement.
;. Ho' a+out the fact that -r. "on$a'are ne' at least in the past that -r. Jacson had some issue
'ith the use of dru$s(
!. /es. !nd the fact that they ne'& that ind of elevated those riss. !nd they also ne' that in the
industry& that tour doctors& or doctors in the industry had provided dru$s to artists that caused harm to
artists& so 66
Ms. Ste##ins: O#(e&ti"n. M"1e t" stri,e t" the e+tent the witness is testi0ying as t" what AEG
Li1e did "r didn/t ,n"w. %here/s #een n" e1iden&e "0 that.
Judge: I d"n/t ,n"w. :hy d"n/t y"u 88 well- ",ay. Sustained unless there/s 88 she read s"$ething.
;. Well& did you read the testimony of -r. "on$a'are on that issue(
!. /es& 0 did.
Ms. Ste##ins: Again- y"ur h"n"r- the (ury "#1i"usly is wel&"$e t" e1aluate the e1iden&e- #ut she
sh"uld n"t #e testi0ying as t" what the *e0endants did "r didn/t ,n"w- y"ur h"n"r.
;. 0 'ant you to assume that -r. "on$a'are ne' that this had occurred and that he had had a
conversation 'ith ,r. 5inelstein re$ardin$ that su+1ect and made comments to ,r. 5inelstein a+out
physicians $ivin$ ,ru$s to artists8 oay(
!. /es.
;. *o& in that re$ard& 'ith that information& 'ould that +e an additional reason 'hy this thorou$h
+ac$round chec and credit chec should have +een done(

!. /es. 0t 'ould have elevated the ris& in my opinion.

;. !ll ri$ht. 0n ?AAH& 'ere there any la's in effect that 'ould have prevented !E" #ive from doin$ a
+ac$round or credit chec on ,r. -urray(
!. 7o& there 'ere not.
;. 7o'& the 66 you mentioned the fair credit reportin$ act. Just $enerally& 'hat is your understandin$(
,on't tell me 'hat 66 $enerally& 'hat's your understandin$(
!. 3hat's the la' that lays out the re4uirements associated 'ith o+tainin$ consumer reports& 'hich
'ould include criminal +ac$round checs and credit checs.
;. !nd does that apply to independent contractors as 'ell as employees and others(
!. 3hat la' specifically states that independent contractors can +e& or you can run or $et consumer
reports for independent contractors.
;. )ut& a$ain& can you $et that information 'ithout the consent of the individual for 'hom you're
checin$ out(
!. 7o. /ou have to have their consent.
;. !ll ri$ht.
Judge: Just t" let y"u ,n"w- there/s a 0ew $inutes #e0"re n""n.
Mr. anish: Oh- I/$ s"rry- y"ur h"n"r.
;. 3he fact that there's a 'ritten contract 66 strie that 4uestion. 3he fact that !E" 'as ne$otiatin$ a
contract 'ith ,r. -urray& that ,r. -urray at least si$ned& does that relieve any of the o+li$ations of
them to conduct an accurate and thorou$h +ac$round chec or not(
!. 7o. !s 0 had sho'n 'ith this chart& 1ust $ettin$ the contract isn't checin$ out ,r. -urray.
Mr. anish: All right. N"w is (ust as well a g""d ti$e.
Judge: I0 it/s a g""d ti$e. O,ay. O,ay. 1:7>.
'Lun&h re&ess)

'%he 0"ll"wing 2r"&eedings were held in "2en &"urt- in the 2resen&e "0 the (ur"rs):
Judge: Ja&,s"n 1ersus AEG Li1e. G""d a0tern""n. 4"u $ay &"ntinue.
Mr. anish: %han, y"u.

*ire&t e+a$inati"n #y Mr. anish:
;. "ood afternoon.
!. "ood afternoon.
;. 0 'ant to sho' you exhi+it DH:69 and ?. 0t's in evidence. 3his is an email 'e've all seen& -s. Jorrie&
'ho is an outside counsel for !E"& re$ardin$ -r. 3ohme. Have you seen this +efore(
!. /es& 0 have.
;. ,id you consider this in your opinions(
!. /es& 0 did.
;. Why is that(
!. )ecause 'hen 0 read this email& it 'as clear to me that !E"'s outside counsel& -s. Jorrie&
reco$ni=ed the importance of a +ac$round chec on an individual associated 'ith the tour 'ho 'as in
!. Jni4ue role& and this is an individual for 'hom some credentials 66 they checed up on credentials
and authenticity already. *o in a sense& a reference chec had already +een completed8 +ut she 'as
recommendin$ a +ac$round chec. !nd& a$ain& that 'as si$nificant to me +ecause it indicates the 66
the importance of checin$ out& +y virtue of a +ac$round chec& an individual associated 'ith the tour
'ho is in a uni4ue role.

;. ,o you no' 'hether -r. Jacson had familiarity 'ith -r. 3ohme prior to this time(
!. /es. 5rom 66 0'm not looin$ at the entire email here8 +ut if 0 recall& do'n +elo' this portion that is
hi$hli$hted here there is an email that this 'as copied in to -r. Jacson's attorney& and there 'as also 66
0'm recallin$ that this $entleman& ,r. 3ohme& had +een -r. Jacson's mana$er for several months prior
or may+e lon$er.
;. .ay. !ll ri$ht. 7o'& at your deposition in this case& -s. *te++ins 'as 4uestionin$ you a+out 66
'hat is it called( 66 some trade pu+lication. ,o you remem+er that(
!. /es.
;. !nd she 'as 4uestionin$ you a+out percenta$es of people that do health that do +ac$round checs
or credit checs& 0 thin. ,o you remem+er that(
!. 0 do& yes.
;. 0s that information at all relevant to your opinions in this case(
!. 0t's information a+out the percenta$es of employers that conduct +ac$round checs and credit
checs on employees.
;. .ay. What she 'as referrin$ to& is that a 'orld'ide or a nation'ide survey(
!. 0t 'as a survey of the mem+ers of a national trade association in the field of human resources.
;. !nd did that 66 is that somethin$ that's relia+le and authoritative in your industry(
!. 0 'ouldn't call it authoritative. 0t is the only national trade association in the HR industry& so they
have pu+lications that 0 'ill refer to from time to time and use their 66 the survey data from time to
time.
;. !ll ri$ht. !nd -s. *te++ins 'as 4uestionin$ you su$$estin$ that only ? or E percent of medical type
people chec credit. ,o you remem+er those ind of 4uestions(
!. 0 remem+er that statistic& yes.
;. ,oes that have anythin$ to do 'ith this case(
!. Well& the particular chart that she 'as referrin$ to 'as sho'in$ the percenta$es of people 'ho
participated in that survey 'ho had conducted credit checs. !nd 0 +elieve there 'ere 9@I& and that
mi$ht not +e 4uite ri$ht& +ut ri$ht in that ran$e& people 'ho responded to that 4uestion. !nd of that 9@I&
E percent of them indicated that they did credit checs for employees in healthcare6related fields. !nd
so 0 noted in my deposition that that 'as a very small num+er& especially $iven the fact that there are
:AA&AAA healthcare facilities in the united states& so the num+er reflected in that survey 'as 1ust a
smid$en& far less than 9 percent of all of the healthcare facilities. !nd 'hat 0 didn't mention then& 0'll
mention to you& 'as that there's another percent on that ta+le that pertains to the percent of 'orers
'ho 'or in people's homes8 and that num+er 'as EA percent. *o EA percent of the employers 'ho

responded to that 4uestion indicated that if they have a 'orer in a home& 'orin$ in a home
environment& that they conduct credit checs.
;. .ay. 7o'& are there any trade pu+lications or surveys or anythin$ that assess 'hether employers
that are hirin$ employees that are in a hi$h6ris or sensitive position do credit or +ac$round checs(
!. 3here's no survey lie that that 0'm a'are of.
;. !nd 'hether 66 did you rely on statistics to set forth your opinions in this case as to 'hether or not
!E" should have done certain actions re$ardin$ ,r. -urray prior to his hirin$(
!. 7o& 0 did not.
;. 7o'& is there any 4uestion that !E" could easily have done a +ac$round chec on ,r. -urray if
they 'anted to(
!. 3here's no 4uestion that they could have done that if they 'anted to.
;. !nd 0'm $oin$ to sho' you exhi+it D:I69:: to 9I9 and as you if you've seen these documents.
Have you seen this(
!. /es& 0 have.
;. .ay. !nd this is 66 'hat is your understandin$ of 'hat this 66 'hat this is.
!. 3his is the +ac$round chec authori=ation form that 'as in the !E" hand+oo that is 'hat's
re4uired +efore you run a +ac$round chec or includin$ a credit chec on a 'orer.
;. 0n other 'ords& there's the information the 'orer has to read and si$n off to allo' that(
!. /es.
;. !nd you told us earlier a+out 'hat it costs and ho' you $o a+out doin$ it& correct(
!. /es.
;. !nd this is a document that 'as in !E"'s possession(
!. /es.
;. ,o you have an opinion& +ased on your experience& trainin$ in human resources& concernin$
'hether if !E" #ive had run a civil 1ud$ment search or credit search of ,r. -urray in may or 1une of
?AAH& 'hether they 'ere more liely than not to have discovered information that 'ould +e si$nificant
to retention or hirin$ of ,r. -urray(
Ms. Ste##ins: O#(e&ti"n= la&,s 0"undati"n as t" this witness- y"ur h"n"r. She didn/t &"ndu&t any
su&h &he&,.
Judge: Sustained.

;. Well& have you revie'ed 66 excuse me. Have you revie'ed ,etective -artine='s trial testimony in
this case(
!. /es& 0 have.
;. !nd have you 66 do you have an understandin$& a+sent and apart of ,etective -artine=& 'hat type
of information you find if you conduct a credit or +ac$round chec(
!. /es& in $eneral& 0 do have an understandin$ of that.
;. 3ell us 'hat type of information you find.
!. Well& if you run a 66 a +ac$round chec& a criminal +ac$round chec& then you're $oin$ to $et a
criminal history on an individual8 and if you run a credit chec& then you're $oin$ to $et a credit history
on that individual.
;. Would that include 'hether or not you 'ere in default on any loans(
!. .h& yes& it 'ould.
;. Would that cover 'hether you 'ere in default on any mort$a$es(
!. /es.
;. !ccounts that are in collections& are those covered(
!. /es& and char$e6offs.
;. ,elin4uent accounts(
!. /es.
;. 3ax liens(
!. /es.
;. ,ifferent social security num+ers(
!. /es.
;. .ay. 0 'ant you to 66 is there a difference +et'een +ein$ in de+t and +ein$ in default(
!. /es.
;. !s far 66 from a human resources perspective(
!. 5rom an HR perspective& yes.

;. Please explain.
!. )ein$ in de+t is 1ust havin$ de+t8 and 0 don't no' 'hat percenta$e of the population has de+t& +ut
0'd venture to say it's pro+a+ly a lot. )ut havin$ de+t is one thin$& +ein$ in default of that de+t and not
fulfillin$ the o+li$ation that you have to pay +ac that de+t is another.
;. .ay. 0 'ant you to assume that ,etective -artine= testified in this case 66 and you've revie'ed his
testimony 66 that he found that ,r. -urray had +een in default on multiple loans8 that he 'as 9IA days
past due on his mort$a$e8 that he had accounts in collection 'here creditors 'ere tryin$ to collect8 that
he had delin4uent accounts8 that he had tax liens8 and that he had three different social security
num+ers that 'ere listed on his credit chec. ,id you see that information in ,etective -artine='s
testimony(
!. /es& 0 did.
;. .ay. !s an employer& had you received that information& 'ould that +e si$nificant to you in
assessin$ 'hether or not it 'ould +e appropriate to hire someone lie ,r. -urray in a hi$h6ris or
sensitive position(
!. 0n this position& yes& it 'ould have +een.
;. !nd 'hy(
!. )ecause& once a$ain& if you loo at the nature of the 1o+ and the 66 the circumstances under 'hich
that 1o+ is $oin$ to +e performed& ,r. -urray's level of responsi+ility and trust and the pressure on him
to perform to receive the pay that he 'as receivin$& $iven that he 'as closin$ do'n clinics and 'as
$oin$ to assume this role full time and had 66 'as relyin$ on it as his source of income& that 'ould +e
+een very relevant to me& to see that information.
;. ,id you see any information or evidence that for any reason prevented !E" from o+tainin$ the
same information that ,etective -artine= did(
!. 7o. 3hey could have run the 66 the +ac$round chec and $otten a credit report.
;. .ay. 7o'& is there any reason 'hy +asic human resources principles don't apply to the
entertainment industry or live music industry(
!. 7ot at all.
;. 3he live music industry lie the industry !E" 'as in& !E" #ive& did they have special rules that
only apply to them 'hen it comes to human resource principles(
Ms. Ste##ins: O#(e&ti"n= as,ed and answered.
Judge: O1erruled.
!. 7o.
;. !re you a'are of anythin$ that exempts !E" #ive from follo'in$ +asic human resources practices

and standards(
!. 7o& 0'm not.
;. !re you a'are of any human resources customs and practices in the music industry that are less
careful or less thorou$h than human resources practices across the +oard(
Ms. Ste##ins: O#(e&ti"n= la&,s 0"undati"n. She has n" idea what the &ust"$ and 2ra&ti&e "0 the
$usi& industry is.
Judge: Sustained.
Mr. anish: I said- ;Are y"u aware.;
;. ,o you no' of any special rules that apply to !E" #ive( Have you heard of any special rules in
this case(
!. 7o& 0 have not& not from HR
;. *ee any evidence that !E" #ive has special rules on ho' to deal 'ith human resources policies and
procedures(
!. 7o.
Mr. anish: %hat/s all. %han, y"u.
Judge: %han, y"u. Cr"ss e+a$inati"n.
Ms. Ste##ins: 4es- y"ur h"n"r. Just gi1e $e a se&"nd t" swit&h "1er.
Cr"ss e+a$inati"n #y Jessi&a Ste##ins:
;. "ood afternoon& -s. *ea'ri$ht.
!. "ood afternoon.
;. *o 1ust +efore 'e $et started& 0'm $oin$ to $o into the opinions you taled a+out 1ust no'. )ut 0
'ant to mae sure of one thin$. !ll of the opinions that you $ave today& those are +ased on the
assumption that !E" #ive hired ,r. -urray& ri$ht(
!. /es.
;. !nd if 66 if ,r. -urray 'as& in fact& hired +y -ichael Jacson& then the opinions 'ould +e different&
correct(
!. 0 didn't evaluate 'hat 'ould have occurred had -ichael Jacson hired him.
;. !nd you didn't evaluate the situation if -r. Jacson had +rou$ht ,r. -urray out& +rou$ht him into

his home and paid him re$ularly durin$ the entire period(
!. 0 did not evaluate that.
;. /ou're 1ust assumin$ that !E" #ive hired ,r. -urray and then your opinions $o from there& ri$ht(
!. /es.
Mr. anish: 4"ur h"n"r- I w"nder i0 y"u &"uld gi1e the (ury an instru&ti"n "n that issue- as t" 88
Judge: I ga1e it t" the$ earlier- #ut I &an re$ind the$ that it/s u2 t" the$ 88 ulti$ately- y"u/re
g"ing t" de&ide whether 88 wh" hired *r. Murray. %hat/s g"ing t" #e y"ur de&isi"n. !ut a l"t "0
ti$es the e+2erts are gi1ing "2ini"ns #ased "n assu$2ti"ns that s"$e"ne was hired. It will #e
#"th 0"r the de0ense and the lainti00s- they/re #"th 88 #"th "0 their e+2erts are g"ing t" $a,e
th"se assu$2ti"ns.
Mr. anish: %han, y"u.
Ms. Ste##ins: And I/$ (ust as,ing what y"ur assu$2ti"ns are s" we/re all "n the sa$e 2age
when we get started. %here are a &"u2le "0 things y"u said "n dire&t that I (ust wanted t" tal,
a#"ut really 3ui&,ly.
;. /ou're not a private investi$ator& are you& -s. *ea'ri$ht(
!. 7o& 0'm not.
;. !nd you don't yourself run credit checs or +ac$round checs& correct(
!. 7o8 0 do.
;. .h& you do do that(
!. 0 do that for people 0 66 0 employ& yes.
;. )ut not for other companies& not in your consultin$ 'or(
!. 7o.
;. !nd 'hen you do them yourself& do you run all the checs yourself& or do you 1ust do some thin$s
yourself(
!. ,epends 'hat 2thin$s2 is& 'hat you mean +y 2thin$s.2
;. 0 mean +ac$round information. What do you do yourself versus 'hat do you have other people
do(
!. .h& 0 enter in the data myself into the data+ase& and 0 order the reports myself.
;. Ri$ht. *o you order reports from other companies(

!. 0 order reports from the consumer reportin$ a$ency that provides the +ac$round chec reports.
;. 3hat's 'hat 0 'anted to understand. *o you 'ould order a report& say& from a 66 one of the credit
card reportin$ a$encies& for instance& lie e4uifax or transunion or somethin$ alon$ those lines(
!. 7o. /ou order throu$h a third6party vendor& 'hich is a +ac$round6checin$ company& and they're
the ones 'ho have $athered and 66 and prepared that information.
;. *o you don't run a +ac$round chec(
!. Well& that is runnin$ a +ac$round chec in the HR 'orld& is enterin$ the data re4uestin$ the
reports.
;. 0 said you don't run a +ac$round checin$ company(
!. .h& 0 don't run one. 0'm sorry. 0 didn't understand that. 7o& 0 do not run a +ac$round checin$
company& no.
;. /ou have a company called *ea'ri$ht < !ssociates(
!. /es.
;. Ho' employees does that company have(
!. Presently there are four of us.
;. !nd you're the head of the company(
!. /es.
;. !nd your services in this case& you're providin$ those as an independent contractor(
!. 0n this case(
;. /es.
!. 0'm not providin$ them as an independent contractor& no. 0've +een hired& ho'ever& to $o throu$h
my corporation& my company.
;. Ri$ht. *o your company 'as en$a$ed +y Plaintiffs' counsel to provide consultin$ services and
expert 'itness services in this case& ri$ht(
!. /es.
;. !nd you're not an employee of Plaintiffs' counsel(
!. 0'm not.

