Chapter 44 – Stored Procedures

I thought we would get back to discussing and exploring where our data failures happened after Mr. M left. My general impression is that most IT people believe the programming code they generate is owned by them and not the company paying them. That of course is not true. Programmers get paid just like most of the rest of us for services and get paid a fee. That fee could be compensation and that fee could be something else.

The damage we suffered was because we could not find the programming code and for our purposes we are going to call that code “Stored Procedures.” As you can imagine Stored Procedures is a body of programming code designed to be used repeatedly. In our case we talked to about 20,000 people a day on behalf of 6 different clients. Each of those client needed reports sent daily and each client’s reports were a bit unique. On average we would gather at least 10 bits of information a day per person talked to and 5 bits of information a day on 100,000 records of people we did not talk to. All told lets call that 700,000 bits of information that needed to be pulled from our database, arranged by client, reported by client, in some cases data files created, and all of that needed to be done in about 4 hours after we closed.

All of the data was in a central location on a server or two and a database or two that we maintained. I think you can agree there is no copying and pasting 700,000 pieces of information nightly. So you write a program to go get the information and post it into a report. That programming includes code that is very very specific and tells the software program to go get the customer’s name, address, phone, number, time called, detail of the conversation (script) and resolution…as an example. So you write that code, you test and makes sure it goes and gets that information and then saves it. And we do that for each of or clients because each one needs something different. The programming code that does that is called a stored procedure. You store for use every day. It works and you will use it frequently.

Then you do the same thing for each report you need. Each report is a bit different so you have a procedure for each one and you store those. Then of course you need to pull data out and put the data in a file that you send to clients and that’s a separate group of stored procedures. It’s a lot of work to do the programming. More than you could do in a night typically. But we aren’t done. You also need a stored procedure to go execute on all of this, choosing the date and client you want, etc. You could write the code for that daily but what if you goof up. The best advice is to write the code, test it and make sure it works and then use it daily. You only change it if you need to change the data that gets pulled, the reporting or something else changes.

Now all of that is a simple description of stored procedures, but it makes senses doesn’t it. You don’t recreate the wheel everyday. At least not as an IT person. That’s not your job.

So what happened to the stored procedures. Where did Mr. M put them? Why didn’t our other IT folks have them? Why didn’t they know how to use them to create reports, to import & export data, etc. We found what appeared to be such files on the 120 gig hard drive and our forensic reports bear that out. But that hard drive had been reformatted and when that happens programs get jumbled…and can’t be counted on.

When Mr. M returned the computer he was working on with the 60 gig hard drive, all the programs needed to process all of our daily data should have been on there, but they weren’t. Now Mr. M had been doing this for years and doing it pretty darn well. Our other two guys had college degrees and one had been with us almost two years as I recall. But the programs were not there. The stored procedures were not there. And our IT staff could not find them. In fact the consultant we hired could not find them. He re-wrote them in a few days. Not in a few hours, but a few days. Had it been just a few hours that may have barely supported the notion that stored procedures were not necessary, but when it takes a few days of course stored procedures are necessary. He also wrote a manual for our use in a just about 3 hours.

We were shut down for a week. The shut down cost us $100,000 in lost revenue. In spite of 5 people testifying to the fact that we were down and it was as a result of the absence of the stored procedures, the arbitrator awarded us nothing. Mr. M claimed there were no stored procedures. Mr. Crow believed that. Do you?

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Chapter 43 – The New Lawsuit Part II

As I indicated before the new lawsuit attempts to do a few things, but the design of it is to shut the blog down. The theory behind the damages is that Mr. M has suffered emotional distress and has the potential challenge of a future employer finding this blog and more specifically the less than complimentary history that I allege I have outlined. I would remind the readers that Mr. M did prevail in the arbitration and the blog takes arbitration and emphasizes evidence the arbitrator intentionally ignored. Mr. M can write his own blog if he wishes.

The more interesting point I think is that the new attorney Joel is attempting to cast this lawsuit as not being defamation but rather retaliation to a former employee, one that has not worked for us in more than 12 years. The nature of the retaliation pleading is designed to provide some recovery of legal fees should they prevail.

In keeping with their current theory, they have sued every one of the corporate companies as well as my holding company and of course they have sued me. I think this is just one more example of the attorneys running the lawsuit game and perhaps using Mr. M for their own benefit.

I note that because we reached out to Mr. M’s attorney and asked how we could accommodate Mr. M on this identification question, but they have not responded. In fact I have requested a meeting now 4 times with no response. We did get this today. It was filed to make sure I was not representing the corporations. Why is that important? Because it is just designed to cost me money and lieu of that they want me to pay the unsecured debt of one of my corporations. R – [5] Objection

Naturally I welcome a defamation claim if they want to make it. The truth is a powerful thing. But as I have written many times the blog is not about Mr. M. It’s about the dishonest attorneys and judicial players around litigation that escalate the costs and engage in whatever is necessary to win.