;. !nd you're not $oin$ to permanently leave *ea'ri$ht < !ssociates and come 'or for Plaintiffs'
counsel(
!. 7o& 0'm not.
;. *o you're 'orin$ as a contractin$ entity 'ith 66 you have a contract 'ith Plaintiffs' counsel for
your services(
!. /es.
;. *o your company is contracted 'ith Plaintiffs' counsel to provide your services in this case(
!. /es.
;. )ut you don't consider yourself to +e an independent contractor(
!. Well& 0'm not receivin$ a 9AHH tax form.
;. )ut you are +ein$ paid throu$h a contractual arran$ement(
!. /es.
;. Just 'anted to clear up 'hat your position is. ,id Plaintiffs run a credit chec on you +efore
retainin$ your services in this case(
!. 0 have no idea.
;. Well& did you si$n an authori=ation for a credit chec(
!. 0 did not.
;. 0n the time that you've run *ea'ri$ht < !ssociates& have you ever si$ned a credit authori=ation for
a company that en$a$ed you as a consultant(
!. 7ot that 0 recall& no.
;. ,o you thin you'd remem+er that(
!. Well& 0 tend not to eep details lie that in my mind8 +ut 0 thin 0 pro+a+ly 'ould recall that.
;. !nd 66 and you've never run a credit chec on any physicians that treated you& ri$ht(
!. 7o& 0 have not.
;. #et's tal a little +it a+out your +ac$round. 7o'& you have& you said& a ?A6pa$e c.>.& correct(
!. /es.
;. !nd that mostly includes pu+lications that you've put out(

!. Pu+lications and speain$.

;. !nd speain$ en$a$ements(
!. /es.
;. )ut none or the articles you've 'ritten have +een a+out the music industry(
!. 7o.
;. 7othin$ in trade ma$a=ines a+out the entertainment industry(
!. 7ot that 0 recall& no.
;. )ecause you mentioned earlier that you 'ere retained +y some periodicals to 'rite a+out HR
issues. 3hose 'eren't entertainment6+ased& ri$ht(
!. 7o& they 'ere not.
;. /ou've pu+lished 4uite a +it in the la'n and pest control industry(
!. 3hose are the t'o industries that had a column in their periodicals that 0 had a monthly article 0
su+mitted for.
;. Ri$ht. !nd the company that you 'ored for in that year +et'een 66 'hen you 'ere not doin$
consultin$& that 'as a pest control company(
!. /es.
;. *o 'ould you say you're +it more familiar 'ith the pest control industry than other industries(
!. .h& 0 don't no' if it's a +it more familiar. 0'm familiar 'ith pest control and la'n care& thou$h.
;. 0n fact& 9EA of the 9ED articles on your c.>. Were pu+lished in la'n care or pest control periodicals&
ri$ht(
!. 3hat& 0 don't no' 'ith certainty.
;. ,oes it sound ri$ht(
!. 0 'ould have to see. 0 'ould have to loo at that to verify.
;. /ou 'ill a$ree that it's a su+stantial portion of this them(
!. 5or those t'o years that 0 had columns every month& so you 'ould 1ust add that up& so yes& there
'ould +e a num+er of them from those periodicals.
;. 0n fact& +y my count& 'e had over @A articles for pest control technolo$y. ,oes that sound ri$ht to

you(
!. 3hat may +e.
;. !nd over FE 66 another FE articles in la'n and landscape(
!. 3hat may +e.
;. !nd you've also pu+lished in the %alifornia 7urseryman ma$a=ine(
!. 3hat sounds 66 yes& that sounds ri$ht.
;. 5lorida turf di$est(
!. /es.
;. !nd you've pu+lished a series of +oolets for the 5lorida turf $rass associations& ri$ht(
!. /es.
;. !nd that's an association that's dedicated to $ardenin$ and turf $rass and thin$s of that nature(
!. 3hey 66 5lorida turf $rass 'as more $ro'in$ sod& sod forms& and sod6related industries& +usinesses.
;. !nd your first case testifyin$ as an expert 'itness 'as also for a pest control company& ri$ht(
!. /es.
;. 7o'& 'as that the other one 'here you served as a trial 'itness(
!. 3hat 'as the one& yes& the only other one& yeah.
;. !nd that 'as 'here someone had +een hired after previously +ein$ convicted of murder(
!. 7o& that 'asn't the one. 3hat 'as a different one.
;. What 'as the issue in the pest control case(
!. 0 66 from 'hat 0 recall& 0 +elieve it 'as an issue of a theft from a customer& if 0 recall correctly.
;. ,o you remem+er 'hat your testimony 'as in that case(
!. 0 don't recall my testimony exactly. 7o& 0 don't.
;. ,o you remem+er 'hat the outcome of that case 'as(
!. 7o& +ut 0 don't usually $et the outcome of most cases& so 66
;. *o you never chec to see 'hat happens 'ith the cases you testify in(

!. 0 actually don't.
;. 7o'& you've +een deposed in t'o other matters& ri$ht(
!. /es& 0've +een 66 yes. 0 have four depositions8 +ut 0 thin you helped me clarify that last time& that
one 'as a continuation& or 66
;. *o four days of deposition in t'o matters +esides this one(
!. 3hat's it. /es. 3han you.
;. %an you remem+er 'hat either of those cases 'ere a+out& the other t'o matters(
!. 3he 66 0 +elieve that one of them 'as one related to the pest control& one of the first cases8 and then
another one 'as a fe' years a$o& and 0 could not recall that at the time of my deposition. !nd that 'as
1ust +otherin$ me& so 0 66 0 reflected on that& and that case involved 66 0 +elieve it 'as a ne$li$ent hirin$
issue& from 'hat 0 66 'hat 0 did recall after 0 looed into it& 'as a 'orer 'ho had some form of a
history and 'as hired and harmed a customer.
;. ,o you remem+er 'hat industry it 'as in(
!. !utomo+ile auction industry.
;. !nd do you remem+er 'hat the history 'as(
!. 7ot in particular. 3here 'ere some char$es on 66 on the 'orers 66 on his +ac$round& some char$es
in his +ac$round.
;. %riminal char$es(
!. /es.
;. 0s it fair to say that in many instances that you've +een involved in or commented on& the person had
66 the person 'ho 'as +ein$ accused of misconduct had a prior criminal history(
!. 0n several of them that 0've +een involved in& yes.
;. !nd is this the first case that you've dealt 'ith 'here the only issue in someone's +ac$round 'as
their credit history(
!. 5rom 'hat 0
recall& yes& it is.
;. 7o'& in addition to your pest control 'or& you occasionally consulted 'ith healthcare
or$ani=ations& ri$ht(
!. Well& early in my career& the employer that 0 'ored for had a num+er of hospitals& and 'as even on
national trade associations for hospitals& so 'e did a lot of consultin$ in the arena of hospitals and

healthcare.
;. !nd that 'as sea mana$ement(
!. /es.
;. !nd that 'as more than 9: years a$o(
!. 3hat 'as in the 9H6 66 late 9HIA's and into the 9HHA's.
;. !nd since that time& you've only had t'o clients in the medical profession& ri$ht(
!. 7o. 0've had an orthopedic center& a 66 orthopedic 66 orthopedic care clinic& 0 'ant to call it8 an
ur$ent care center8 a nursin$ home8 and one that 0 did not remem+er durin$ my deposition 'as a dental
practice.
;. 0 don't thin you actually mentioned the nursin$ home at your deposition& either. When did you
'or for the dental practice(
!. 3he dental client 'as 'ithin the last five years.
;. %an you narro' it any more specifically than that(
!. 0t 'asn't 'ithin the last year& so prior to the last year.
;. !nd 'hat 'ere you advisin$ the dental practice on(
!. Employment6related matters.
;. ,id you advise them on their retention of independent contractors(
!. 7o& 0 did not.
;. What a+out the nursin$ home(
!. 3he nursin$ home is a current client.
;. What do you advise them on(
!. .n a variety of employment& a$ain& HR6related matters.
;. Retention of independent contractors(
!. 7o& not at this point.
;. !nd 'hat a+out the orthopedic and ur$ent care centers( ,id you advise either of them on the
retention of independent contractors(
!. 0 don't recall that one. 0 66 0 no' 'e dealt 'ith a lot of HR issues 'ith 66 'ith that client& +ut 0 don't

recall if it 'as precisely contractors or employees.

;. *ittin$ here ri$ht no'& you can't tell me that you definitely advised any medical facility in the last 9:
years on the retention of independent contractors(
!. 0'm sure that it's come up 'ith the clients that 0 have had in some capacity. 0 1ust can't tell you
exactly 'hat that 'ould have +een.
; you can't tell me in 'hat capacity it came up(
!. 0n 'hat capacity it came up.
;. )ut you're sure it did(
!. 0'm fairly certain that it did +ecause it's an issue that does come up 4uite often 'ith all my clients&
and 66 in terms of the consultation and advice that 'e $ive.
;. )ut you can't tell me 'hich client(
!. Which client for 'hat(
;. Which client you advised on independent contractors issues.
!. 0've 'ored 'ith thousands of +usinesses around the J.*.8 so it comes up readily 'ith many& many
employers.
;. *o is it fair to say you're 1ust assumin$ that you taled to these clients a+out these issues(
!. 7o& 0'm not $oin$ to say 0 assume 0 did. 0 did& 0 1ust can't recall the specifics of any conversations.
;. ,o you recall any advice you $ave(
!. 7ot specifically& no.
;. *o you're pretty sure you did tal a+out it& +ut you can't remem+er 'hat you said or 'ho you said it
to(
!. 0 am sure that 0've had the conversation. 0 no' that 0've taled a+out it in all the years that 0've
+een consultin$& it's an issue that comes up all the time. )ut to recall specific advice& specific situations&
no.
;. *o that's a you can't recall any 66 'hat advice you $ave or 'ho you $ave it to(
!. Well& it's a +road 4uestion& so 0 $uess 66 0'm not $oin$ to say 66 0 can recall havin$ conversations& it
comes up a lot& on the issue of independent contractors and of employees.
;. 0'm not mean to mae this hard& -s. *ea'ri$ht. 0'm 1ust tryin$ to esta+lish can you specifically
remem+er any specific advice you $ave to any+ody in the healthcare industry a+out the retention of
independent contractors(

!. 2Retention2 meanin$(
;. En$a$ement.
!. .h. .ay. 7ot 1ust retainin$ as in eepin$8 as in hirin$& as 'ell( !. !in& not specifically& no.
;. *o that's a no(
!. 5or the healthcare& no.
;. !nd you don't no' 'hether any of these medical clients of yours did credit checs on any
independent contractors they retained(
!. 3hat& 0 66 0 don't no' 'ith certainty. 0'm fairly certain that some of them 'ould have& +ut 'e
haven't had the conversation a+out it.
;. 0n fact& you don't no' 'hich checs they conduct in their 66 on independent contractors& if any(
!. 0 don't no' precisely 'hich ones they conduct. 0 have seen some practices 1ust here and there in
terms of policies or discussions that 0've had 'ith them& +ut 0'm not fairly positive a+out 'hat they do
'ith independent contractors.
;. 3hat's all 0'm tryin$ to find out& 1ust those four entities& you don't no' 'hat their policy is
re$ardin$ independent contractors(
!. 7ot precisely.
;. 7ot at all& really(
!. 0 no' they have processes in place.
;. )ut you don't no' 'hat those processes are(
!. 0 no' 'hat the processes are for hirin$& and so 0'm fairly certain that they utili=e those processes
for independent contractors& +ut 0 haven't had the opportunity to specifically deal 'ith that issue 'ith
them.
;. ,o you even no' for certain that they en$a$e independent contractors(
!. /es& 0 +elieve that they do.
;. !ll four of them(
!. 7ot the dental practice.
;. *o you thin the other three do8 +ut you don't no' 'hat& if any& checs they run(
!. 3he other three& 0 +elieve that they do. 0 don't no' precisely 'hat checs they 'ould run on

contractors.
;. !nd you've never 'ored at all in the concert industry& ri$ht(
!. 0n 66
;. 0n the concert industry.
!. 7o& 0 have not.
;. What a+out any other industries that are pro1ect6+ased( !nd +y that 0 mean thin$s lie festivals or
amusement pars 'here people are comin$ to$ether often and then +reain$ up.
!. People comin$ to$ether often and then +reain$ up(
;. 5or instance& there's +een testimony in this case& and you pro+a+ly are a'are of this from 'hat
you've read& that !E" #ive has certain permanent employees that it eeps full time8 +ut then it also has
a num+er of pro1ect6+ased festivals or tours 'here people are en$a$ed in connection 'ith a pro1ect and
then $o on to do other pro1ects 'ith other companies after'ards. Have you ever advised someone in a
situation that's analo$ous to that(
!. 0 have clients 'ho hire seasonal 'orers& and they come to$ether for a season& a very +usy season&
and then those 66 those individuals move on some'here else.
;. )ut those are seasonal 'orers that are actually 'orin$ for the company directly& ri$ht(
!. /es& they're there temporarily& similar to this.
;. Well& they're there temporarily& +ut they're actually 'orin$ in the companies' +uildin$s& $enerally(
!. 7ot necessarily.
;. Providin$ the same ind of services that the re$ular 'orers do(
!. 7o8 +ecause 'hen they're seasonal& they offer different thin$s& and so they +rin$ people in to deal
'ith the different elements of 'hat they're offerin$ seasonally.
;. %an you $ive me an example of 'hat you're talin$ a+out(
!. #ie a $arden center& for example& that may+e $ro's christmas trees. !nd so throu$hout the year&
they don't sell christmas trees& they don't have that as part of their practice8 +ut at christmastime& they
do cut do'n trees& they sell trees& they deliver trees& and so they 'ould +rin$ in a seasonal 'orforce to
deal 'ith the trees. !nd then those people 'ould $o a'ay& +ut they 'ouldn't continue to employ people
to deal 'ith trees.
;. )ut a $arden center sells plants year round& ri$ht(
!. *ells plants and $ro's plants& yes.

;. *o the seasonal 'orers are still in the same $eneral line of +usiness as the company(
!. 3hey're dealin$ 'ith trees.
;. *o is that your closest analo$y for this case& a $arden center hirin$ people 'ith christmas trees(
!. 0 'ould have to thin a+out it a little +it more. 0 haven't thou$ht a+out that from that perspective. 0
have a lot of clients 'ho hire seasonal and temporary 'orers& and so 0 1ust 'ould have to put some
thou$ht to that.
;. 3emporary 'orers are different from independent contractors& ri$ht(
!. 0n 'hat sense(
;. We'll $et to that. 0n the sense of usually a temporary 'orer is hired as an employee& ri$ht(
!. 3hey're hired. 3hey're 'orin$& similar to a contractor& they're +rou$ht in temporarily to do a 1o+
and then leave. *o they're there temporarily& 1ust lie a contractor 'ould +e.
;. )ut they're paid lie an employee 'ith 'ithholdin$ taen out of their paychecs(
!. 3heir pay does have 'ithholdin$ taen out& yes.
;. !nd they often have some type of temporary +enefits arran$ement either throu$h a temporary
service or a company en$a$in$ them(
!. 7ot necessarily& no.
;. *ometimes they do.
!. 7ot very often. -ost temporary 'orers don't receive +enefits.
;. *o it's your testimony that temp a$encies don't pay +enefits ever(
!. Well& the temp a$ency does. 0'm speain$ of the employer.
;. *o there may +e +enefits paya+le +y an a$ency rather than the employer(
!. 0f it's throu$h an a$ency. )ut there are temporary 'orers that don't $o throu$h a$encies.
;. #et's $o on. 0'm $oin$ to tal a +it more a+out these do'n the line& +ut 0 don't 'ant to $et distracted
from your experience. Have you ever 'ored for a sports team(
!. 0 have had a client& 5lorida %itrus *ports& and they ran the 66 'hat 'as the citrus +o'l and then the
capital one +o'l $ame.
;. ,id you advise them on the retention of independent contractors(
!. 0 did not.

;. What a+out talent a$encies(

!. 3alent a$encies& no& 0 haven't 'ored 'ith any talent a$encies.
; if you thin of somethin$ that you thin is more analo$ous to this case than the christmas tree
example& can you let me no'(
!. 0 'ill.
;. 7o'& you are a mem+er of the society for human resources mana$ement& ri$ht(
!. /es.
;. !nd that's an or$ani=ation made up of human resources professionals lie yourself(
!. 0t's made up of internal HR
professionals. 0'm an external HR consultant& so 66 the ma1ority of people 'ho are mem+ers 'ould +e
internal HR people.
;. %onsultants lie yourself are also mem+ers(
!. /es& 0'm sure that there are8 althou$h 0 haven't studied the mem+ership on that.
;. 3he common theme is that they're professionals 'ho 'or in human resources& ri$ht(
!. HR professionals.
;. !nd it's $ot mem+ers located all over the 'orld(
!. 0 don't recall if they have an international component. 3hey actually may. )ut 0 no' the ma1ority
of them are from the united states.
;. !nd there are @AA affiliate chapters in the united states& or over @AA(
!. 0 don't no' ho' many chapters there are.
;. !nd you've +een a mem+er since the early 9HHA's& ri$ht(
!. /es.
;. !nd another 'ay of referrin$ to the society of human resources mana$ement& it's nicnamed
*HR-& ri$ht(
!. 3hat's ri$ht.
;. *o if 0 say 2*HR-&2 you'll no' 'hat 0'm talin$ a+out(
!. /es.