This may well be a tactic to remove the references and challenges to the attorneys and other involved in this case historically. It certainly is not about the facts. The facts are frightening to them and I understand that. In so far as the complaint is public and easily find able via search, our efforts to bring some degree of anonymity for Mr. M pursuant to is conveyed interests appear to go away when he can try to garner some additional money at our…my expense. Here’s the complaint. 1-main

They must feel the US District Court is ready and willing to help. I need to write a Portlandia script about this.

Much of the consternation appears to be around the forensic reports. During the discovery stage of the arbitration one of my former attorneys entered into an agreement typical to these matters. I believe I have already addressed some of this but in essence if we were designate documents we provide and stamp it confidential the information may not be disclosed at any time by the other side. Never. The same is true if Mr. M’s team provided us confidential information and stamped in confidential, then we can not disclose it at any time. The point of this is that when we turn over my computer, for example, their forensic expert cannot generate a report that can be published by them at any time in the future. The key point is that it is our information, not theirs. But it does not mean that we are precluded from publishing our own confidential information. Linda Marshal provided a copy of the protective order which I have provided here.R – asp protective order So information like Mr. M Tax Returns were provided under that confidential seal and we did not retain those documents nor would we disclose that info even if we had.

But information we owned, even if we designate it as confidential, may be released at our discretion. So for example, our forensic reports even if designated confidential are on property we own and we can release it any time we want. Had Mr. M provided his personal computers and we did forensic evaluations on that computer we could not and would not disclose. But based on advice of counsel, we are in the right here.

And as far as we can tell our forensic reports were not designated as confidential. The reason for that is confidential information was not produced in the reports. Any information that could have been confidential, like the content of client files, was not the subject and not included in the report. Just that simple.

Attached is the letter Linda Marshall sent demanding I take the blog down. R – 15-10-3 letter (hasson) re sittingduck Now the agreement she referred to specifically provides for injunctive relief, which they have not chosen to do as yet. I presume that if they though they were in the right they would have done so months ago. Here’s the email from Joel on this. Joel’s Email

I have chosen to represent myself on this litigation. Worried that I may ask to do the same for the now inactive corporations, Joel filed the following today. R – [5] Objection The goal of this is simply to cost us money. It is an obvious ploy. Crazy.

Until next time.

Chapter 42 – I reached out to The Honorable Robert E. Jones

Actually I sent an email to his clerk, the contact for his Chambers. The content of the email was simple. I wanted to know who suggested to them that the blog post I wrote the day of his Life Time Achievement Award dinner was somehow a veiled threat to him. And by threat I mean a physical threat.

The folks that benefit from that obvious lie are M and Marshall. Joel seemed rather upset by it and was concerned we were writing about it. That does not mean he did it or had knowledge of it being done. He may have. The secrecy of their ongoing contact is what I am trying to shine a light on.

In response to the email, I received another call from the U.S. Marshals service. Again the Marshal I talked to was exceedingly polite and professional but the message was clear and that was do not reach out to Judge Jones’ Chamber. That just means we will have to send a subpoena after the Defamation claim is filed.

This entire childish behavior by the other team reminds me of the little red riding hood story, where little Red would cry wolf when there was no wolf just to get attention. And in this case, whoever did it attempted to use it as a method to overcome some of what we have been writing about. I have been surprised by the lengths an attorney will go to just to collect a pretty small amount of money. The fact that I wrote about their contact with Judge Jones Chamber is what stimulated the latest lawsuit. No doubt in my mind.

The email I sent I was an attempt to give Judge Jones an opportunity to set the record straight on who contacted him and who would even care to do so. Again I’m fairly sure Judge Jones is not reading my blog. I am however pretty sure he will read the book. The book weaves in a lot of this backroom contact, as well as the personal motivations of a league or network of Judges using their authority to engage in all kinds of activity, legal and illegal. Often they benefit financially from the behavior. And it is a Novel…fiction. But I do draw on these real life experiences like I’ve experienced with what I’ll call this Judge Jones affair. And, frankly, it provides me more material. What I find interesting and maybe even alarming is the activity the accuser has engaged in. It seems so middle-schoolish.

Nonetheless we have here actions that are real, backroom contact that was intended to influence our current litigation, and new litigation with a message that if I don’t back off, one or more Federal Judges in Portland will try to shut me up by imposing significant monetary damages. I got the message, but I can not shut up.

I wonder when Federal Judges decided it was within their sphere of influence, their right, to shut down free speech through intimidation. I have already talked to a few publishers about that fact that a critique of the court is consider taboo, that they fear they will be punished when forced to defend themselves in court. When some of our news agencies don’t feel safe to critique a Judge on a ruling or any observed behavior, it it fair to say that we have found where free speech can be snuffed out? And would it not also be fair to say that we have found the place where bribes and influence can be effectively deployed without the public really knowing anything about it. Looks like it to me.

And so I will continue to write about it.

On a separate note let me say that I have visited the Clackamas County Courthouse a few times to see just how busy our Judges are there and aside from a few of them, they don’t seem to be very busy at all. They aren’t in the courtroom anyway. Except for a few. One of the few Judge who is busy all the time is Jeffrey Jones, Robert Jones’ son. He is a hard working Judge and I want to take this opportunity to acknowledge that.

Our state court Judges don’t make a great deal of money. They have a very good retirement program which balances out the lower current income. I don’t know if they would prefer to increase their current comp by 50% and reduce their retirement by 50%, but that seems to me to be a more viable approach.

Until next time.

Chapter 41 – Our Time In New Jersey with Judge Kugler

M did not want to arbitrate the issues between the parties and petitioned the State Court in New Jersey and he filed a lawsuit there to set the arbitration aside and to access the moral liberal law of the State of New Jersey as opposed the law in the State of Oregon. The contract required that Oregon law be applied in this case.

We moved to have the case decided in Federal Court, as opposed to State court and had decided to just go ahead and litigate the case in its entirety in Federal Court in NJ. But something happened. My attorneys did not file a single page memo as required by Federal Court and the Judge on the case dismissed the case with prejudice, meaning he was not going to give us an opportunity to refile the case. Typically a dismissal like this would simple meaning a defaulted filing which would allow the lawsuit to be refiled properly, but this Judge took the step necessary to make sure that we could not on this matter ever access the U.S. District Court of New Jersey.

I received a call from an investigator that told me Sandra Ware, Max’s girlfriend, went to law school with one of The Federal Judge’s law clerk and he suspected they had met and discussed this matter. He further concluded that the law clerk was assigned to this case specifically, would likely have written the order and may have even slipped this by the Judge. Some time later Madmitted to me that they had met this Judge many times at Rutgers Law School events. I rather doubted that. But it is what he said.

In any event I was livid. At the time I did not conceive, could not imagine, that Robert E. Jones would have contacted Robert Kugler, the then Federal Magistrate responsible for this case. In retrospect I should have thought of that.

But in my somewhat emotional way, I fired off a letter challenging the “why” of dismissing our case with prejudice and brought to his attention the conclusions reached by our investigator. Judge Kugler was not very happy with me and what was to follow became one of the most entertaining period of my life…in the courtroom anyway. Judge Kugler ordered me to New Jersey to stand trial for contempt and interference of the court. He demanded that I be there in person some 30 days after his notice. So I hired yet another attorney, paid him $10,000, and he went about the business of what he claimed was trying to keep me out of jail.

By this time I wondered if Mwas setting up private websites for these Judges to watch their porn. How that would have worked is that a private website would be set up, for the exclusive use only, content provided by the hosting person, and the only thing the Judge would need to do is access the site with his login Id and password. But I digress.

Anyway, I went to the hearing Judge Kugler ordered me to attend. Sandra and Mwere there. The law clerk friend was there. The US Attorneys office representative was there. And during the opening commentary the US Attorney said they were confused as to why they were summoned by the Judge. The Judge told them of the letter. And further told them that they may be called upon to prosecute me. To the US Attorneys credit, he said the their office would not in any way be interested in prosecuting me nor anyone else exercising their right to free speech. By then the U.S. Attorney was also aware I had filed a complaint against Judge Kugler. In any event there would be no prosecution.

For the next 20 minutes or so Judge Kugler yelled and carried on, dressing me down on every third paragraph. He brought his clerks in to the witness the carnage. I recognized the clerk in question almost immediately from the photographs provided to my attorney by the aforementioned investigator. I said little. My attorney of course asked that he recuse himself from this matter, but he did not. He explained the inherent conflict and the inappropriateness of the hearing itself. And then it was over. The Judge asked my attorney to join him in back in Chambers. I was asked to join my attorney for lunch down the block a bite.

And a half an hour or so later my attorney did in fact join me and we had an early lunch. I was told that my attorney K did a lot of defense work for many of the most notable crime families in the Camden New Jersey and Philadelphia area. I knew this before going to the hearing. Anyway, during the lunch K told me the Judge had asked that I withdraw the complaint. “Is the Judge willing to reimburse my cost and fees?”, I asked.”You’ve read the letter and it was written assuming the Judge knew nothing of the friendship between Sandra and his clerk and that he should know.” Yes that’s true K said…and you aren’t getting your money back.