;. /ou testified earlier& if 0 recall correctly& that *HR- is +asically the sort of only or$ani=ation that
really does comprehensive surveys of the human resources industry(
!. *HR- is the only national trade association that 0'm a'are of that does periodically conduct
surveys of a portion of their mem+ership.
;. !nd they're reco$ni=ed as an authority in that area& ri$ht(
!. 0 'ouldn't say they're reco$ni=ed as an authority. ,epends on ho' you define 2authority.2 +ut
they're the only national trade association that 0 no' of that does survey.
;. 3hey're respected in the field(
!. )y 66
Mr. anish: Vague and a$#igu"us as t" #y what.
;. *HR- is respected +y HR professionals(
!. 0 don't no' ho' other HR professionals feel a+out *HR- to +e a+le to ans'er that.
;. ,o you respect *HR-(
!. Respect in 'hat sense(
;. Respect them as an entity 'ho provides a valua+le service in the human resources industry(
!. 0 thin they do provide some valua+le resources in the industry.
;. !nd you've relied on pu+lications that they've issued in cases that you've done +efore(
!. 0 have used their survey 66 surveys to reference in certain situations.
;. !nd in connection 'ith this case& you presented 66 you produced an article from *HR-'s 'e+site as
material that you relied upon in formin$ your opinions in this case at your deposition& ri$ht(
!. 3hat article& yes& 0 did.
;. *o to some extent& at least& you relied on *HR- in your practice in your consultin$ industry(
!. 0n that particular sense& yes.
;. 7o'& are you a'are of 'hether the 66 'hether *HR- considers the difference +et'een independent
contractors and employees to +e a material one(
!. 0 +elieve that they do.
;. !nd you do& as 'ell& ri$ht(

!. /es& 0 66 0 +elieve that it's somethin$ to loo at in terms of 66 a$ain& you mentioned pay and ho' you
pay people. )ut as far as hirin$ is concerned& a$ain& 0 don't loo at the la+el and don't recommend that
clients loo at the la+el 'hen they're main$ those hi$her decisions and settin$ up that process.
;. !nd 0'm $oin$ to as you a+out this a piece at a time& and 0'm not tryin$ to mae it complicated.
Just there are differences that you do reco$ni=e& ri$ht(
!. 3here are differences& yes.
;. !nd it's important for you as a human resources consultant to no' a+out those differences& ri$ht(
!. 5rom 'hat perspective(
;. *o you can properly advise your clients(
!. .n 66
Mr. anish: It/s 1ague and a$#igu"us.
Ms. Ste##ins: <? related issues.
Judge: Generi&ally.
Ms. Ste##ins: Generi&ally- yes.
;. !t a +road level& at the top level of your field& is it important for you to no' the difference
+et'een and independent contractor and employee so you can properly advise your clients(
!. /es& in some 66 in the most $eneral sense& yes.
;. !nd some of your opinions in this case are +ased on the draft independent contractor a$reement
+et'een !E" #ive productions and ,r. -urray's company& "%!. Holdin$s& ri$ht(
!. /es.
;. !nd you've revie'ed that a$reement(
!. /es.
;. )ut you can't $ive me a definition of an independent contractor as 'e sit here today& can you(
!. 3here is no precise definition for an independent contractor.
Mr. anish: Just a se&"nd. I/$ g"ing t" "#(e&t. Nu$#er 1- it/s 1ague and a$#igu"us= tw"- it/s a
legal issue that/s n"t rele1ant in this &ase as the &"urt has already $ade su&h 0indings.
Ms. Ste##ins: 4"ur h"n"r- I/$ n"t as,ing 0"r a legal de0initi"n- I/$ as,ing 0"r a w"r,ing
de0initi"n in the hu$an res"ur&es industry.

Mr. anish: !ut it/s n"t 88 unless we/re g"ing t" "2en u2 the wh"le e$2l"yee 1ersus inde2endent
&"ntra&t"r- then it w"uld #e rele1ant.
Ms. Ste##ins: She/s testi0ied at length that she d"esn/t 1iew the distin&ti"n as $aterial and it
2r"1ides n" 1alue in the &ase. I thin, I/$ entitled t" e+2l"re that "n &r"ss e+a$inati"n.
Judge: I thin, that was deter$ined 2retrial.
Mr. anish: ?ight.
Judge: S" I/$ 88 let/s g" t" side#ar 0"r a $inute.
'Side#ar):
Ms. Ste##ins: *o& your honor& 0'm not $oin$ to as her 'hether ,r. -urray 'as an employee or
independent contractor& or as for anythin$ on that issue. )ut she's testified at len$th that it doesn't
matter to her assessment +ecause she advises exactly the same thin$ for employees and independent
contractors. 0 need to esta+lish that that position that she's tain$ is at odds 'ith pretty much every
other HR professional in the country. 0n order to do that& 0 need to lay some foundation that she no's
the difference& that it's somethin$ she uses in her field& and 'hat some of those differences are. 0 thin
that's fair& 0 thin it's relevant& and 0 thin it's important to understandin$ and potentially critici=in$ her
testimony.
Mr. anish: Well& first of all& ho' is she $oin$ to esta+lish that it's at odds 'ith every other
professional( 3hat's hearsay. 3hat has nothin$ to do 'ith her +asis. 5irst she tries to rely on those trade
pu+lications 'hich are not authoritative and not meetin$ the re4uirement of evidence code :?9& 'hich
is re4uired +efore it can even +e used in cross examination. *econdly& the court has made a rulin$ 66 0'm
happy to open up 'hether he's 66 +ecause she $ave an opinion in her deposition on these issues& 'hich
is contrary no' to 'hat you've ruled and 'hat you said 'e can as. *o 66
Judge: Well& my rulin$ 'as that -urray 'as an independent contractor& 'asn't it(
Mr. anish: /es.
Ms. Ste##ins: /our rulin$ 'as that at summary 1ud$ment& your honor.
Mr. anish: Well& no. /ou ruled 66
Judge: *o 0'm 'onderin$ 'hy are 'e 66
Ms. Ste##ins: Here's 'hy it matters. *he's 66 !E" #ive 66 -r. 3rell testified that !E" #ive has
different policies for the hirin$ and retention of employees and the hirin$ and retention of independent
contractors. !nd 'e 'ill have expert testimony that 'ill esta+lish that this is commonplace and this is&
in fact& 'hat most companies do in terms of 'hat ind of checs they run& ho' they're +rou$ht in&
'hether 66 you no'& 'hether they're done throu$h process a 'ith resumes and +ac$round checs or
process + 'ith contracts. *he's testified at len$th that these materials mae no difference& that there 66
that it's the same process for +oth employees and independent contractors& and in her vie' as an HR

expert& 'ith all the 'ei$ht that that implies& she says that the hirin$ processes should +e the same as
lon$ as they're doin$ 'hat she considers to +e the same 1o+. 0 thin& your honor& the distinction +et'een
independent contractors and employees& +ecause it is the +asis for ho' !E" #ive divides up its
retention process& is fair $ame for cross examination& particularly since& your honor& every piece of
evidence sho's that the standard !E" #ive process for retainin$ independent contractors 'as follo'ed
in this case up to the point that it 'ould have +een had an a$reement actually +een entered. *o for her
to come in and critici=e that process and say& 2that's inade4uate& you have to use the process used for
employees&2 0'm entitled to explore the difference.
Mr. anish: *he testified as to ,r. -urray's position specifically. 0f 'e 'ant to $et +ac 66 0'm happy
to sho' that he's an employee. )ut she said specifically ,r. -urray. -r. 3rell $ot up there 'ith no 66
other than hearsay he relied on& no experience 'hatsoever and laid this out for the 1ury8 and 'e're
respondin$ to that as it relates to ,r. -urray. )ut if 'e're $oin$ to $et +ac into independent
contractorBemployee& 0'm happy to +rin$ that out& +ecause then the 1ury can infer 'hatever they're $oin$
to infer. )ut 'e 'ere limited on your rulin$. We& o+viously& disa$reed 'ith it8 +ut you made it& and 0
'as limited on 'hat 0 could as her in direct examination. 0 couldn't $et into the differences +ecause
you ruled as a matter of la' at the summary 1ud$ment ,r. -urray 'as an independent contractor& and
you ruled that 0 had to as that assumption that he 'as hired. !nd then counsel tried to exploit that to
mae it loo lie she's assumin$ a fact& 'hich the court re4uired us +y 'ay of motion in limine. *o it's
really misleadin$ the 'ay she did that +ecause it 'as re4uired +y a court order& and 66 and rather than
say that& she tried to su$$est that she assumed somethin$ rather than $ive an opinion& 'hich she has an
opinion on that 'hich the court 'ouldn't allo'. *o on this issue of the independent contractor& on this
issue of these assumptions& it's not relevant. /ou've already ruled that. )ut if 'e're $oin$ to reopen this
66 so 0'm happy to reopen it& +ecause 0 +elieve the evidence has sho'n contrary in this trial.
Ms. Ste##ins: /our honor& a$ain& these are t'o different issues. .ne is the issue of 'hether ,r.
-urray is an independent contractor or employee. 0 don't thin your honor has made any evidentiary
rulin$s excludin$ anythin$ Plaintiffs 'anted to present other than your honor has precluded all experts
from testifyin$ on the issue of 'hether someone 'as hired and main$ that an assumed fact.
Judge: 0 excluded everythin$ concernin$ him +ein$ an employee. 3hat's 'hy 0 noced out some
causes of action.
Ms. Ste##ins: %ertainly& your honor.
Judge: 3hat 'as respondeat superior& 'ent out the door +ecause of that.
Ms. Ste##ins: 0'm not tryin$ to reopen that door here. What 0'm tryin$ to do is 66 she's 1ust testified at
least 9@ times that the distinction is immaterial& and that it 'as 'ron$ for !E" #ive to have different
hirin$ practices for independent contractors and employees. *he's $iven that opinion as an expert. 0
have to +e a+le to cross6examine that. 0 have to +e a+le to say& you no'& 2are there differences( ,o
they matter in some areas( ,o other HR personnel feel the same 'ay you do that the distinction is
immaterial(2 she'll pro+a+ly say yes8 +ut 0'm entitled to explore that& your honor.
Mr. anish: *he said& as to ,r. -urray 66 remem+er& 0 'asn't the one that opened up this exhi+it. 3his
'as counsel on their direct examination.
Ms. Ste##ins: What exhi+it(

Mr. anish: 3he one that's up there& HIE. 3hat 'as their exhi+it that they 'ent throu$h over my
o+1ection 'ith -r. 3rell. 0 said it's not relevant on an employee& and they in1ected it into the case. 0
didn't as -r. 3rell a+out that. 3hey in1ected it. 7o' they 'ant to eep in1ectin$ this into the case. 0
'ould 1ust as soon open it up& let us put on our case for respondeat superior& if that's 'here 'e're $oin$&
and let the 1ury decide 'hether he's an employee or not& and let us $et into that. 0 'ould lie to do that8
+ut 0've +een limited& and you've told me on several occasions that& 2-r. Panish& 0 have ruled as matter
of la' that ,r. -urray is an independent contractor.2 no'& 0 didn't a$ree 'ith that& +ut you've said it& so
therefore& 0 haven't +een $ettin$ into this. 0'm only respondin$ to 'hat -r. 3rell testified as their alle$ed
person most no'led$ea+le relyin$ on incredi+le amounts of hearsay to even $ive these opinions.
Mr utna$: 3hat's 'hat a person most no'led$ea+le does& your honor. 0f you loo under the statute&
the statute re4uires& your honor& they're to determine 'hat the company no's. !nd there are a num+er
of 'ays to do that& includin$ talin$ to the people 'ho actually have the experience& and that is 'hat he
did to +ecome the person most no'led$ea+le or the P.-.;.
Mr. anish: 3hat's not 'hat it says in the statute. 0 no' 'e $et sidetraced& +ut this 'hole
2understandin$2 issue 66 and 0 have all the transcripts& that's 'hat it 'as& this 'hole 2your
understandin$.2
Ms. Ste##ins: /our honor& this is all a hu$e distraction. 0 don't thin 'e need to revisit the summary
1ud$ment or prior rulin$s. -s. *ea'ri$ht $ave an opinion at her deposition& and that your honor
allo'ed her to $ive +ased on the motion in limine rulin$s& that the distinction +et'een independent
contractor and employee 'as immaterial for hirin$ purposes.
Mr. anish: 3here 'as no motion in limine on that.
Ms. Ste##ins: 0 $ave 66 'e $ave a motion in limine to exclude all her testimony& and 66 and 0 said she
can't even define 'hat an independent contractor is& and you said 66 and you $uys& in response& said&
'ell& that doesn't matter +ecause her ar$ument is immaterial. 0 am 66 it is a+solutely critical for me to +e
a+le to explore 'hether that is a reasona+le position to tae& that the distinction is immaterial& that 66
'hether her position is consistent 'ith other HR practitioners& 'ith pu+lications she relies upon. .ne of
the documents 0 plan to rely on is somethin$ she produced at her deposition as part of the +asis for her
opinions. 0 have to +e a+le to cross6examine her on that& your honor.
Judge: #et me read my motion in limine.
Mr. anish: 0 don't no' 'hich one she's talin$ a+out. 3he only one 0 no' a+out her 'as 66
Ms. Ste##ins: 3his is all 0'm talin$ a+out.
Mr. anish: Pardon me(
Ms. Ste##ins: 3his is all 0'm talin$ a+out& is the motion to exclude -s. *ea'ri$ht's testimony.
Judge: Ri$ht& there 'as a motion in limine.
Mr. anish: !nd it 'as denied& and there 'as a separate rulin$ 0'm referrin$ to& 'here you said
'hether he 'as retained& et cetera& as opposed to 66 'e taled a+out that. )ut then 66 0 don't no' if 0
have that 66 youn$ 66

Ms. Ste##ins: 0 thin it's in the other order.

Mr. anish: Here's another one& thou$h& on -s. /oun$& 'ho is their expert. 3he court says that 66 the
court says ri$ht here Plaintiffs as for clarification& the court found ,r. -urray 'as& as a matter of la'&
not an employee. 3he court finds that +ased on the evidence presented at summary 1ud$ment& that is the
la' of the case and ,r. -urray& assumin$ he 'as hired& 'as an independent contractor& not employee.
3his is so 66 'hy the court did it. 3his is 'here you say that. 3hat's your rulin$ in response to the
motion in limine.
Ms. Ste##ins: 3hat is your honor's rulin$.
Mr. anish: We need to $o $et the *ea'ri$ht one& +ecause that's not it.
Judge: 3his is the one concernin$ roma youn$.
Mr. anish: Ri$ht. )ut it's the same rationale 'hich you $ave.
Ms. Ste##ins: Here's the issue& your honor. 3he 4uestion is not 'hether he's an employee or
independent contractor. 0 don't thin the Plaintiffs have opened that and 0 don't intend to open that. 3he
4uestion is 'hat their expert 1ust testified to& 'hich is it doesn't matter 'hether they're an employee or
independent contractor& you have to run the same +ac$round checs and you have to do the same
process. !nd that's 'hat she& as an HR expert in the field& +elieves is necessary here. *he says& 2it
doesn't matter 'hat classification they are. 0 don't care a+out la+els. What matters is 'hat the 1o+ is.2
that's her opinion& the opinion she's $ivin$ in this case. 0'm entitled to cross6examine that and say& 2even
if you don't +elieve it maes a difference& -s. *ea'ri$ht& the materials that you rely upon do& others in
your industry do&2 and that's fair cross examination& your honor.
Judge: Ho' is it different( Why don't you tell me a little +it a+out 66
Mr. anish: *he said that as to ,r. -urray no'. 3hat's 'hat 'e've +een focusin$ on& ,r. -urray. 0
don't no' ho' she's $oin$ to say other people in the industry say differently. 3hat's hearsay.
Ms. Ste##ins: 3here 'as also a lot& your honor& a+out statistics in -r. Panish's direct examination& and
'hether statistics matter to her opinion. 0'll $ive you an example. -s. *ea'ri$ht presented a report at
her deposition on HR practices& +ac$round checin$ practices in the country. *he presented it and said
it 'as one of the thin$s she relied upon in formin$ her opinions in this case.
Mr. anish: 3hat's not true. /ou produced it.
Ms. Ste##ins: 7o. 3his is a document she produced& the hi$hri$ht survey.
Mr. anish: 7o& no& no. 0f she relied on a specific document in her deposition& you could cross6
examine her on it. 0'm not sayin$ that. )ut 'hat 'e 'ere dealin$ 'ith is this document that you +rou$ht
to the deposition and cross6examined her on.
Ms. Ste##ins: 5irst off& your honor& 0 haven't attempted to introduce any documents& yet. 0 intend to
cross6examine her on the documents she produced as 'ell as the document that is similar to surveys
she has relied upon in prior expert reports produced +y a company that she's relied upon in prior expert

reports to as her 'hy she's not relyin$ on it in this case. )ut settin$ that one aside for a moment& your
honor 66 and it is the ind of report relied upon in her field& and the ind of thin$ that is the fair +asis
for cross examination& and she testified a+out it on direct examination. *he testified that there 'ere
certain thin$s in that report that 'ere 'ron$. 0 can sho' and 'ill sho' on cross examination that thin$s
she said a+out the report on direct examination are false. 0 have to +e a+le to do that. #et me finish& -r.
Panish. 3he other report 'as somethin$ that she produced at her deposition. !nd she's $ivin$ an
opinion that says it doesn't matter& independent contractor or employee& same +ac$round checs. 3his
is a report on +ac$round checs& it's a survey on +ac$round checs& and it sho's that companies have
'ildly different percenta$es of 'hether they conduct +ac$round checs on employees or independent
contractors. 3hey conduct +ac$round checs on employees at three to four times the rate they do on
independent contractors& and that's a report she relied upon in formin$ her opinions in this case. 0 thin
it's fair cross examination& your honor.
Mr. anish: 5irst of all& the one she didn't rely 66 they have to $ive the proper foundation +ecause she
66
Judge: 0t sounds lie she relied on it herself.
Mr. anish: *he hasn't laid any foundation yet.
Judge: 0 assume she 'ill.
Ms. Ste##ins: 0 'ill.
Mr. anish: 0f she relied on it or if it's authoritative +y another expert& that's fine under :?9. 0'd lie to
$et +ac and as her a+out employee 4uestions& +ecause 0 thin they're openin$ it up.
Ms. Ste##ins: 0'm not asin$ 'hether he 'as an employee or independent contractor. 0'm asin$ a+out
her opinion specifically& an opinion that she $ave and specifically addressed in response to -r. 3rell's
testimony as 'ell as her o'n opinion in this case that it doesn't matter and that no+ody does somethin$
66 it 'ould +e unreasona+le 66 that 'as her 'ord& 2unreasona+le2 to have different procedures in place
for employees and independent contractors.
Judge: )ut yet the literature that she relied on says somethin$ different.
Ms. Ste##ins: Exactly. 0t's fair cross.
Judge: 0 thin that's fair $ame. -s. PanishC #et's see. We haven't had the 4uestion yet. 0 found the
opinion on her.
Judge: #et me see it.
Mr. !"yle: 0t's that top one.
Judge: 0 didn't say that much.
Mr. anish: 3hat's 'hat you said& +ut you 66 you did say the one thin$ on the assumption that 0
couldn't $et into& and then she tried to $et into it.