Are you going to withdraw the complaint?. No, I said. Apparently the cost of free speech is $10,000 plus expenses, per event. “Well then” K said, “I suggest you go the airport and get the hell out of the state as soon as you can before the Judge sends for you again. I’ll tell him this afternoon.” Very well then. Check Please.

Judge Kugler is not without his detractors.Read On.

Eventually we went to state court in New Jersey. M argued that he should not have to submit to arbitration or be subject to Oregon law or the non-compete. We prevailed and the case was now out of New Jersey heading back to Oregon.

By the way our contract did not have a non-compete. It really is just a non-contact clause. You can’t solicit our clients. if you take one, you have to pay a portion of the revenue you generate. Simple.

For a short time thereafter, we offered a walk away. M’s attorney demanded $20,000 or else they were not going to settle out the claim. We stuck firm on the walk away, where neither party paid the other. M was out very little. We on the other hand were out close to $150,000. All for a false claim. All because M retaliated against us for firing him. Max’s attorneys always worked on contingency. Mine were paid by the hour. That’s just the way it works and that’s why lawsuits can be settlement tools. I’ve never been a fan of paying something when we did nothing wrong. It may be the cheapest way. But it is not the right way. Looking back though I wish I had just paid the $20,000. The future cost me a lot more than that. It is still costing me.

Chapter 40 – Owners & Executives & Managers are just normal people too

In spite of the finger pointing and the cache assertions of wrong doing, as owners and CEO’s we are not able to control the actions of everyone who works for us. We set policy, do our best to make sure everything is done to code, that quality is good, that the product is good and safe and the moral and ethical mandates of our companies are maintained. This is not an admission of anything Linda.

But we are just normal people, with spouses and children and chores and duties and responsibilities and fatigue. When you own a business and have started it from scratch, people like M & Sandra, like Linda Marshall and so many others who do not invest their time and savings to build a business but instead dedicate their efforts to trying to destroy yours, to these people who believe that our assets are simply there for the plucking, I can assure you that any attack on your business is personal.

To those of us who have held executive positions most of our lives, and who are or have been responsible for the day to day safety of hundreds of people, we ask of our judicial system for equitable treatment, an unbiased assessment and approach. Judges, we respect your position and your role, but if you ask us to fear you we will ask why?

When it is clear that there is an agenda to a judicial proceeding and that the facts of a case are simply incidental inconveniences, then our fundamental needs of equitable treatment are not being met, And when they are no longer being met, businesses shut down and move away. Business and Commerce does not just happen. Operating capital has to be deployed wisely and consistently. Litigation robs business of working capital.

I’m sure there are business owners that expect to be treated preferentially. I do not. And those business owners I know do not either. But treating us unfairly and conspiring with others in the legal community to redistribute our assets out of judicial activism is socialism. I would remind everyone that government retirement pensions is more than twice that of private sector colleagues. And further that it is the tax on the successful that fills the government coffers.

For contingent fee litigation to continue in an age when we have twice as many lawyers as our society needs, when 50% of a law school graduating class can’t even find jobs, there must be a profitable target. And that is a business. And more often than not an attorney attacks the shareholder as well as the business, as leverage.

Being an attorney is a privilege few share. But there’s not enough work to go around and now there has evolved a “lawyer tax” and attorneys are looking to judges to help them collect it. And some Judges do, out of friendship to counsel, out of empathy for the attorney, out of concern for their profession. Few Judges have actually been in business. Few practiced law very long before putting on a robe.

I recall reading an email Sandra Ware, M’s friend from New Jersey, wrote to Judge Egan in Albany, focusing on M’s case. Her points were not about the case but a personal attack on me, assessing me as the target. It was revealing.

So when I see that same immoral tactic used by opposing counsel during an arbitration and trial, I see how putrid litigation has become. But more than that, when there is no case its mostly about personal attacks and innuendo, all irrelevant. And I ask is this really going on right before me. We can easily prove we did nothing wrong or illegal. Every claim made by M and Sandra we proved to be wrong and dripping with fraudulent intent. The process affirmed that we did not engage in fraudulent activity but it failed from the start when Bill Crow did not step down as arbitrator. But it does not matter to us anymore. The damage is done. And repeated. Rinse and repeat. I am committed to revealing the threat to businesses involved in arbitration. Stay in court.

A former friend of mine, an attorney, told me recently you will lose in this U.S. District Court because you have more than most and you don’t act like a victim. Soon I realized that was his mantra. Then I realized it was more. No one resents the success of a business owner more than an attorney, in a town where there are too many attorneys. That fundamental disdain for business and business owners is misplaced.

Owners refuse to be victims. It does not mean we aren’t victims of crime and false statements. We are. We just don’t show up to court in pretending to be unsuccessful. That’s a game. It is not a game we play.

Si vis pacem, para bellum.

Chapter 39 – Statute of Limitations

M brought claims in Oregon well beyond the Statute of Limitations. After seeing this and other abuses by those in the judicial seat, I am taken aback that such a hard and fast rule is set aside, but it has been time and time again in this arbitration. The abuse of arbitrator discretion has continued. Let me take you through some of these events. R – summarydispositionMEMO

Mr. Z’s claim under ORS 659A.230 is brought pursuant to ORS 659A.885.
Actions under ORS 659A.885 are subject to the general one-year period of limitation set forth in
ORS 659A.875(1). Consequently, to be timely under the statute, Mr. Z should have
brought this claim no later than November 15, 2004. He did not do so. Not by a long stretch.

Mr. Z’s Wrongful Discharge claim was first asserted in his June 29, 2006
Statement of Claims, more that 28 months after his discharge. The tort of wrongful discharge is
subject to the two-year limitation for filing of tort claims, ORS 12.110. Consequently, this
claim was also untimely.

On June 30, 2006, Mr. Z filed with ASP a Statement of Claims in a case initiated
by him on that date, along with an Answering Statement With Counterclaims in the case initiated a year earlier by NDT. It was in those two pleadings, more than two and one-half years after his discharge, that Mr. Z first asserted any claims under Oregon law–though he still did not allege any violation of ORS 659A.230.

Not until August 17, 2006–nearly three years from the date he was first notified of his
discharge–did Mr. Z first allege a violation of ORS 659A.230, the claim his first lawyer
apparently intended to reference in the October 28, 2003 letter giving notice of the DOJ
complaint. Having shopped for both a forum and law unsuccessfully and in contradiction of his
Employment Agreement, Mr. Z thus belatedly filed with ASP new claims well outside the
statutory time limits for doing so.

And yet Mr. Crow allowed them to survive. And while I have evidence as to why Crow made that decision, I am not quite ready to release it. The decision on the Statute of Limitation issues should have been in our Motion to Vacate the award, but were overlooked by our legal counsel.

We are experiencing the same thing now. The efforts by Z to pierce the veil and other related actions were not timely filed and our motion on that issue is still pending.

Chapter 38 – Our History with Mxx

I forget precisely how we met M but I do recall he was working for a competitor. We hired a senior account manager from MBNA by the name of Paul Bower and set up a satellite office in Delaware for him. Paul was hired to act as President of one of my companies so I could step back and pursue other channels. I recall Paul recommended M and knew him as a member of the IT department of a competitor of ours and a vendor of MBNA. Paul met him through that relationship.

M rose from a call center agent at a New Jersey center to an assistant manager of the IT department. I was told that he was a great programmer, had created his own digital recording platform, which if true could save us quite a bit of money. So I met with M. He was happy with his current position but ultimately our offer resulted in a substantial raise and he became a manager with us, a step up. We made an offer. He accepted.

M is not well educated. He graduated from High School certainly. He did not have much of any college education, but seemed to have enough database, dialer and specific industry experience to meet our needs. He does not look like a person you can bring to a sales meeting. He ascribes to a different time and identifies with the long hair rock star persona. I really did not care, but recognized he would one day need to be replaced with someone of greater skill and presence.

But within a short time Paul Bower had something else in mind. He and M set up a competing company. Instead of focusing on the task they had been hired for, Paul and M were out looking for call center space. The company they set up was called Superior Results Marketing. I became aware of this when Paul and M approached two of our senior staff members to join them. One of them let me know.

So I went out to see them in Delaware and confronted them at our offices. To M’s credit he seemed torn on the activity going on behind the scenes there in Delaware. But he nonetheless did it. I took over Superior Results and Paul Bower was moved to another position and was allowed to work on a commission basis only. He quit in short order.

But M survived that. Now it goes without saying that at that point our relationship with M was numbered. We of course were not going to have a long term relationship with M any more, but provided that he did his job it would take us a little while to find and hire someone more capable and loyal.

Overtime we became somewhat complacent about M. We should not have. The relationship deteriorated into his designed approach to control the quality and quantity of the work his department would produce. Our goals to have each member of the department well trained were thwarted by him. He was not able to script and the other members apparently were not able to use the programs we had to generate reports or process leads. I had been told otherwise, but eventually when one member was out sick or otherwise unavailable our IT department did not function.