Ms. Ste##ins: Just for the record& 0 'as not in any 'hat attemptin$ to mislead. 0 'as 1ust tryin$ to
clarify that he ased the one 4uestion at the +e$innin$& 2this is your assumption(2 and then he never
ind of re6clarified that. 0 1ust 'anted to mae clear that all of it 'as +ased on the assumption. !nd you
$ave the instruction to the 1ury& they understand 'hat their role is.
Mr. anish: )ut 0 ased her to assume that +ased on an order that 0 'as $iven +y the court. 3hat
4uestion 'as never ased.
Judge: .ay. Well& 0 thin 0 clarified 66
Mr. anish: 0'm $oin$ to as it& clarify later that the court ordered that 0 have to as that 4uestion. 0t
'asn't my intention& you ordered us to do that8 and you said if counsel doesn't& you're $oin$ to strie it.
3hat's exactly 'hat you said.
Ms. Ste##ins: !s her honor has instructed the 1ury multiple times& it's their determination to mae and
all the experts are $oin$ to assume it one 'ay or the other. 0 don't 66
Mr. anish: /ou said all counsel are cautioned8 and you $o on to say& therefore& any opinion retained
or hired 'ill +e stricen& any 66 so you cautioned me& and 0 follo'ed 'hat you said.
Judge: 0 cautioned every+ody.
Mr. anish: Well& 0'm the first one doin$ it. !nd then& for her to say& oh& +ut 66 0 mean& that's a little
misleadin$& 0 'ould say.
Judge: !nd re$ardin$ the 2understandin$2 thin$& 0 'as thinin$ a+out it the other ni$ht. 0 thin 'hat
happened 'as +ecause all these emails 'ere +ein$ presented& 'e 'ere asin$ 'itnesses& 2'hat 'as
your understandin$ 662 the recipients& 2'hat 'as your understandin$ the emails meant(2 it $ot a little
loose after that.
Mr. anish: 0 have all the transcripts.
Mr utna$: We a$ree& your honor.
Mr. anish: 0 have every time they did it to $et the hearsay in& and it is extensive in this case.
Judge: 0'm 1ust sayin$ 0 thin it started off 'ith& 2'hat 'as your understandin$ 'ith this email(2
'hich is perfectly fine& +ut it $ot really loose.
Mr utna$: We a$ree.
Mr. anish: 0t $ot into hearsay& 2'hat is your understandin$ +ased 662 and they $ot all the hearsay in.
Ms. Ste##ins: 0t 'asn't one6sided& 1ust for the record.
Mr utna$: 3hat's 'hy 66 as noted +y your honor& it arose 'hen asin$ people 'ho hadn't received
the email 'hat their understandin$ of the email 'as& and then it moved from there.
Mr. anish: 3hat's not true& +ecause 0 'asn't allo'ed& over o+1ection& to use any email 'ith any

'itness that 'asn't on the email. 3hat 'as 66 +y their o+1ection. !nd if you'll loo 66 0 have the
transcript. 0t says very clearly. 0 'as the one o+1ectin$ to all that& sayin$ there's no hearsay o+1ection. 0t
'as allo'ed over my o+1ection& and there are numerous o+1ections that 0 made on that exact +asis
'hich 'ere overruled 'ith some ind of hearsay exception.
Ms. Ste##ins: 3here are o+1ections that 0 made to hearsay that 'ere overruled& as 'ell8 and 0'm sure
your honor had a +asis for main$ the rulin$s 'hen she made them8 and 0 thin this is all off topic and
'e should $o +ac out there.
'the 0"ll"wing 2r"&eedings were held in "2en &"urt- in the 2resen&e "0 the (ur"rs):
Ms. Ste##ins: Ms. Seawright- I want t" #e really &lear. I/$ n"t as,ing 0"r any ty2e "0 legal
&"n&lusi"n here- "nly as an <? e+2ert.
;. .ay( %an you $ive me a 'orin$ definition of independent contractor(
!. !$ain& there is no precise definition for an independent contractor. 3here are different employment
re$ulations& there are different la's that are out there& and dependin$ on the one you're talin$ a+out&
they define independent contractors differently. *o there is no one 'orin$ definition of an independent
contractor.
; can you even $ive me a $eneral definition(
!. 0 mean& no& +ecause 0 don't thin of it in terms of a definition of an independent contractor. 3here
may +e characteristics of an independent contractor8 +ut in terms of a definition& 0'm not a'are of a
precise definition.
;. Well& let me $ive you a definition and as if you a$ree 'ith it. !nd this is from the merriam6'e+ster
una+rid$ed dictionary. 2independent contractor. 7oun. .ne that contracts to do 'or or perform a
service for another and retains total and free control over the means or methods of doin$ the 'or or
performin$ the service.2
Mr. anish: It &alls 0"r a legal &"n&lusi"n.
Judge: O1erruled.
;. !$ain& only as an HR expert& 'ould you a$ree or disa$ree 'ith that definition(
!. 0 can't a$ree 'ith that. 3here's& perhaps& much more to it than that8 so 0 can't 1ust a$ree to that
limited lan$ua$e.
;. )ut you can't $ive me an even more complex definition that you 'ould use in 66
!. 0 don't thin of it in terms of a definition. 3hat's 'here 0 stru$$le 'ith that. 3here 1ust isn't one that
is precise for an independent contractor.
;. !nd you don't thin it's important for you to +e a+le to define 'hat an independent contractor is in
your field(

!. 0t isn't the definition that is the issue.

;. )ut it is important to understand the re$ulations related to independent contractors and the rules
surroundin$ them relative to employees(
!. 5rom my perspective& from an HR perspective& it's important to 66 to +e a+le to identify the +est 'ay
to 66 to hire a 'orer that 66 in a 'ay that minimi=es the ris& in a 'ay that& you no'& determines
'hether or not they're fit and competent& re$ardless of the la+el. 3hat is 'hat the issue is 'hen it comes
to hirin$ a 'orer.
;. !nd 0 understand all of that& -s. *ea'ri$ht. 0'm 1ust asin$ 'here there are differences& is it
important for you to no' those differences so you can advise your clients(
!. 0t's important for me to +e a+le to help my clients determine the +est 'ay to handle a 'orer&
'hether it +e a contractor& a temporary& a seasonal& an employee& a re$ular employee& a part time& full
time& exempt& nonexempt. /ou no'& the 4uestion is 'hat is the proper method of hirin$& coachin$&
terminatin$& re$ardless of 'hat the la+el is.
;. *o is that a yes or a no(
!. %an you as the 4uestion& a$ain( 0'm sorry.
;. /es. Where there are differences +et'een independent contractors and employees& is it important
for you to +e a+le to advise your clients as to 'hat those difference are and the conse4uence of them(
!. 0t depends 'hat differences 'e're talin$ a+out. 5or example& there mi$ht +e a tax conse4uence&
and 0'm not a %P!.
;. Ri$ht. )ut 'ould you advise your clients that there could +e tax conse4uences(
!. 0 'ould tell them to spea to a %P!.
;. *o that 'ould +e somethin$ 66 an important difference +et'een contractors and employees that you
'ould note& and you 'ould advise them to consult a tax professional(
!. Well& 0 don't no' +ecause 0'm not a %P!.
;. 5air enou$h. !. 3hey relate to your industry& it's important to no' the difference( 0'm not meanin$
this to +e a hard 4uestion& -s. *ea'ri$ht.
!. !nd 0'm sorry. 0'm not meanin$ to not $ive you an ans'er. Just there's not a precise definition& so
0'm looin$ at it from a standpoint of a 'orer and 'orin$ 'ith an individual and 'hat the issues are
associated 'ith that. Re$ardless of 'hat the classification is& 0'm looin$ at it from a 'or standpoint.
;. *o if it has any +earin$ on the 'or or on the HR6related issues& you 'ould need to no' the
differences& ri$ht(
!. 0f 'hat has a +earin$ on that(

;. 0f the fact that someone is an employee or independent contractor has different effects in your field.
5or instance& they're paid differently 66 correct( 66 sometimes& $enerally(
!. 0f they are& then& a$ain& 0 'ouldn't +e a+le to advise on precisely ho' to handle that from a tax
perspective. *o 66 +ut to the extent that it mi$ht cross over into somethin$ in my field& 'hatever that
mi$ht +e& 0 don't no' 'hat that 'ould +e& so 0 $uess 0 mi$ht need an example of 'hat it mi$ht +e. /ou
said pay.
;. 0 $uess is it ever important in your field to no' the difference +et'een an independent contractor
and an employee(
!. 3ypically not from an HR perspective& other than 66 you pointed out for the !E" process& for
example& that there's a contract. We don't draft contracts& 'e don't 'rite contracts& 'e're not attorneys&
+ut 'e're a'are that there 'ould +e a contract& perhaps an independent contractor relationship. 7o'&
ho' that fits into HR& it really isn't a factor& usually. )ut 'e're a'are that it exists.
;. *o it's your testimony that there are no important HR differences +et'een independent contractors
and employees(
!. 0'm not $oin$ to say no8 +ut& a$ain& it really depends 'hat 'e're talin$ a+out 'hether or not it's a
distinction that is an issue.
;. 0 $et that it depends& +ut does it sometimes matter(
!. 0n 'hat re$ard(
;. 0n any re$ard.
!. 0n terms of pay( !re they on the payroll or are they a 9AHH( 3hat mi$ht +e an area 'here there's a
distinction. .nce a$ain& 0'm not a person to deal 'ith the tax side of that& +ut that mi$ht +e a distinction.
;. *o payroll mi$ht +e one place 'here 66
!. Payroll mi$ht +e one& yes.
;. What a+out +enefits( 0s that a place 'here independent contractors and employees mi$ht +e
different(
!. 3here may +e cases 'here contractors are not receivin$ +enefits 'here re$ular 'orers are.
; and payroll taxes& they're 'ithheld from employees and $enerally not from independent contractors(
!. 0n the $eneral sense. 7ot $ivin$ any %P!. advice here8 +ut yes& that's my understandin$.
; and 0'm only asin$ for your +asic understandin$ in the $eneral sense. 0'm 66 0 no' there could +e
exceptions or variations or 'hat have you. 0'm 1ust asin$ for a +asic 'orin$ understandin$. !nd they
66 there are other differences that are often in play& too& ri$ht( 5or instance& an employee 66 let's tae an

example. /ou o'n an HR consultin$ company& ri$ht(

!. /es.
;. 0f you needed& say& an administrative assistant for your office& one thin$ you could do is hire a full6
time administrative assistant& ri$ht(
!. 3hat's one thin$ 0 could do& yes.
;. !nd you could also hire a part6time administrative assistant(
!. /es.
;. !nd you could 66 you could do that throu$h a temp a$ency& perhaps. )ut let's say you 'ant a
permanent& full6time employee. 3hen you 'ould pro+a+ly advertise for an employee(
!. Well& first of all& 0 don't hire permanent employees. 0 don't tal in terms of permanent employees.
;. !n employee 'ho you don't plan on terminatin$ in the immediate future. 0n other 'ords& 0
understand it's not permanent in the sense of they're +ound for life. )ut 1ust an employee 'ho is not a
temporary employee& 1ust hirin$ an employee.
!. .ay.
;. 3hat's somethin$ you could do 66 ri$ht( 66 for 66
!. 3hat's somethin$ 0 could do.
;. !nd then you'd pro+a+ly set hours for your administrative assistant to 'or(
!. /es& 0 could do that& or 0 could not. Just depends on the nature of the 1o+.
;. Well& it's an administrative assistant 1o+ for your office& *ea'ri$ht < !ssociates.
!. Well& a$ain& dependin$ on 66 'e're pro1ect6+ased& so 0 may need an administrative assistant 1ust
periodically or to 'or on certain pro1ects& so it 'ould depend.
;. )ut assumin$ you hired one& you 'ould 'ant them to +e there 'hen you 'anted them to +e there&
ri$ht(
!. /es.
;. *o you 'ould set some hours for them& even if they 'ere varied(
!. ,ependin$& a$ain& on the 'or. )ut& you no'& 0 may say to an administrative assistant& 2Here's the
1o+. /ou're 'orin$ on this particular 1o+& and it doesn't matter to me 'hen you do it& +ut here's 'hat
needs to +e done on this pro1ect and that's 'hat 0'm hirin$ you for.2
;. /ou mi$ht train your hiree 66 your ne' employee on the company pro$rams or practices(

!. 0 usually 'ouldn't need to do that for an administrative assistant. 3hey no' 'ord and microsoft
and outloo& so 0 'ouldn't necessarily need to do that.
;. *o there's 1ust really nothin$ unusual a+out +ein$ an administrative assistant at *ea'ri$ht <
!ssociates(
!. ,epends on 'hat the 'or is& 'hat 66 the particular pro1ect or the scope& +ut it could +e very
$eneral in nature.
;. *o you could provide some trainin$& ri$ht(
!. 0 66 in terms of do 0 have the a+ility(
;. Well& 0 $uess does *ea'ri$ht < !ssociates train ne' employees in any 'ay 'hen they're hired(
!. ! consultant& 'e 'ould train.
;. *o let's say consultant rather than administrative assistant.
!. .ay.
;. /ou 'ould train a consultant in the 'ays of the company& ri$ht(
!. /es.
;. Jntil they 66 even set expectations for the consultant(
!. /es.
;. /ou 'ould pro+a+ly revie' the consultant's 'or to mae sure it 'as meetin$ the standards of your
company(
!. /es.
;. !nd assumin$ this consultant is an employee& you 'ould mae sure that taxes 'ere 'ithheld from
the consultant's paychec(
!. 0f they 'ere on my payroll& yes.
;. !nd you mi$ht offer a medical plan for them(
!. 0 don't offer a medical plan.
;. *o *ea'ri$ht < !ssociates does not offer medical plans(
!. 7o.
;. )ut if you offered medical plans you 'ould offer it to your employees& ri$ht(

!. 0f they 'ere eli$i+le.

;. !nd other lie FA9 plans(
!. 0 don't offer that8 +ut if 0 did& and they 'ere eli$i+le& they 'ould have to met certain criteria.
;. 7o' let's say instead of hirin$ a ne' consultant& you 1ust 'anted someone to paint *ea'ri$ht <
!ssociates& needed to freshen up the office. ,o you have an office(
!. /es.
;. 7o'& in that case& you 'ould not hire an employee to come +e the painter for the office& ri$ht(
!. Well& 0 could& +ut 66
;. /ou could& +ut you pro+a+ly 'ouldn't& ri$ht(
!. 0 pro+a+ly 'ouldn't.
;. )ecause *ea'ri$ht < !ssociates is a consultin$ company& not
!. Paintin$ company(
!. )ecause 'e don't have time. While 0 mi$ht en1oy doin$ that& 0 don't have time.
;. Ri$ht. )ut it 'ouldn't mae sense for a consultin$ company to hire a full6time painter on the payroll
if you 1ust needed them to paint the office 66 ri$ht( 66 once(
!. 0t 'ouldn't mae sense to do that& no.
;. )ecause you only have to paint your office one time& they're $oin$ to come in and then they're
$oin$ to leave a$ain& ri$ht(
!. Ri$ht.
;. !nd the painter 'ould liely either +e an independent contractor or an employee of some paintin$
company& ri$ht(
!. .r 66 yes& or a friend& or 66 uh6huh& my son& or somethin$ lie that& yes.
;. 5air enou$h. 0'm $oin$ to assume this is a 66 a painter that is a professional painter.
!. .ay.
;. /our son may +e a professional painter& +ut assumin$ that he's not.
!. He's not. 7ot even close.

;. *o you could hire a paintin$ company& and they 'ould send a painter to your office& ri$ht(
!. /es.
;. !nd at that point& *ea'ri$ht < !ssociates 'ouldn't +e the employer of the paintin$ company& the
paintin$ company 'ould +e the employer of the painter that's in your office& ri$ht(
!. 0 'ould not +e the employer& that's ri$ht.
;. !nd you 'ouldn't 'ithhold any payroll taxes for the person 'ho 'as paintin$ the office(
!. 0 'ould pro+a+ly +e payin$ the company that did that.
;. !nd the company 'ould then pay the painter(
!. Presuma+ly& yes.
;. !nd if *ea'ri$ht < !ssociates provided +enefits& you 'ouldn't +e providin$ +enefits to the painter&
ri$ht(
!. %orrect.
;. /ou 'ouldn't +e providin$ insurance to the painter(
!. 7o.
;. /ou 'ould expect to ind of come 'ith all that from his company(
!. Well& 0 'ouldn't have even thou$ht a+out it& +ut 0'd +e hirin$ a company to do that& so 66
;. Ri$ht. !nd in that 66 in that example& the painter could +e an independent contractor& correct(
!. .f 'ho(
;. *orry. 3he paintin$ company could +e a contractor& correct( /ou could have a contract 'ith the
paintin$ company(
!. 0 could have a contract 'ith the paintin$ company.
;. !nd the paintin$ company could 1ust +e a sin$le person
Who han$s out a shin$le and says 2Joe's Paintin$ %ompany&2 ri$ht(
!. /es& it could +e.
;. !nd in that instance& it could pro+a+ly +e an independent contractor(
!. !$ain& depends on ho' you're definin$ that and 'hat la' you're usin$ and ho' you're evaluatin$ it.