And that’s essentially what happened when M was terminated. Six months before his termination I went to see him, to evaluate his programming and to see if I could modify his behavior. It was during that IT session that the hard drive he used crashed. It looked fake but he claimed he could not bring it back up. Long trip to New Jersey for nothing. I knew I could not talk any sense into him after that.

Shortly thereafter we required M to come out to Portland to work with our team and he refused to do so. Several times after that he held up processing leads wanting a raise, claiming of course that he was working a lot of hours. Training staff would have lightened that work schedule if it was truely onerous. And so once we felt that our current staff could process and generate reports we fired M. I don’t know how anyone thinks you can reject your employer’s demand to come to headquarters and keep your job. Ultimately M believed he could control his future by controlling our data.

So we fired M and I flew out to get the equipment. Since the latest files we needed for processing had not been sent to us as requested, I wanted to secure the equipment and grab the files. We hired and outside database programmer to evaluate the program files and to set up a processing procedure with the appropriate program files. As expected our IT staff members were not able to process data and we were forced to shutdown for a week.

After M breached his contract with us and after he was terminated, M filed a complaint with the Oregon DOJ (through an attorney in Albany), claiming we were over-billing clients and violating the Do Not Call list (not the jurisdiction of the ODJ). We were not calling anyone on our own behalf. Our clients gave us weekly DNC lists to use to remove current numbers being called and to make sure they were not called in the future. It was M’s job to process those DNC files so if there was a failure, and I doubt there was, it was because he failed or refused to process the DNC files.

By the way, M did not talk to the Albany attorney who filed the complaint on his behalf. That attorney ultimately testified that he talked only to Sandra Ware and she represented herself as his attorney in New Jersey. In any event, as we have discussed before the ODJ requested documentation that supported his allegations and none were provided. The complaint file was open only for a day or so. M then sought whistle blower type protection to save his job. But he had already been fired well before the complaint. None of his allegations were true. But let me address the over-billing.

Eventually M provided an excel spreadsheet he claimed was received via email. There was no proof of that. What the spreadsheet did however showed time being written off and in a few cases recovered, but still overall being written off. I am a proponent of writing off time when our equipment works poorly, there is a telecom issue, agents are inadequately trained, and other issues. I’m not going to permit writing up time. On occasion we would find one of our manager writing time off and they would be written up for doing so. I would be open to recovering time if clients were aware and endorsed it. Writing time off was not knew.

Suggesting that writing time off is criminal or inappropriate is beyond unreasonable. In the beginning the representation to the ODJ was that we were engaged in criminal activity. During the trial M downgraded that to inappropriate because it gave us a market advantage. A different company, presumably like the one he and Paul Bower set up, could not as easily compete. Hard to imagine that an arbitrator would not find this wholly ridiculous. Crow did leave the arbitration shaking his head.
Now the one thing we have not discussed is that M felt our agreement with him precluded him seeking other employment in the industry. Not the case. What it does is preclude him from soliciting our clients or aiding in that process with a new employer or partner. We even wrote him and told him he certainly could work in the industry.

M made a claim for more than $1 million in damage. And he hired an attorney in New Jersey to set the contract we had with M aside or at the very least set aside the arbitration provision in Oregon. We probably would have been better off doing that, but the agreement provided for arbitration in Portland Oregon and we wanted that contract requirement section respected.

The conclusion you could reach about M is that he did not want to be bound by any contract. He certainly did not want to be bound by the confidentiality section of our contract with him & that may have applied to how he protected confidential data.

Back when M filed the DNC & over-billing complaint we processed about 1 million records a month. His complaint was that once we failed to process approximately 300 records timely & he was the one responsible for processing the dnc records. Our average monthly per client billing was $50,000. The spreadsheet he provided showed a write-off of a few hundred dollars. And he did all of this to try to preserve a job with a company that he disliked and was trying to hurt.

Is common sense just not an element in an arbitration. You can imagine that we, that I, have been stunned by even having to defend claims this stupid. Quite frankly I don’t know why something this stupid survives and when it does it points a finger to the litigation process failing or other unavoidable conclusions. And those conclusions lead to cronyism, or corruption, or bias or something else. At the end of the day, you measure stupidity against a more plausible answer.

Were M’s allegations and damage claims ludicrous? They were.

Should even a mediocre arbitrator have seen this? No doubt.

Is Bill Crow better than mediocre? Most certainly.

And therefore there were separate motivations and goals for this arbitration, things that M could not influence. He did not make as much from the arbitration as his last attorney Linda Marshall did. She gets most of the reward, more than 50%. Lets go through M’s testimony next.

Chapter 37 – Our Damages

The essence of our major claims were for profit losses that arose when we could no longer produce reports after M’s last day. We dealt with such tremendous volumes of data that in order to process the data and generate reports we had what is called stored procedures.

A stored or saved procedure is nothing more than code that is written and saved and executed when you want to do so. The stored procedure could be anything, but for us it was basically instructions to go to a specified data base, to pull specific data in that database and then to present in a format that is also predefined. A predefined format would for example include rows and column names, dates and times, quantities and descriptions of events. Any we would typically do for the day and for the month. All in all lets say we had 100,000 events each day that needed be categorized, calculated, summarized and presented, each and everyday and sent at say 1 am. You can imagine that without stored procedures you could not generate the reports on command.

So, leading up to M’s departure we requested that this body of stored procedures and the written explanation on how to do process the data be provided to us, that our other employees in the IT department be trained on the use of the stored procedures and that they be able to competently deal with the data once M was no longer with us. But that did not happen.

Immediately before M’s final day, Chris C, our newly appointed Manager and long time member of the IT department came to me and said he would not be able to do the processing. He did not know how. A month before he had told me no sweat and I took him at his word. But now he claims he cannot do it. I asked to see the stored procedures but he could not identify the file. We did have written processing procedures but they were not working. This programming was in Foxpro, the programming language M knew. But it seems Chris never learned how to program nor did the other member of our IT staff. That was contrary to their resume’s. We had no interest in wanting to have an IT department that was a 3-legged chair with two-legs missing. But that is what we had.

As a result, we had to shut down for a week. Our clients demanded that. We hired an IT Foxpro expert out of Chicago and he first attempted to help us remotely, but was unable to find stored procedures programming on our servers…not any where. Chris C was unable to identify where they should be or were and it was not successful. So the IT expert named Jaime got on a plain and spent 3 days with us. He wrote the programs, the stored procedures, generated a working procedures manual and we were able to come back up. Our loss of revenue and direct costs were in excess of $100,000. Jaime testimony is here R – Gedye. His testimony confirmed that of three other employees that no Foxpro files were found and as a result we lost a lot of money.

And so we asserted those claims. M took a position that there were no stored procedures. He just did it every night. Chris C took a position that our stored procedures were there but that the processing had changed and he did not know how to fix it and even tried to deny that we went down for a week. Jaime testified and said it would have been impossible to process this amount of data nightly without stored procedures…impossible. And he further confirmed that he searched all servers and computers for the Foxpro programming code and found no such programs. There were Foxpro files, but they were product and report files or incomplete program files, but nothing that was identified as an executable file. We even searched the computer M returned to us, but no active files. There were hundreds of files that had been deleted but again nothing that represented stored procedures. This was infuriating. So many people were hurt.

But Bill Crow says in spite of the testimony and the fact that we were down for a week, that there was no compelling evidence that M withheld program files from us. I remain speechless over this conclusion. Every program written for us by M during his employment was owned by us. And yet Crow concluded that nothing was written. We had 4 witnesses on this issue. They had one…maybe two if you count Chris. By the way Chris quit 30 days after this.

Our other Damage claim was the cost of litigation in New Jersey. Our employment agreement with M made it clear that both the location and jurisdiction of law was in Oregon. He was advised by his counsel on this at the time of signing. Moreover the agreement required he participate in Mediation in Oregon which they refused to do. And so we had costs to defend in New Jersey. Another $100,000. Even though the arbitrator did not have a right to set aside this agreement, he did so. We were denied the recovery of our costs to defend the claim in New Jersey and send it back to Oregon for arbitration, even though we were successful in that pursuit. On the one had I understand this in part because our agreement specifically precluded and denied legal fees.

The one claim we were awarded was the cost we incurred for the transcripts. M was suppose to pay half. He did not. We were billed the whole thing and it appeared we were obligated to pay for it by our former attorney. We were granted a judgement of $4,300 or so. Thank you Mr. Crow.

So in the end we suffer well over $200,000 in damages. Our reputation was tarnished with the shutdown, a problem we would experience again. And from the time M left to the time we completed the arbitration it was seven years, a long time in the life of a small business.

 

Chapter 36 – Redacted Files

Although Joel Christensen has not called me back nor responded to my email request for a meeting on the latest lawsuit, I have modified the site to minimize the inadvertent references to M’s last name. From a search perspective, this will mean the only M’s lawsuits and his claims against me personally and my company will remain in the search results…at least over time.

M has to be responsible for his own filings. And there are many. No doubt the latest lawsuit has to do with the fact that his claim is against a company that will be filing bankruptcy shortly.

As I have pointed out many times, this blog is not about an employee claim. It could be any claim. It is about the litigation process and in particular taking issue with arbitration.