;. 5air to say that they 'ould not +e an employee of *ea'ri$ht < !ssociates if you 1ust hired a
paintin$ company to come paint your office(
!. 3hat's true.
;. 7o'& you testified on direct examination that you +elieve in conductin$ +ac$round checs to find
out if potential employees are a $ood fit for a company& correct(
!. %ould you say that a$ain( 0'm sorry.
;. *ure. /ou +elieve in conductin$ +ac$round checs to find out if potential employees are a $ood fit
and competent to do 'or for a company& correct(
!. Potential 'orers.
;. /es. /ou did testify to that(
!. 0 don't recall the precise lan$ua$e that 0 used8 +ut 0 did render an opinion or 0 did mention that& yes&
0 do support the use of +ac$round checs in hirin$ 'orers.
;. )ut not all employees for every position are su+1ect to the same checs& ri$ht(
!. 3hat's correct.
;. !nd there are different inds of +ac$round checs that can +e done in different circumstances. We
taled a+out some of those today& ri$ht(
!. /es.
;. 5or instance& criminal +ac$round chec to find out if someone has a criminal record(
!. 3hat 'ould +e one.
;. Reference checs to find out if they have $ood references(
!. /es.
;. ,-> Records checs(
!. ,ivision of -otor >ehicle(
;. Jh6huh.
!. /es.
;. %redit checs(
!. /es.

;. !nd some of these inds of checs are more common than others& ri$ht(
!. 0t depends on 'hat circumstances you're talin$.
;. Well& 1ust $enerally in the universe& employees 66 employers conduct some of these checs more
often than they conduct other checs& ri$ht(
!. 5rom the survey data that is out there& that is 'hat it indicates& that some are more popular than
others.
;. !nd the t'o most popular ones are criminal checs and employee reference checs& ri$ht(
!. ,epends 'hat survey you're looin$ at. )ut 0 no' those are amon$ the top ones typically.
;. !re there any others that you 'ould say are $enerally amon$ the top most common +ac$round
checs(
!. Reference checin$& if you 66
;. 0 thin 0 said reference chec.
!. .h& you said reference and criminal.
;. Reference and criminal are the t'o 0 said.
!. 0 don't have the statistics in front of me to no'8 +ut 0 +elieve department of motor vehicle checs
'ere common& as 'ell8 and there are certain credit checs& and 0 'ould say those are fairly common& as
'ell.
;. )ut you 'ould say the t'o 0 mentioned& the reference checs and criminal checs& are +y far the
most common& correct(
!. 0 'ouldn't say +y far8 +ut they are the most common& from 'hat 0 recall.
;. /ou taled a little +it earlier a+out the issue of 1o+ relatedness 'hich is the +ac$round chec that's
$oin$ to +e done has to +e related to the 1o+ that is $oin$ to +e placed& ri$ht(
!. 3hat it should related to a 1o+.
;. 5or instance& if a restaurant is hirin$ a ne' chef& they mi$ht do a reference chec from the prior
restaurant 'here the chef 'as 'orin$ for& ri$ht(
!. 0'm not sure that's 'hat 1o+6related means& per se8 +ut a reference chec is a reference chec& so
'herever some+ody 'ored& 'hether it 'as a restaurant or not& you 'ould conduct a reference chec
for previous employers& re$ardless of 'hether or not it 'as a restaurant if you 'ere hirin$ a chef.
;. )ut if you're hirin$ a chef& you 'ouldn't 66 pro+a+ly 'ouldn't do a ,-> Records chec unless the
chef 'as $oin$ to +e drivin$ for some reason(

!. 0f the position involved drivin$ for a company +usiness& then normally you 'ould.
;. Ri$ht. )ut 0'm
talin$ a+out 1ust a chef 'orin$ in a restaurant.
!. 3ypically that 'on't +e necessary& that's ri$ht.
;. )ecause the chef's drivin$ a+ility has nothin$ to do 'ith their a+ility to +e a chef& ri$ht(
!. 3hat's ri$ht.
;. !nd the restaurant is pro+a+ly not $oin$ to run a credit chec on the chef either& ri$ht(
!. 7ot necessarily so. 0f the chef is doin$ the orderin$ and has the a+ility to $o into the system and
access a company's credit& or information lie that& then they possi+ly could.
;. Well& let's say 'e have a chef 'ho has nothin$ to do 'ith the company finances& doesn't access the
+ills& doesn't access the credit cards& the records& 1ust maes really $ood meals in the itchen. 0n that
instance& you 'ouldn't need to do a credit chec& ri$ht(
!. 0'd have to loo at the totality of the circumstances& a$ain& 1ust to +e certain& +ecause 'e do analy=e
the 1o+ very carefully to loo at& you no'& are they $oin$ to +e& perhaps& $oin$ into people's homes
and deliverin$ meals or caterin$& thin$s lie that 66
;. 3his is a chef that's only 'orin$ in a restaurant& 'e've esta+lished that& doesn't drive any'here&
doesn't $o any'here.
!. Pro+a+ly not necessary.
;. )ecause you can +e a $ood chef 'ith poor credit& ri$ht(
!. /es& you can +e.
;. !nd if 0 have $ood credit& that doesn't mae me a $ood chef(
!. 7o& not necessarily& no.
;. )ut not payin$ my +ills 'on't mae me a +ad chef& either( 0 can still +e $ood in the itchen and 1ust
+ad 'ith paper'or(
!. 3hat's true.
;. 3he t'o of them are really 1ust unrelated& your chef sills and your credit(
!. 3hey're unrelated& yes.
;. *o they 'ould not pass that 1o+6relatedness test 'e 'ere talin$ a+out earlier(
!. )ased on the very limited information you provided& that 'ould +e true.

;. .ay. 7o'& let's $o +ac to our painter example for a moment. #et's 1ust say you 'ant a painter for
your office& you're $oin$ to hire this company one time to paint your office and that's it. /ou 'ouldn't
necessarily post an advertisement for a painter 66 ri$ht( 66 in the 'ay that you 'ould for a ne'
consultant(
!. 7ot in the same 'ay& no.
;. /ou pro+a+ly 'ouldn't place an ad at all& ri$ht(
!. Pro+a+ly 'ould not place an ad& no.
;. /ou mi$ht use a painter that you already ne'& the person 'ho painted the office last time and did a
$ood 1o+(
!. Jh6huh& yes.
;. .r you mi$ht as your friends for recommendations& 2Hey& does any+ody no' a $ood painter(2
!. 0 may do that.
;. .r you could loo in sort of a professional directory lie the yello' pa$es and find a painter that
looed lie a $ood painter(
!. 0 could do that.
;. !nd you 'ouldn't as this painter to fill out a 1o+ application for *ea'ri$ht < !ssociates(
!. 0 pro+a+ly 'ould not for that position.
;. Would you conduct a credit chec on the painter(
!. ! painter 'ho's paintin$ the office(
;. Ri$ht. ! paintin$ company that's paintin$ the office.
!. ! paintin$ company& more liely than not& 0 'ouldn't.
;. )ecause it's not related to his 1o+& ri$ht(
!. %orrect.
;. /ou can +e a $ood painter 'ith poor credit& or vice versa(
!. /es.
;. 7o'& 'e taled a moment a$o and a little this mornin$ a+out the idea of 1o+ relatedness& and you
said that a +ac$round chec should +e 1o+6related& ri$ht(

!. /es.
;. !nd it's true& isn't it& -s. *ea'ri$ht& that a company can $et in trou+le for performin$ +ac$round
checs that are not 1o+6related(
!. ! company can +e accused of discriminatin$ in employment decisions if 66 if they're a $reater
ne$ative impact on certain $roups throu$h +ac$round checin$ or reference checin$.
;. )ecause it's not le$al to mae re4uirements for a 1o+ that has nothin$ to do 'ith the 1o+(
!. 3here's no la' that says that you can't have re4uirements that aren't related to the 1o+. 3here's no
la'& per se& lie that.
;. )ut if you have such re4uirements& you could +e accused of discrimination& particularly if those
re4uirements affect some $roups more than others(
!. 0f they do8 or if they& indeed& have involved an act of discrimination 'ith re$ard to the individual in
4uestion.
;. 5or instance& if the %alifornia *tate )ar created a rule that all la'yers had to +e at least D feet tall&
that 'ould pro+a+ly not pass the test& ri$ht(
!. Well& that 'ould not +e an employment settin$& so 0 don't no' that these re$ulations 'ould even
apply to that. 3hat's a mem+ership in a +ar.
;. !ll ri$ht. #et's tae my la' firm& .'-elveny < -yers. 0f they said& 2We're only hirin$ attorneys
that are at least D feet tall&2 that 'ould pro+a+ly +e an unfair re4uirement for the 1o+& ri$ht(
!. 3hat 'ould not +e an ille$al re4uirement& necessarily& +ecause in order for it to +e ille$al& it has to
+e on one of the protected classes already defined in the re$ulations.
;. Ri$ht. )ut $ender is a protected class& ri$ht(
!. "ender is& yes.
;. !nd as a $eneral matter& there are more people over D feet tall 'ho are male than female& ri$ht(
!. 3hat& 0 have no earthly idea of. 0 'ouldn't no' that.
;. *o is it your understandin$ that there are a lot of 'omen out there over D feet tall(
!. 0've seen a lot of 'omen over D feet tall& and 0'm close to +ein$ one of them.
;. 0'm @699. 0'm asin$ let's assume that there are more short 'omen than short men 66 more 'omen
under D feet tall than men under D feet call.
!. 3hat there are more 66
;. 66 'omen under D feet than men under D feet.

!. .ay.
;. 0n that case& the company that discriminates& sayin$ only D6feet6tall la'yers and a+ove& could +e
accused of discrimination& ri$ht(
!. !ny+ody can +e accused of discrimination. /es& they could +e.
;. !nd 'ould you a$ree 'ith me that +ein$ tall has nothin$ to do 'ith +ein$ a $ood la'yer(
!. /eah& 0'm sure it doesn't.
;. *o they mi$ht have a +it of explainin$ to do to the federal authorities 'ho came to investi$ate the
alle$ed discrimination(
!. 0f& indeed& that criteria resulted in them discriminatin$.
;. !nd& in fact& the federal $overnment has an a$ency 'hose mission is to address fairness in hirin$
decisions& ri$ht(
!. 3hey have an a$ency that addresses 66 enforces title :.
;. !nd that's the e4ual employment opportunity commission(
!. /es.
;. !nd that 'as created +y the %ivil Ri$hts !ct of 9HDF(
!. /es& that's correct.
;. Which addressed discrimination in a variety of contexts& votin$ and education and pu+lic
accommodations and the lie(
!. 0 only deal 'ith the employment6related aspects of that under title :.
;. !nd title : is a part of the %ivil Ri$hts !ct that addressed employment discrimination(
!. /es.
;. !nd there are a couple of different 'ays employment can +e discriminatory& ri$ht( 0t can +e direct8
you 1ust say& 20 don't 'ant to hire this ind of person2(
!. 0t can +e direct& yes& if you say& 20'm $oin$ to fire you +ecause you fall into one of those protected
classes&2 for example& yes.
;. )ut there are also the ind that 'e taled a+out a moment a$o 'hich are indirect& 'here you mae a
re4uirement that has nothin$ to do 'ith the 1o+ that disproportionately +urdens a protected class(
!. Well& it may have somethin$ to do 'ith a 1o+8 +ut if it has a $reater impact on a protected classes&

then it could possi+ly +e discriminatory.

;. *o tae my la' firm example a$ain. 0f the la' firm says you have to +e D feet tall to +e a la'yer&
and that has nothin$ to do 'ith a la'yer& and assumin$ there are more 'omen that are under D feet tall
than men& that 'ould +e a suspect rule& ri$ht(
!. 0t mi$ht +e suspect8 +ut& a$ain& it depends on 'hat actually happened& 'hat the result of that 'as.
;. )ut someone could $et in trou+le 'ith the EE.% 0f they could not explain 66 find a $ood reason of
'hy they re4uired la'yers to +e D feet tall(
!. 7o. 3hey 66 they could $et in trou+le if their practice actually discriminated a$ainst the protected
class or had an adverse impact on a protected class. 3hat's 66 that's 'here they could $et in trou+le.
;. Ri$ht.
!. 7ot 1ust for havin$ the practice& +ut it has to have 66 it has to have an adverse impact or +e
discriminatory.
;. *o if they had the practice& and as a result& HH men $ot hired and 9 'oman $ot hired& then there
mi$ht +e a case for an adverse impact(
!. !nd it depends on 'hy that one 'oman 'asn't hired. 3here may have +een another reason. 0f there
'as another reason& that may not have +een discrimination.
;. )ut these are the ind of policies that can $et the EE.%'s attention& ri$ht(
!. 3he EE.% ,eals 'ith discrimination.
;. !nd that's 'hy you 'ould advise your clients that their investi$ations and their re4uirements for a
1o+ should +e related to the 1o+& ri$ht(
!. 0 do advise that they should +e 1o+6related& yes& employment decisions in $eneral.
;. !nd there's +een some issues 'ith the EE.% !nd credit reports& isn't there(
!. What do you mean +y 2issues2(
;. 5or instance& the EE.% Has filed la'suits a$ainst companies for conductin$ credit checs on
employee candidates(
!. 0've heard a+out some cases that have +een filed on the +asis of that.
;. 0n fact& the EE.% 66 do you no' 'hat the EE.%'s current policy is on credit checs(
!. 7o8 +ut 0 no' the EE.% conducts credit checs on their o'n investi$ators.
Ms. Ste##ins: N"t $y 3uesti"n.

Mr. anish: She answered it.

;. ,o you no' 'hat their current policy is(
Mr. anish: 4"ur h"n"r- she answered it. ;n".;
%he witness: %hey &"ndu&t &redit &he&,s.
Judge: O1erruled.
%he witness: S" their 2"li&y $ust #e t" re3uire &redit &he&,s- #e&ause that/s 2art "0 their 2r"&ess.
;. *o you don't no' that the EE.% 7o' considers credit checs to +e a prohi+ited practice(
!. 3hey don't consider credit checs to +e a prohi+ited practice at all.
Ms. Ste##ins: All right. Can y"u 2lease 2ull u2 the EEOC/s 2r"hi#ited 2ra&ti&e 2age. I thin,
this is a new e+hi#it
Mr. anish: It/s hearsay- nu$#er 1. Nu$#er @- it/s irrele1ant. I/1e ne1er seen it.
Judge: <earsay.
Ms. Ste##ins: 4"ur h"n"r- it/s n"t hearsay. It/s the ,ind "0 thing an e+2ert in her 0ield reas"na#ly
relies u2"n. She/s stated she has t" ad1ise her &lients as t" EEOC "li&ies.
Judge: %here/s 2r"#a#ly a #etter 88 (udi&ial n"ti&e.
Ms. Ste##ins: Judi&ial n"ti&e with this- y"ur h"n"r.
Mr. anish: :e ha1en/t e1en seen it yet.
Judge: Judi&ial n"ti&e. It/s a law.
Mr. anish: %his is a we#site.
Ms. Ste##ins: It/s EEOC.g"1- y"ur h"n"r. It/s "00i&ial g"1ern$ent 2"li&y listed "n the EEOC/s
we#site.
Mr. anish: 4"u ,n"w- I &"uldn/t get the we#sites that I wanted in. Ander e1iden&e &"de B>> et
se3.- this is n"t a (udi&ially re&"gniCed (udi&ial n"ti&e ty2e "0 d"&u$ent. I $ean- I had the sa$e
LA ,ings we#site and e1erything else- I &"uldn/t get it in.
Judge: 4"u wanted $e t" (udi&ially n"ti&e the LA ,ing/s we#site.
Mr. anish: N". %he se&retary "0 state we#site- I &"uldn/t get that in.
Judge: I thin, y"u g"t that in.

Mr. anish: N"- n"- n" y"ur h"n"r.

Mr. !"yle: :e g"t "ne with a ;0iled; sta$2 in- #ut y"u w"uldn/t let us 2ut in the we#site.
Ms. Cahan: !e&ause it was &u$ulati1e- y"ur h"n"r. :e didn/t get int" whether it was (udi&ially
n"ti&ea#le.
Judge: O,ay. I/ll re&"nsider that i0 y"u #ring it t" $y attenti"n.
Mr. anish: %his is irrele1ant. :as this in e00e&t in @>>5. It/s &"llateral. C"$e "n.
Judge: N"- it/s n"t. All right.
Ms. Ste##ins: Can y"u 2ut it u2.
;. !nd& -s. *ea'ri$ht& are you a'are of this policy(
!. /es& 0 am.
Mr. anish: O#(e&ti"n. It d"esn/t say what she (ust said it says.
;. !nd you're a'are that this is found in the prohi+ited practice section of the EE.%'s 'e+site(
!. 0 am.
;. !nd 'ould you a$ree that it says 2in4uiry into an applicant's current or past assets& lia+ilities or
credit ratin$& includin$ +anruptcy or $arnishment& refusal or cancellation of +ondin$& car o'nership&
rental or o'nership of a house& len$th of residence and address& char$e accounts& furniture o'nership
or +an accounts $enerally should +e avoided +ecause they intend to impact more adversely on
minorities and females2(
Mr. anish: :hat was she reading. %hat/s n"t what we ha1e.
Ms. Ste##ins: %hat/s what I (ust handed y"u. :as that n"t what was "n the s&reen. :e ha1e tw"
EEOC 2"li&ies. She (u$2ed t" the se&"nd "ne.
Judge: Let/s 2ut the right "ne u2.
Mr utna$: :e/re 0i+ing it right n"w- y"ur h"n"r.
Ms. Ste##ins: N"w we/re all l"",ing at the sa$e thing. a$- &an y"u #l"w that u2. S" the title "0
this 88
Mr. anish: :ait a $inute. :hat d"es it say "n the t"2. :hat/s the date "0 this.
Ms. Ste##ins: I 2rinted this last wee,.
Mr. anish: <"w is this rele1ant- what they 2rinted last wee, 0"r the EEOC A. It relates t" AEG

in @>>5.
Ms. Ste##ins: I as,ed Ms. Seawright i0 she was aware "0 the EEOC/s &urrent 2"li&y.
Judge: :ell- it sh"uld relate t" @>>5. :as this in e+isten&e in @>>5.
Ms. Ste##ins: 4"ur h"n"r- I/$ n"t 2"siti1e whether this 2"li&y was in e+isten&e in @>>5.
Mr. anish: %a,e it d"wn.
Judge: %hat is a 2r"#le$.
Ms. Ste##ins: %he issue- y"ur h"n"r 88
Mr. anish: Can we ha1e this ta,en d"wn. %his is 0r"$ (une 1>th- a22arently.
Ms. Ste##ins: %he issue- y"ur h"n"r- is that 88
Mr. anish: June @>17.
Ms. Ste##ins: 88 it has #e&"$e a re&"gniCed 2r"#le$ in the 88 in the industry that Ms. Seawright
a22ears t" #e unaware "0.
Mr. anish: 4"ur h"n"r- e+&use $e. <"w is &"unsel g"ing t" start testi0ying.
Judge: %he 2r"#le$ is i0 y"u &an re2resent that it was the state "0 the law "r regulati"ns that
e+isted in @>>5- then y"u &an tal, a#"ut it. !ut i0 it/s 88
Mr. anish: And &"unsel/s testi$"ny as t" what 2ra&ti&es and 2r"&edures are re&"gniCed- that/s
ina22r"2riate.
Ms. Ste##ins: 4"ur h"n"r- I thin, it/s still rele1ant. Ms. Seawright testi0ied "n dire&t e+a$inati"n
that &redit &he&,s are an i$2"rtant t""l- that they/re 1alua#le. %he issue is that they are ra2idly
#e&"$ing illegal in $any areas.
Mr. anish: E+&use $e. %hat/s n"t true.
Judge: O,ay.
Ms. Ste##ins: :ell- I thin, I/$ entitled t" e+2l"re that with the witness.
Mr. anish: %hey/re &"$ing n"w. C"$e "n- y"ur h"n"r. 4"u d"n/t &he&, guns #a&,gr"und.
Judge: ut it this way. Are y"u g"ing t" #e d"ne with this witness t"day.
Ms. Ste##ins: I d"n/t ,n"w- y"ur h"n"r.
Judge: !e&ause y"u &an 88 t"night y"u &an l"", this u2 and deter$ine whether "r n"t it was in
e+isten&e in @>>5- and then y"u &an g" 0"rward.

Ms. Ste##ins: 4"ur h"n"r- I w"uld argue that it/s rele1ant e1en i0 it wasn/t in e+isten&e in @>>5-
and I/$ ha22y t" 88
Judge: I/$ n"t g"ing t" hear argu$ent n"w. ut this aside- y"u d" s"$e in1estigati"n and we &an
&"$e #a&, t" it.
Ms. Ste##ins: O,ay.
;. 7o' 66 -s. *ea'ri$ht& you are a'are that the EE.% Has actually sued or$ani=ations for
discriminatory use of credit checs(
!. !$ain& 0 don't have precise no'led$e& althou$h 0 66 0 66 0 actually can thin of one case& so yes.
;. !nd 'hile in ?AAH& you testified it 'as not ille$al to conduct credit checs in %alifornia& there are
actually no' restrictions on credit checs in %alifornia& ri$ht(
Mr. anish: O#(e&ti"n= irrele1ant.
Judge: I want t" tal, t" y"u at side#ar. :hy d"n/t y"u ta,e a #rea,. :e/ll stay here- y"u ta,e a
#rea,. 1D $inutes.
%he witness: Can I g".
Judge: 4"u &an ste2 "utside.
'%he 0"ll"wing 2r"&eedings were held in "2en &"urt- "utside the 2resen&e "0 the (ur"rs):
Ms. Ste##ins: Here's the issue& your honor.
Mr. anish: 5irst& the issue is 66
Judge: -r. Panish& let 66
Ms. Ste##ins: 3here's t'o issues. .ne is the credi+ility of this expert. *he claims to +e an expert in
HR& +ut she's una'are of current EE.% Policies& and that $oes to her credi+ility. !. Parently this policy
'as in effect in some form in ?AA:& 0've 1ust +een told. 0 can $et the details on that. 3he issue $oes to
her credi+ility as to her no'led$e of current policies& 'hich 0 thin does affect her credi+ility as an
expert. 0n addition to that 66 and here's the other 66 0 thin it's a more fundamental issue 'ith Plaintiffs'
case in $eneral. 3hey're claimin$ any reasona+le company in ?AAH in these circumstances 'ould have
conducted a credit chec +ecause it is material and it matters and it maes a difference in 'hether or
not the person is competent and fit to do their 1o+. 0n recent years& the reason the EE.% Has issued this
policy and %alifornia la' has +een chan$ed& and a num+er of other states have adopted restrictions& is
+ecause that premise is 1ust false& and it's +een found to +e discriminatory. 0n other 'ords& there are
le$islatures that have enacted statutes limitin$ the use of credit checs +ecause there is no 1o+
relatedness +ecause it is not actually pertinent to their position. !nd 0 thin the reasona+leness of the
claim that -s. *ea'ri$ht is main$& 'hich is that& you no'& any+ody 'ould have done a credit chec
in this circumstance& had they done it& they 'ould have determined ,r. -urray 'as not fit and not

competent 66 0 thin it's si$nificant& your honor& that +oth the state of %alifornia and the EE.% ,isa$ree
'ith that position. !nd 0 thin it's fair cross examination& it $oes to her credi+ility. 0 thin it $oes to the
reasona+leness of the opinions she's asin$ the 1ury to adopt.
Mr. anish: 5irst of all& your honor& 'e don't no' any foundation for this document. 3here's nothin$
that says this is a la'. 3here's nothin$ that says 66 this is 1ust counsel testifyin$& thro's up the exhi+it
for the 1ury to see 'ith no foundation. Ho' can the court 1udicially notice 66 this isn't a statute& this is
nothin$ that 66 under the 1udicial notice statute of the evidence code that this applies to. Which section&
num+er 9. 7um+er ?& 'e don't no' that this is a la'& and 'hether it 'as a la' in ?AAH.
Judge: 0t loos lie a re$ulation.
Mr. anish: Where does it say that( 0t says 2J.*. employment opportunity commission.2 0t doesn't
$ive a statute num+er& it doesn't $ive a title of the united states code& it doesn't $ive any of that. *o for
them to 1ust +rin$ this in& thro' 66 that's totally improper. !nd then she starts testifyin$ a+out 'hat it is&
and then 'hat a+out it's standard in the industry and 66 all in front of 1ury. 3his is totally inappropriate&
your honor. 3here's no 1udicial notice& 'e don't 66 you 1ust don't thro' it up in front of the 1ury lie that.
3his is ridiculous. %ome on. What statute is this( What u.*.%. %ode is this(
Judge: 3hen you $o +ac and 66
Ms. Ste##ins: /our honor& 0 did as her if she 'as familiar 'ith EE.% Policies on credit checs. 3his
is an EE.% Policy on credit checs. 0 didn't represent that it 'as a la'& and 0 can lay more foundation
in the sense that it is a policy& it's on the EE.%'s list of prohi+ited practices.
Judge: 0 don't +elieve 0 can tae 1udicial notice of a policy.
Mr. anish: /ou can't.
Judge: 0 can tae 1udicial notice of a re$ulation or a statute.
Ms. Ste##ins: 0 thin you can.
Judge: *o if it's a re$ulation or a statute 66 0 'as under the impression& and may+e 0 'as mistaen as to
'hat you 'ere tellin$ me& that this 'as a re$ulation.
Mr. !"yle: 0n fact& your honor& 0'm on the EE.% We+site ri$ht no'. 0t's not even on their prohi+ited
employment policies or practices pa$es& it's on a third pa$e called 2in4uiries.2
Mr. anish: Evidence code section F@A states on 'hat you can tae 1udicial notice. !nd this is in no
'ay under any statute in %alifornia 'here the court can tae 1udicial notice. 0t is not a statute& it is not a
rule of the supreme court& it is not under F@?& decisional authority& it is not a re$ulation or F@?(+)& it is
not a criminal conviction record under F@?& it is not under F@E& and it is under no statute 'hich 1udicial
notice can +e taen. 3hat 'as complete error to put it up& that 'as inappropriate. 0t should +e stricen
and the 1ury should +e admonished for counsel doin$ that. 3hat 'as totally inappropriate& and it 'as
inappropriate for the court to try to tae 1udicial notice of somethin$ that is not allo'ed +y the court
'ithout notice& 'hich is re4uired to counsel& and puttin$ up in the middle of cross examination of a
'itness. !nd counsel has +een continually doin$ that& and they should +e admonished for doin$ that&
puttin$ it up in front of the 1ury& representin$ to the court that it 'as somethin$ you could tae 1udicial

notice of& +ecause it's not. !nd no' the 1ury has seen it& she's read it to the 1ury& and no' they thin this
is the la' of the united states $overnment. 3hat is not 'hat it is& and the court should not have allo'ed
that to occur. !nd the plaintiff is +ein$ pre1udiced +y that improper misconduct of counsel and
mistaen la'.
Ms. Ste##ins: /our honor& +riefly& first of all& 0'm not certain at the moment 'hether it's policy or
re$ulation. 0 'ill confirm that 66 +ut 0 don't thin it matters +ecause 0 thin this document can +e used
pursuant to evidence code section :?9(+)& 'hich allo's the use of a professional pu+lication of any
ind on cross examination if the pu+lication has +een esta+lished as a relia+le authority +y the 'itness.
-s. *ea'ri$ht testified that she relies on EE.% Policies& that she's familiar 'ith them& that she advises
her clients as to their effects. 0 thin it's fair cross examination of a 'itness 'ho clai-s to +e an expert
in employment practices& 'ho claims to +e familiar 'ith EE.% Policies. !. *o& your honor& it's
admissi+le as an impeachment exhi+it. 0 ased her& 2are you a'are that this is a prohi+ited practice
accordin$ to the EE.%(2 and this is& in fact& listed under their prohi+ited practices section& and 0 can
provide documentation tomorro' to sho' 66
Judge: 0 can't tae 1udicial notice of it. )ut 'hat you can 66
Mr. anish: 0t's not under :?9& either. :?9 needs to +e a relia+le authoritative treatise 'hich they relied
on or another expert testified 66
Judge: 0f she's $oin$ to rely on it 66
Mr. anish: *he didn't.
Judge: 66 then you have to esta+lish that. 0 thou$ht you started to $o there. 0'm not sure you can 66
Mr. anish: 3hat 'as never esta+lished.
Ms. Ste##ins: 0 thin it has +een esta+lished. *he said she 'as familiar 'ith the EE.% Policies8 that
they 'ere part of 'hat she relies on in her profession8 that she's a'are that EE.% Has instituted
la'suits for not follo'in$ their policies. 0 thin that it is 66 certainly a federal $overnment pu+lication
in the field that the 'itness relies on and advises their clients to meet the definition of a pu+lication 66
that is esta+lished as a relia+le authority +y the 'itness.
Mr. anish: !+solutely not.
Ms. Ste##ins: 0 don't thin this is hard. 3his is a federal a$ency's pu+lication.
Judge: 0 thin you need to first& +efore you sho' it to the 1ury& sho' it to her and as her if it's
somethin$ that she relies on in her field. )ut 0 can't tae 1udicial notice of it if it's not a re$ulation.
Ms. Ste##ins: /our honor& 'hy don't 0 move on for no'. "iven the time& 0'm pro+a+ly not $oin$ to
finish today. 0 'ill chec toni$ht 'hether it's a re$ulation or not& +ecause 0'm not certain. 0 'as looin$
to $et it in under :?9(+)8 and 0 apolo$i=e if& in any 'ay& 0 'as confused on that point.
Judge: 0 'as confused on that point.
Mr. anish: *he confused you and said it 'as a la' and you too 1udicial notice. 3hat 'as 'ron$&

num+er 9. 3he 1ury 66 that should +e corrected. 7um+er ?& under :?9& it is not the proper 66 0 +rou$ht
that up 'ith you in cham+ers. :?9 can +e used& a technical pu+lication& under t'o circumstances. .ne&
the expert relied on it in formulatin$ the opinions in this case8 num+er ?& it's +een esta+lished +y an
expert that it's a relia+le and authoritative treatise. 7either of those has +een done in this case. 0t doesn't
meet :?9(+) re4uirements. 0 +rou$ht that up in cham+ers and said they needed to lay the foundation
+efore they $ot into that. 0nstead& she $oes under 1udicial notice& $ets the court to mistaenly tae
1udicial notice 'hen you shouldn't have& put it up and read it t'ice to the 1ury. 3hat's totally
inappropriate. 0 'ant that testimony stricen for no'& and 0 'ant the 1ury instructed to 66 to disre$ard all
of that testimony.
Ms. Ste##ins: 7o. /our honor& this is fair cross examination. 3he 'itness says that she relied on the
EE.% 3his is the a$ency that is responsi+le for overseein$ her field.
Judge: #oo& an expert can't 66
Ms. Ste##ins: 0t's cross examination& your honor. *he testified on direct 66 even if it's not :?9& 'hich 0
thin it clearly is& she testified ten minutes a$o that the EE.% ,oes not include this as a prohi+ited
practice8 and she's familiar 'ith EE.% Policies& and they don't include this. *o& your honor& at a
minimum& it's impeachment on her credi+ility.
Mr. anish: 0t's hearsay. Ho' do you impeach someone 'ith hearsay out of court( Ho' do you do
that( 0t has to meet one of the re4uirements& and it doesn't.
Judge: Well& experts rely on hearsay.
Mr. anish: 7o& +ut you can't cross examine and introduce an expert on hearsay that they haven't
relied on in formulatin$ their opinions.
Judge: *upposedly there's a horn+oo text out there that an expert completely doesn't rely on 66
Mr. anish: 3hen you can't use it unless 66
Judge: 3hey can't +e cross examined on that(
Mr. anish: 7o. Read :?9. Have you read :?9( 0t says another expert must esta+lish that it's an
authoritative 66 relia+le in the field to +e used +efore you cross6examine the expert. 0t's completely
'ron$ to say& 2oay& this is the num+er 9 horn+oo on orthopedics& and you didn't use it&2 unless you
have that foundation esta+lished.
Judge: Well& that's 'hat you do 'hen you call your o'n 'itness.
Mr. anish: 7o& no. /ou have to read 'hat :?9 66 your honor& that's totally a mistae. 0f you loo at
:?9& 'hat it says& your honor 66 have you looed at the statute( 0t doesn't say that your expert can later
come on and say that. 0t specifically says the pu+lication has +een esta+lished as a relia+le authoritative
treatise. 2has.2 not 2'ill +e later.2 and if you loo at 'itin on evidence& it's very clear. 3his is totally
'ron$. /ou too first 1udicial notice 'hen you shouldn't have& no' you're $oin$ to let her cross6
examine on an alle$ed authoritative treatise 'ith no foundation under :?9. 3otally inappropriate. Just
+ecause you say it's cross examination& that doesn't mae it admissi+le in front of a 1ury.

Ms. Ste##ins: 3his is not a treatise& your honor& it's a federal $overnment policy. 3he 'itness
esta+lished that EE.% 0s the or$ani=ation that $overns her field& that they are responsi+le for enforcin$
discrimination& that they oversee credit HE?A checs in the sense of that they evaluate them for
discriminatory impact& they have policies limitin$ those. *he said that she 'as familiar 'ith those
policies. *he then said the policies did not say 'hat they actually say. 0 thin she has certainly
esta+lished the relia+ility of the EE.%& certainly esta+lished the relia+ility of the policies that they rely
on in her field.
Judge: )y the 'ay& the only thin$ that's ind of interestin$ a+out this policy is it doesn't exactly say
'hat you say it says.
Mr. anish: 7um+er 9 66
Judge: -r. Panish.
Mr. anish: 0 1ust can't +elieve this is occurrin$ in a court. 0f you loo at :?9(+) 66
Judge: -r. Panish& calm do'n. What it says is 2$enerally should +e avoided.2 0t doesn't say
2prohi+ited&2 it says 2$enerally should +e avoided.2
Ms. Ste##ins: /our honor& 0 can mae a lar$er 66
Judge: Hold on. !nd it also says 2exceptions exist if the employer can sho' that such information is
essential to the particular 1o+ in 4uestion.2
Mr. anish: Ri$ht.
Judge: *o it doesn't exactly say 'hat you said.
Ms. Ste##ins: 3hat's 'hy 0 'anted to sho' it to her.
Mr. anish: 0 o+1ected on those $rounds.
Ms. Ste##ins: 5irst of all& the prohi+ited practices& it actually is 66 this may +e my error in not layin$ a
sli$htly lar$er foundation. 3here is an EE.% Pa$e that lists prohi+ited practices. 0t includes certain
inds of +ac$round checs& and one of them listed is credit checs. 0f you clic on that lin& you $et
this. *o it is listed under prohi+ited practices. 7o'& a$ain& it does provide an exception8 and 0 'as $oin$
to as her a+out the exception and 'al her throu$h the policy and as her 'hether she +elieves in this
case it 'as an essential 4ualification under this definition. 3hat's 'hat 0 'as plannin$ on doin$& +ut
then 'e had this and 'ound up 66 0 'as not intendin$ to misrepresent. 3hat's 'hy 0 'anted to put it up
in front of 1ury& so 'e could 'al throu$h it.
Mr. anish: 0 'ant to read for the record :?9. .ay( )ecause& o+viously& 0 must have a
misunderstandin$.
(readin$)C :?9(+)& cross examination of expert 'itness. 0f a 'itness testifies as an expert in the form of
an opinion& he or she may not +e cross examined in re$ards to the content of any tenor or scientific&
technical or professional text& treatise& 1ournal or similar pu+lication unless any of the follo'in$ is
a$reedC .ne& they relied upon it8 t'o& the pu+lication has +een admitted into evidence8 or three& the

pu+lication has +een esta+lished as a relia+le authoritative treatise +y the testimony of a 'itness or +y
other expert in the trial.
Judge: Ri$ht.
Mr. anish: !nd none of those apply to this. *o ho' can you say 66
Judge: 3hat third one.
Mr. anish: 7o. 2has +een esta+lished.2 she did not esta+lish that. !nd she represented had 66 this
la'yer represented to you that it 'as a statute& and you fell for it& and you 66 you too 1udicial notice
and put it up in front of the 1ury. 0t's a+solute ran hearsay.
Judge: .ay. 0 did understand that it 66 or +elieved that it 'as a re$ulation. .+viously& 0 'as mistaen&
there 'as a miscommunication +et'een -s. *te++ins and me.
Mr. anish: 0t's a critical part of the case& as they say.
Judge: 0 understand.
Mr. anish: !nd no' the court has allo'ed somethin$ to +e sho'n to the 1ury& and her 4uestion 66
under a misinformation& 'hatever 'e 'ant to call it& 'hich 'as inappropriate and improper on a
critical issue in this case. 3hat's totally inappropriate. 0t shouldn't have +een done +y +oth the court and
counsel& and they 1ust thre' it up. 0 mean& 0 had lie 9@ seconds to loo at it& it 'ent ri$ht up on the
+oard& then she reads it& has the 'ron$ one& another one up& and this $oes +ac up a$ain for the record.
,espite my o+1ections& extensive o+1ections 0 'as main$& the court still allo'ed it.
Ms. Ste##ins: Just for the record& your honor& -r. Panish misread :?9(+)(E)& and he added a couple of
'ords. 0'm $oin$ to read it one more time so the record is clear.
(readin$)C 3he pu+lication has +een esta+lished as a relia+le authority +y the testimony or admission of
the 'itness or +y other expert testimony or +y 1udicial notice.
Mr. anish: Ri$ht.
Ms. Ste##ins: 3hat's the entirety of that provision. 0'm not certain ri$ht no' 'hether it's a re$ulation
or policy. 0 +elieve 0 only said policy& +ut 0 'as under the impression that policies 'ere 1udicially
noticea+le. *o if 0 made a mistae& 0 apolo$i=e. 0 thin either 'ay the foundation 'as laid +y the
'itness that this 'as relia+le and admissi+le.
Judge: .r an expert that you 'ould later call at the trial.
Mr. anish: )ut that's not 'hat :?9 says. 0t says 2has +een.2
Judge: 0 $uess 'e're $oin$ to disa$ree on that.
Mr. anish: /ou told the 1ury 66
Judge: 0 $uess 'e're $oin$ to disa$ree.

Mr. anish: 3he 1ury has +een told this is a la' of the federal $overnment you 1udicially noticed. !nd
as lon$ as 0've +een practicin$ la' and 'hen 0 'ent to la' schools& policies are not 1udicially
noticea+le.
Ms. Ste##ins: /our honor& 0 'ill confirm toni$ht 'hether it's 1udicially noticea+le or not and you can
instruct the 1ury tomorro' as to 'hether it is a 1udicially noticea+le or 1ust somethin$ that the 'itness
relies upon in her field.
Mr. anish: *he didn't rely upon this specific 66 she hasn't even seen that.
Judge: Why don't 'e do that. #et's tae our +rea.
Mr. anish: *o you're refusin$ to $ive my admonition(
Judge: 0'm $oin$ to 'ait for the +riefin$& and 'e're 1ust $oin$ to drop it for no'.
'!rea,)
Judge: Jacson versus !E" #ive. /es(
Mr. anish: /es& your honor.
Ms. Ste##ins: /our honor& if this is $oin$ to +e discussin$ -s. *ea'ri$ht's testimony& 0 as that she
leave the room.
Mr. anish: 0t doesn't have anythin$ to do 'ith her testimony. 0 'ould lie& for the record& to identify
this document that 'as thro'n up in front of the 1ury& 9EF@H& 'hich the court too 1udicial notice. 0
'ould lie the record to reflect it's not a la'& it's not a statute& it's not a re$ulation& it's not even a policy.
!nd 0 'ould as at this time& since they put this up& that the 1ury +e instructed to disre$ard this exhi+it
and disre$ard any testimony a+out it. 0f later they can someho' do it& 'hich 0 don't +elieve they can&
then 'e can deal 'ith it. )ut ri$ht no'& it's fresh in everyone's mind& this is +rou$ht up& and it's not
inconsistent 'ith 'hat the 'itness said. !nd as 0 o+1ected +efore& it doesn't even say 'hich -s.
*te++ins says it does& not to mention that the la'suit that the EE.% )rou$ht& they lost& the 1ud$e thre'
it out. *o all this hearsay and stuff that's +een su$$ested that this is discriminatory and this la' sho's it
is for !E" to conduct a credit +ac$round chec is totally misleadin$& inappropriate& should not have
+een in front of the 1ury& it's unduly pre1udicial& a ey issue in the case. !nd the 1ury should +e
admonished no' to disre$ard it& and that should +e stricen at this point in time 'hen it's in the 1ury's
mind.
Ms. Ste##ins: /our honor& 'e discussed all this at len$th moments a$o. 0 +elieve this is clearly
admissi+le under :?9(+). 3he 'itness testified she relies on EE.% Policies and a$rees 'ith them. 0
thou$ht 'e a$reed at the +rea to leave this for no'& come +ac in the mornin$ 'ith any ne' material.
0 don't thin it's appropriate to instruct the 1ury no' 'ithout $ivin$ an opportunity to loo further into
the issue re$ardless of 'hether it is 1udicially noticea+le. 0 didn't +rin$ up the idea of 1udicial notice. 0
thou$ht it 'as 1udicial notice. 0t's fair cross examination under :?9(+)& it's clearly the ind of thin$ that
an expert in her field relies upon. 3here's no pre1udice +ecause all this 'ill come in later 'ith our

expert& -s. /oun$. 0 thin that it's very premature to $ive the 1ury any ind of instruction. 0 thin it
'ould +e utterly inappropriate at this point& particularly since -s. *ea'ri$ht says she's familiar 'ith
the policies and relies on them in her profession. 0 thin 'e should move on for no'& leave 4uestions
a+out the EE.% Jntil tomorro' and address any issues that 'e need to address then. We've $ot ?@
minutes left today8 and 0'd lie to try to move on 'ith this cross& your honor. 0 do not +elieve there is
any error in sho'in$ this document to the 1ury. 0 +elieve it's clearly admissi+le under the rules of the
%alifornia code& and 0'm happy to provide the authorities in the mornin$.
Mr. anish: 0t's not a policy and their expert can't $et in hearsay. 0t's not $oin$ to come in and ri$ht
no' is 'hen the 1ury no's it. 3he court is supposed to $ive the limitin$ instruction at the time. /ou
improperly too 1udicial notice of this over my o+1ection& and 0'm asin$ that it +e cured no' rather
than 'ait overni$ht. 3he case la' says 'hen counsel maes an o+1ection that 'as improperly
overruled& and somethin$ 'as improperly in front of the 1ury& then counsel immediately +rin$s it to the
court's attention and re4uests a curative instruction& that it should +e $iven& not 'ait until the next day
or the day after or 'hatever. !nd that's 'hat 0'm re4uestin$ at this time.
3he courtC 0 thin the pro+lem is 0 don't 'ant to mae more of a morass than this already is8 so if it
turns out that 1udicial notice 'as improper& +ut it's admissi+le on some other $round& if 0 66 it's $oin$ to
+e difficult to explain to the 1ury.
Mr. anish: 0t's not admissi+le.
Judge: *o 0'd rather 'ait until 0 have some +riefin$ on it. )ut the pro+lem is you're $oin$ to +rief it&
they may 'ant an opportunity to respond to 'hatever you put in 'ritin$& so 66
Ms. Ste##ins: /our honor& that's fine& and 0 66 a$ain& 1ust for the record& 0 don't thin this is remotely
controversial. 3he 4uestion is only 'hether it's 1udicially noticea+le or not. 0'd lie to do some research
on that issue. )ut re$ardless of 'hether it's 1udicially noticea+le or not& -s. *ea'ri$ht testified that she
relies on EE.% Policies and is familiar 'ith them and taled a+out their contents. 0 thin this is plainly
'ithin a relia+le authority under :?9(+) that an expert 'ould reasona+ly rely upon and fair $round for
cross examination.
Judge: 0 thin you should mae that part of 'hat you +rief. 3hat 'ay& if 0 do $ive the instruction to the
1ury& and 0 say& 2Well& 1udicial notice 'asn't appropriate 662 that 'ay it's clear and 'e don't have to
revisit it if for some reason that's a pro+lem.
Mr. anish: 0t's not a policy. *he eeps tellin$ you it's a policy. *he's laid no foundation& and you've
allo'ed it to come in. 0t should +e out. !nd if they $et it in later& 'hich 0 don't see ho'& +ecause it's not
a policy& it's not a reasona+ly relia+le authoritative treatise& she hasn't relied upon it 66 it 'as improper
for them to 1ust thro' a copy on us& put it ri$ht in front of the 1ury and read it t'ice& and the court
overrulin$ my o+1ections improperly and let the 1ury see it and main$ a +i$ deal a+out it. Ri$ht no' it
should +e cured. /ou have the opportunity to cure it ri$ht no'. /ou have to tell them to disre$ard 'hat
they put up and the testimony re$ardin$ that. 0f later for some reason it is admitted& then there's no
issue.
Judge: 3hen 0 have to further confuse them and say& 23hat rulin$ 0 made +efore& 0 chan$ed my mind.2
no' it's $oin$ to +e 66 let's 1ust mae sure that 'hatever 0 tell them is accurate. 0f it's a pro+lem& 0'll cure
it. )ut let's mae sure that 'hatever 0 tell them& that it's accurate. Ri$ht no' it's a little +it in dispute8
and if it 'as improper 1udicial notice& it mi$ht +e proper on some other $rounds& so 0 'ill tae care of

that. )ut 0 thin 'e continue to 66

Mr. anish: 0 'ant to clarify.
Judge: 0 don't 'ant to 66
Mr utna$: Exacer+ate(
Judge: 7o. 3here's another phrase for it.
Mr. anish: 0've made my record& you're refusin$ my re4uest.
Judge: 5or no'.
Mr. anish: )ut 0 'ant to no' no' is this an exhi+it they're tryin$ to $et into evidence or a
demonstrative(
Ms. Ste##ins: 0 'as usin$ it under :?9(+)& 'hich they read into the record& +ut not used as an exhi+it.
7o' -r. Panish ased for an exhi+it num+er& so 'e have no' $iven it num+er 9EF@H.
Judge: 0t's identified +ut not received. (mared for identification& exhi+it 9EF@H& EE.% ,ocument)
Mr. anish: 0 'ant it identified for the record for the revie' of the court to see 'hat they put up in
front of the 1ury& 'hat they represented
it 'as so there's a clear record. 0've re4uested my curative instruction& the court refused it.
Ms. Ste##ins: 5or the record& your honor& 0 +elieve 0 only ever represented this is a policy& it's my
+elief it is. 0 'ill do the research necessary to +rief this for your honor in the mornin$. Re$ardless& 0
thin it's plainly admissi+le for :?9(+) for those purposes& and 0 thin 'e should move on for no'. 0
'ill leave off 4uestions a+out the EE.% 5or the moment& and 0 thin it is extremely premature to $ive
the ind of instruction that -r. Panish is su$$estin$.
Judge: 0t's premature +ecause 0'm not sure ho' it's $oes to shae out after the +riefin$.
Ms. Ste##ins: 0 'ould su$$est in the interest of tryin$ to $et thin$s done 66 -r. Panish has a clear idea
of 'hat's 'ron$ 'ith this exhi+it 66 that 'e +oth +rief tomorro' mornin$& and if you 'ant 66
Mr utna$: since she's on the stand& your honor.
Mr. anish: Policy is never admissi+le even under :?9.
Judge: -r. Panish& you're repeatin$ yourself.
Mr. anish: /our honor& 0 didn't do this.
Judge: -r. Panish& 0 understand. /ou've made your record over and over. 0've heard it. 0 hear you. /ou
have a very loud voice. 0 heard you. 0 heard all your ar$uments& +elieve me.
Mr. anish: /ou too 1udicial notice of somethin$ that's not even proper.

Judge: 0 understand that. 0 understand your ar$ument. )ut 'hat 0'm sayin$ is 0 can't do anythin$ ri$ht
no'& 0 can't correct it. !nd if 0 correct it the 'ay you 'ant me to correct it& that may +e 'ron$& too.
Mr. anish: 0 don't thin so& +ut 0 understand your rulin$.
Judge: 0've $ot to mae sure that 0 do it properly.
Mr. anish: Well& 0 understand 'hat you're sayin$. )ut +efore 'e start thro'in$ thin$s up& can 'e $et
a chance( 0 mean& that 'as totally inappropriate& the 'ay they did it. 0 understand& than you.
Ms. Ste##ins: 0 $ave them a copy.
Mr. anish: 5or ten seconds and thre' it up on the +oard.
Ms. Ste##ins: 0'm not puttin$ anythin$ up from the EE.% today.
Mr. anish: !ny exhi+its& until 'e $et the oay. 3hat's all.
Ms. Ste##ins: !$ain& your honor& 0 provided the exhi+it8 and your honor had overruled the o+1ection.
*o at the time& 0 thou$ht it 'as appropriate to put it up8 +ut that 'as +ased on you and 0
miscommunicatin$. 0 thin it 'as done in $ood faith8 and 'e can fix 'hatever needs fixin$& if anythin$&
tomorro'.
Mr. anish: 3here's no innocence here. *he said it's somethin$ you can 1udicially notice. /ou can
never 1udicially notice an alle$ed policy.
Ms. Ste##ins: %an 'e +rin$ the 1ury +ac in(
'the 0"ll"wing 2r"&eedings were held in "2en &"urt- in the 2resen&e "0 the (ur"rs):
Judge: Katherine Ja&,s"n 1ersus AEG Li1e. 4"u $ay &"ntinue.
Ms. Ste##ins: Ms. Seawright- I (ust th"ught "0 s"$ething I wanted t" as, y"u a#"ut.
;. 3his mornin$ you had taled a+out a company called liveops(
!. /es.
;. !s one 'ho credit checs are run on(
!. /es.
;. !nd 'as it my understandin$ that 'hat the liveops people do is they tae orders from companies
for 66 from persons for products(
!. 3hat's some of 'hat they do. 3hey do all different types of customer service 'or& from 'hat 0 read
on the 'e+site.

;. *o you're not familiar 'ith them& you haven't 'ored 'ith them personally(
!. 0 have not.
;. 0s it your understandin$ that they tae do'n customers' credit info(
!. 0f they're dealin$ 'ith somethin$ related to that& they may& yes.
;. )ecause it 'ould +e hard to order a product via phone if you didn't provide information to pay for
that(
!. 3hat's ri$ht.
;. *o at least in some instances they may +e handlin$ consumer finances& ri$ht(
!. 3hey may +e.
;. )y the 'ay& 0 no' 'e're tryin$ to +oth $o in a hurry here& +ut 0 thin 'e ind of taled at the same
time there. We've $ot to +e ind of careful& for the reporter& for me to finish my sentences and you to
finish yours. .ay(
!. 0'm sorry. 3han you.
;. 7o'& you taled a little +it this mornin$ a+out the idea of a truc driver& ri$ht(
!. /es.
;. !nd ho' you mi$ht do a license chec and a ,-> chec to +e sure that the truc driver 'as
licensed(
!. /es.
;. !nd you mi$ht chec his drivin$ record to mae sure he had no history of accidents(
!. 3hat's 66 that's the reason for the 66 0 call it an -.>.R.& motor vehicle records chec.
;. 7o'& ,r. -urray had a medical license& correct(
!. -y understandin$ is that he did have a medical license.
;. 0n fact& he 'as licensed in four states(
!. 0 did not verify that& or loo into that to +e a+le to confirm that 'ith you.
;. *o ,r. -urray 66 the status of ,r. -urray's licenses 'eren't important to your opinion(
!. Well& 'hen 0 approached 66 the approach 0 too to this 'as to first address the credit chec issue8
and once 0 sa' the results from that& then 0 reali=ed that he 'as ineli$i+le for hire& and so the rest of it

really 'as immaterial to me.

;. *o you didn't chec to see& for instance& 'hether ,r. -urray had a criminal record(
!. 0 did not.
;. /ou no' that he didn't& correct(
!. 0 don't no' a+out that 'ith certainty.
;. *o you 1ust don't no' one 'ay or another(
!. 0 don't recall& no.
;. ,id you chec to see 'hether ,r. -urray had ever +een sued for malpractice(
!. 0 did not.
;. ,idn't thin that 'as important to evaluatin$ 'hether he 'as fit and competent for this position(
!. Well& that 'ould normally +e part of the process& certainly8 +ut& once a$ain& 'hen 0 found 'hat 0
discovered on the credit& there 'as no need for me to $o any further.
;. /ou didn't actually run a credit chec on ,r. -urray& did you(
!. 7o& 0 did not.
;. /ou 'ere provided his credit history and the 1ud$ments a$ainst him +y Plaintiffs' counsel& ri$ht(
!. 0 am relyin$ on ,etective -artine='s testimony from the trial and the exhi+it 'ith the credit report.
;. )ut you had this opinion lon$ +efore ,etective -artine= testified& correct(
!. 0 did.
;. !nd that 'as +ased on a stac of 1ud$ments that Plaintiffs' counsel $ave you(
!. /es.
;. !nd they didn't $ive you ,r. -urray's medical history(
!. -edical history in 66
;. History treatin$ patients.
!. 7o.
;. !nd they didn't $ive you the fact that he had no criminal record(

!. 7o.
;. !nd they didn't $ive you 66 'ell& let me as it differently. ,id they $ive you anythin$ other than ,r.
-urray's credit history(
!. With re$ard to 'hat( "ive me anythin$ 66
;. With re$ard to ,r. -urray's +ac$round.
!. 0f they did& once a$ain& in the material that 0 revie'ed& 'hat 0 relied upon for my opinion 'as his
credit history& 'hich 0 did $o out and verify 'ith those 1ud$ments. *o 0 did do that& and then sa'
,etective -artine='s testimony and credit report.
;. !nd 0 understand& -s. *ea'ri$ht& you $ot the credit history. 0'm tryin$ to esta+lish 'hether you $ot
anythin$ else.
!. Well& 0 don't recall precisely 'hat 0 $ot as 0 sit here. 0 have a 'hole list of documents that 0 had
su+mitted at the deposition& so there may have +een more information& +ut 'hat 0 relied upon 'as the
credit history.
;. *o for a driver& 'hat matters is that the driver has a driver's license and a clean drivin$ history&
ri$ht(
!. 3here may +e much more than that.
;. 3hat's all you said this mornin$& ri$ht(
!. 0 used an example 'here 0 said that the drivin$ history happened to +e the salient issue in that
example.
;. )ut for a doctor& it doesn't matter that he has a clean medical history and that he had medical license
in $ood standin$(
!. 0'm not sayin$ that at all. .f course that matters.
;. )ut it 'asn't somethin$ you considered in determinin$ your opinions in this case(
!. 0t 'asn't necessary.
Mr. anish: E+&use $e. I/$ g"ing t" "#(e&t- #ey"nd what she/s testi0ied. She/s n"t gi1ing
"2ini"ns a#"ut whether he/s 0it "r &"$2etent. %hat/s n"t what he/s testi0ying a#"ut- s" *r.
Murray/s $edi&al hist"ry is n"t rele1ant 0"r the "2ini"ns she/s gi1ing in this &ase.
Ms. Ste##ins: 4"ur h"n"r- she ga1e testi$"ny "n what a #a&,gr"und &he&, "0 *r. Murray w"uld
ha1e 0"und and "2ined that it w"uld #e dis3uali0ying 0"r the 2"siti"n "0 Mi&hael Ja&,s"n/s t"ur
d"&t"r. I thin, what "ther 0a&t"rs she did "r did n"t &"nsider in $a,ing that assess$ent is
rele1ant.
Judge: !ut when y"u re0er t" $edi&al hist"ry- are y"u re0erring t" C"nrad Murray/s 2ers"nal

$edi&al hist"ry.
Ms. Ste##ins: I/$ re0erring t" his hist"ry "0 treating 2atients and the 0a&t that he had n"t #een
sued 0"r $al2ra&ti&e- and I a2"l"giCe i0 there was any &"n0usi"n "n that.
Mr. anish: <"w w"uld we ha1e $edi&al re&"rds "0 the 2atients "0 *r. Murray.
Judge: O1erruled. 4"u $ay 88
;. /ou didn't do any investi$ation to find out 'hether ,r. -urray had ever +een sued for malpractice(
!. 0t 'asn't necessary to my opinion.
;. !nd you revie'ed ,etective -artine='s testimony. ,id you do anythin$ to fi$ure out 'hat the
financial condition of ,r. -urray's medical practices 'as in ?AAH +efore he moved to %alifornia(
!. 0 did not& and it 'asn't relevant to my opinion.
;. *o you don't no' 'hether they 'ere thrivin$ practices and he 'as 1ust +ad 'ith his +ills or terri+le
practices one 'ay or the other(
!. %ould you repeat that(
;. *ure. /ou don't no' 'hether ,r. -urray's practices 'ere thrivin$ or runnin$ poorly in ?AAH(
!. His medical practices(
;. /es& +efore he closed them.
!. 7o& 0 did not evaluate that.
;. 0t didn't mae any difference to your opinion if he $ave up a $ood practice versus a poor practice(
!. 0t did not.
;. 3he only thin$ that made a difference to your opinion is these 1ud$ments that Plaintiffs' counsel
$ave you(
!. 3hat 'as& yes& important to my opinion& indeed.
;. 7o'& you haven't seen any evidence that ,r. -urray 'as $oin$ to +e in char$e of -ichael Jacson's
finances& correct(
!. 7o& 0 have not seen any evidence
lie that.
;. 7othin$ that 'ould su$$est he'd have access to -r. Jacson's +an accounts(
!. 7o evidence lie that 66

;. 0n fact 66
!. 66 that 0 recall.
;. 66 have you seen evidence that ,r. -urray 'as $oin$ to do anythin$ other than provide medical
care to -r. Jacson(
!. Well& a$ain& 'hat 'as in the independent contractor a$reement is 'hat ,r. -urray 'as expected to
do8 and there 'as a clause in there that he 'ould +e performin$ other services at the re4uest of the
producer& so that may have included other thin$s +eyond 1ust the medical care.
Ms. Ste##ins: Let/s l"", at that 0"r a $"$ent- then. Let $e get the inde2endent &"ntra&t"r
agree$ent. I thin, it/s in $y "ther #"+- "0 &"urse. 1E6. :ell- we/1e all seen it Cilli"ns "0 ti$es. Oh-
g"t it. S"rry. 4"ur h"n"r- $ay I a22r"a&h.
Judge: 4"u $ay.
Ms. Ste##ins: 4"ur h"n"r- w"uld y"u li,e an"ther &"2y "0 this "ne.
Judge: I0 y"u ha1e an e+tra &"2y- I/ll ta,e it.
Ms. Ste##ins: <ere y"u are- y"ur h"n"r. a$- &an y"u 2ut this u2.
;. 3his is the draft independent contractor a$reement you 'ere referrin$ to& -s. *ea'ri$ht(
!. /es& it is.
;. !nd 0'm $uessin$ you're referrin$ to para$raph F.9(
!. /es& 0 am.
;. ,o you see 2services2 is a capital 2*2(
!. 0 do.
;. !nd 'hen there's a capital in a contract& it usually means a defined term& ri$ht(
Mr. anish: I "#(e&t- &alls 0"r a legal &"n&lusi"n.
Judge: Sustained.
Ms. Ste##ins: Can we g" #a&, t" 2aragra2h 1- see i0 we &an 0ind a de0initi"n 0"r ;ser1i&es;.
;. !nd did you revie' and rely on this para$raph& -s. *ea'ri$ht(
!. ,id 0 revie' and rely upon this para$raph. 5or 'hat(
;. 5orm any of your opinions in this case.

!. 0 revie'ed and relied on the document in $eneral.

;. !nd do you see here the first sentence says 2producer here+y en$a$es "%! to provide the services
of ,r. -urray and "%! and ,r. -urray here+y a$ree that ,r. -urray 'ill provide $eneral medical care
to the artist throu$hout the duration of the term&2 and then there's a parentheses& and there's a capital 2s2
in 2services2(
!. /es.
;. ,o you have any reason to +elieve that the services in F.9 refer to anythin$ other than providin$
$eneral medical care to the artist(
!. ,o 0 have any reason to +elieve 'hat( 0'm sorry.
;. 3he services that you identified in F.9 refer to anythin$ other than providin$ $eneral medical care
for the artist(
!. Well& it says providin$ the services reasona+ly re4uested +y the producer& and the services in
para$raph 9 are services that are related to care of the artist& and re4uested +y the artist& so 66
;. !nd you'll a$ree there's a capital 2s2 in +oth places(
!. 0 see that& yes.
;. !nd you've revie'ed the testimony of athy 1orrie& or have you not(
!. /es& 0 have.
;. *o you're a'are that she testified 2producer2 in F.9 'as supposed to +e chan$ed to artist 1ust lie it
'as in para$raph 9(
!. 0 did read that.
;. ,o you have any reason to dou+t that testimony(
!. Well& 'hat 0 determined from that 'as that there 'ere three drafts of this document that had +een
revie'ed& and 0 sa' some testimony that -s. Jorrie 'as a very competent attorney& and others 'ho had
also revie'ed it 'ere 66 'ere competent employees& and so it 66 it struc me that it 'as revie'ed three
times and it 'as not chan$ed& and so that 'as somethin$ that 0 too into consideration.
;. *o is that a yes or a no( /es& you have reason to dou+t8 or no& you don't have reason to dou+t the
s'orn testimony of the attorney 'ho 'as deposed in this case(
!. 0'm not dou+tin$ the s'orn testimony& +ut 0'm seein$ other testimony that seems to contradict it.
;. What other testimony(
!. 3he fact that there 'ere mistaes made in the contract& several mistaes made in the contract& and

the fact that there 'ere three drafts that 'ere revie'ed +y several people& and that passed muster& so to
spea& 'hen they 'ere revie'ed& and it 'as a final draft& it 'as a final version& referred to as a final
version.
;. ,o you have any idea at 'hat point this draft 'as chan$ed& the provision in para$raph 9(
!. 0n one of the three drafts. 0 don't recall 'hich one& thou$h.
;. !nd you're not an expert in contract draftin$(
Mr. anish: O#(e&ti"n. She/s (ust #een as,ing all these 3uesti"ns a#"ut it. :hat is it.
Judge: Sti2ulate she/s n"t an e+2ert in &"ntra&t dra0ting.
Mr. anish: ?ight. !ut i0 she wants t" as, her a#"ut it- g" ahead.
Ms. Ste##ins: I/$ (ust as,ing.
%he witness: I/$ n"t a &"ntra&t e+2ert- n".
;. !nd 'ould you a$ree that the 1ury is in the +est place to evaluate -s. Jorrie's credi+ility(
Mr. anish: O#(e&ti"n= i$2r"2er 3uesti"n.
Ms. Ste##ins: Sustained.
Judge: Sustained.
Ms. Ste##ins: 4"u &an ta,e that d"wn. Let/s lea1e it u2 0"r a $"$ent. %here was s"$ething else
y"u tal,ed a#"ut this $"rning- and that was the idea "0 li&enses. I0 y"u &"uld 2ull u2 2aragra2hs
88 these. I &an/t re$e$#er what nu$#er they are- and they/re t"" s$all 0"r $e t" see 0r"$ here.
;. -s. *ea'ri$ht& you testified this mornin$ that this a$reement re4uired ,r. -urray to represent that
he 'as licensed& correct(
!. 0 don't no' that 0 used that lan$ua$e& +ut 0 thin 0 may have referred to the fact that there 'as a
licensin$ clause in here. 0 don't remem+er ho' 0 66 0 1ust don't remem+er ho' 0 said that.
;. ,o you recall talin$ a+out ho' 66 at some len$th 66 representin$ that you're licensed isn't the same
as sho'in$& havin$ someone do a license chec and mae sure you're really licensed(
!. 0 recall on the !E" ho' to chec out people process that 0 discussed that re4uirin$ the license 'as
different from verifyin$ the license.
;. !nd 0 thin you specifically stated that 1ust representin$ that you have a license isn't the same thin$
as havin$ someone loo 66 as havin$ someone actually chec and see if your license is in $ood
standin$(
!. >erify& yes& that it's in $ood standin$.

;. )ut& in fact& this draft a$reement re4uires

!. #ittle +it more than 1ust representin$ that ,r. -urray is licensed& correct( #ooin$ specifically at
para$raph F.F and F.@ here(
Mr. anish: :e/re #a&, n"w that she &an inter2ret this. I $ean- they 88 g" ahead.
%he witness: %his is an <? "2ini"n- n"t a legal &"ntra&t "2ini"n.
Ms. Ste##ins: Anderst""d.
%he witness: And s" what I read here is that *r. Murray was t" "#tain- $aintain and &"$2ly
with li&enses- 2er$its- 0ran&hises- "ther a22r"1als. It/s n"t saying anything in there in 2arti&ular
a#"ut AEG 1eri0ying that- (ust si$2ly 2utting the #urden "n *r. Murray t" d" that.
;. )ut then in para$raph F.F& 'asn't he re4uired to produce documented proof of any and all of his
licenses(
!. )ut documented proof& a$ain& is 66 you no'& documented proof of any and all licenses re4uired.
0'm not sure 'hat 2documented proof2 means& if it's lie sho'in$ a license& 2here's my license& here it
is&2 'hich may +e different from runnin$ a chec on a license. *o 0'm not certain ho' that is
interpreted.
;. !nd so you actually don't no' 'hat proof 'as re4uired under this contract(
!. 7o& 0 don't understand in F.F 'hat that means.
;. ,o you understand it any +etter in F.@(
!. 0 thin it's the same lan$ua$e there& documented proof of any and all licenses. *o 0'm not positive
ho' that's interpreted. 0 don't no'.
;. Would it mae any difference if it 'as $reater proof of a license( 5or instance& a certified letter
from the state +oard& or somethin$ lie that(
!. Well& it 'ould 66 'hat matters is that it's verified in 'hatever form or fashion you can verify that in.
;. !nd 'ould you a$ree that there is a provision here that if the producer is not satisfied 'ith the
proof& they can re4uire $reater proof& in para$raph F.@(
!. 0 don't no' 'here you're $ettin$ $reater 2proof&2 0'm not sure ho' to interpret that.
;. .ay.
!. *orry.
;. 7o pro+lem. 3ae that do'n. -s. *ea'ri$ht& are you a'are of any studies that sho' that havin$ a
$ood credit history maes someone +etter or 'orse at +ein$ a physician(

!. 7o& 0'm not a'are of any studies lie that.

;. !nd you're not a'are of any studies sho'in$ that a +ad credit report means someone is a +ad
physician& ri$ht(
!. 7o& 0'm not.
;. .r that it maes them more or less liely to commit a crime(
!. 0'm not a'are of any studies lie that.
;. Have you ever $iven an opinion in any other case that someone's credit history made them liely to
commit manslau$hter(
Mr. anish: O#(e&ti"n= she/s n"t gi1ing that "2ini"n in this &ase.
Judge: I/$ s"rry. :hat 88
Mr. anish: Misstates her "2ini"n. %hat wasn/t her "2ini"n in this &ase.
Judge: Sustained.
;. Have you ever $iven an opinion in any other case that someone's credit history standin$ alone made
them incompetent to perform services as a licensed physician(
Mr. anish: O#(e&ti"n again. %hat/s n"t what she said here. %hat/s n"t her "2ini"n.
Ms. Ste##ins: %hat is what she said. She said it a $ade hi$ un0it and in&"$2etent- and (ust
1iewing the &redit hist"ry $ade her realiCe *r. Murray &"uldn/t #e hired 0"r this 2"siti"n.
Mr. anish: %hat/s n"t what she said.
Judge: O1erruled. 4"u $ay answer.
%he witness: I/1e n"t rendered an "2ini"n "n his status as a 2hysi&ian in general. I rendered an
"2ini"n related t" his 2"siti"n 0"r the d"&t"r 0"r the ;this is it; t"ur- and that was $y s&"2e.
;. *o you're not $ivin$ any opinion today that ,r. -urray 'as unfit or incompetent for any position in
the 'orld other than -ichael Jacson's doctor in connection 'ith the 2this is it2 tour(
!. 3hat is correct& that 'as the issue at hand& that 'as the 4uestion that 0 'as ased to render an
opinion on& yes.
;. *o not that he 'as not fit to +e a physician& +ut 1ust in your vie'& he 'as not fit to +e -ichael
Jacson's physician(
!. 7o& it 'asn't a 4uestion of +ein$ -ichael Jacson's 66 a 4uestion
of 'hether or not he 'as fit to +e -ichael Jacson's physician& it 'as a 4uestion of 'hether or not he

'as fit to +e a physician on the 2this is it2 tour.

;. #et me as you& if everythin$ a+out ,r. -urray 'as exactly the same except that he did not have
1ud$ments a$ainst him& 'ould he have +een oay to 1oin the tour(
!. 0t 'ould have depended on the rest of the information that 'ould +e +een o+tained durin$ the hire
process& had they follo'ed an ade4uate process.
;. !nd you didn't o+tain any of that information(
!. 0t 'asn't necessary once 0 had the information on the credit& there 'as no need for me to loo any
further.
Ms. Ste##ins: I thin, that/s g""d 0"r t"day- y"ur h"n"r- i0 y"u wanted t" st"2 at B:>>.
Judge: O,ay. 1>:>> "/&l"&, t"$"rr"w. G""dnight.
'the 0"ll"wing 2r"&eedings were held in "2en &"urt- "utside the 2resen&e "0 the (ur"rs):
Judge: .ay. -s. *ea'ri$ht& you need to +e +ac tomorro' at 9ACAA. 3han you. !nd 0'm assumin$
'e'll +e done 'ith *ea'ri$ht tomorro'& ri$ht(
Ms. Ste##ins: 0 +elieve so& your honor. 0 thin 0've $ot another hour or so& may+e a little more.
Judge: *o 'ho else do 'e have tomorro'(
Mr. !"yle: ,r. *chnoll& s6c6h6n6o6l6l.
Judge: .ay. !nd 'hat a+out desi$nations& counter desi$nations(
Mr. anish: 0 don't no' that there's any outstandin$ at the moment. 3aylor& 'e need to discuss that at
some point.
Judge: 0 1ust 'ant to mae sure you don't 66 you've +een really $ood a+out it& +ut 0 don't 'ant to +e
+om+arded 'ith five of them at once. )ut you've +een very $ood a+out them so far.
Ms. Cahan: !nd& your honor& 'e'll have a num+er in our case8 +ut Plaintiffs' counsel has indicated
that they don't 'ant to revie' any of those until they rest.
Mr. anish: 7o. We're oay to start revie'in$ those.
Ms. Cahan: .ay. We've sent you several.
Judge: 0 1ust don't 'ant all five at once.
Ms. Cahan: We'll handle ours on a rollin$ +asis for& your honor.
Mr. anish: Just so 'e don't $et to that situation& it's oay to start 'orin$ on those ho'ever you 'ant

to do it.
Mr. !"yle: 3he 'ay 'e did it is 'e $ave you a head's up.
Ms. Cahan: /eah. We have 4uite a num+er +ecause of all the physicians.
Judge: .ay. *ee you tomorro'.
'C"urt ad("urned t" %uesday- July @- @>17- at 1>:>> a$)