We are about to file our RICO and Defamation claim.

Arbitrators Opinion and Award R – CANON4F5259_LDAPMAIL_04052011-144457

Examination of the 120 gig hard drive R – examination_of_120_gb_hard_drive_old

Examination of the 60 gig hard drive R – Examination of 60 GB Hard Drive Email

Examination of the Termination Email R – williams_exit_time_final_report001036

Motion to Vacate R – MotiontoVacate

Memorandum in Support of Motion R – memorandum-supporting-motion-to-vacate-award

Video Analysis R – Video Files Analysis

Arbitration Taken 5-24-10 R – ARBITRATION TAKEN ON 05-24-2010

M Forensic expert report Exhibit on my termination email R – Exhibit 3

M Forensic expert report Exhibit on my termination letter R – Exhibit 1

Our Summary Judgement Motion filed in 2006. R – summarydispositionMEMO

 

Chapter 35 – Evidence of Overzealous Activism…if not more.

The arbitration award had to at some point focus on the tipping point on whether or not the email terminating M was sent Oct 2, 2003, as I alleged. It is a tipping point because M’s claims go away in total if this one fact is found to be an October 2, 2003 email terminating M.

Arbitrator C wrote:

23 “The parties are in disagreement about when the October 2, 2003, email was prepared and
24 sent. The testimony of the experts leaves questions open about that controversy, but to the
25 arbitrator it is difficult to harmonize this email with the one written by Mr. Rote just 80-90 hours
26 earlier.”

Unfortunately this is where the Judicial discretion comes in to compromise a very important factual point. And so lets do more than just say this is an error. Lets call it for what it is, an abuse of discretion. Why is it an abuse? Because our evidence was so overwhelmingly favorable to us.

First, there was no disagreement by my two forensic experts. Both agreed that the email was sent October 2, 2003. My computer was untouched and the email was retained. It was not deleted. It did not need to be recovered.

Second, M’s forensic expert testified that the email terminating M was sent October 2, 2003, but noted there were items he found suspicious, suggested it could have been created to look like that, but ultimately testified that the evidence shows the email was created and sent October 2, 2003. M’s forensic report is here R – Exhibit 3

Third, three people from the company testified that they were aware of M’s termination on October 2, 2003 and two testified as to the fact that a letter was also sent via regular post. All forensic experts concluded that the initial draft of the letter was created in October 1, 2003. I testified that the letter was modified slightly and sent via email on October 2nd. The letter is here.R – Exhibit 1

Fourth, the business computer M used did not have his outlook email account on it. That is the 60 gig hard drive he returned with computer did not have email on it and we could not verify that he received it. Now its not necessary to verify that he received but it would point out that he lied about it. He claimed he did not get it. And we needed to verify the spreadsheet evidence as well and did not have an opportunity to do that.

Fifth, M destroyed the personal computer that had his email account at that time. So in spite of the fact that we did not destroy our computers, he did destroy his. This is considered spoiliation and we should have been entitled to an inference that he destroyed those computers so that we could not perform a forensics report on them. That inference also means that he received the email and sought to hide it from us.

But there is more. Arbitrator C sought also noted that:

7 For example, Claimant relies in several instances in his briefing on Exhibit 1, page 64.
8 and his testimony on May 24, 2010, pages 168-170. (The actual quote comes from page 160 of
9 the transcript.)
10 “Rote explained his response to Z’s ’So I take it I’m fired” email:
11 “And I said, ’Yes, so you seem to want that. You seem to kind want to exit on an
exclamation point, in spite of the fact you’ve asked for this additional time, in
12 spite of the fact we’re working together, you seem to want to exit with some kind
of drama. And so here it is, some kind of drama.” Post-Hearing Memorandum
13 of Northwest Direct Teleservices, p. 67.

And this is the Sixth point. Only a few days before M had withheld processing client reports, for now several days and wanted a raise and guaranteed contract period. He was attempting to hold us hostage. I told him now. Now all of this extortion attempt by M was in the record with the piece that Arbitrator Cused. But he filtered. He removed that damaging part of M’s testimony to make this rather weak point that a few days earlier I had not fired him when he was holding us hostage. That is true.

Once M got the reports done and once I was able to confirm through Chris Cox that he could process the reports I did fire M.

You see Arbitrator C really had to bend over backwards to assist Linda Marshall with this point. I am so mortified by this disgusting behavior, this favoritism shown Marshall, his ex-partner…well it is still hard for me to believe.

It is true that once M was fired, I spent most of my time with the remaining IT staff to try to make sure we could not have a catastrophic event. That did not work out too well. They did take us down anyway. But C’s interpretation of that was that it was an indication that M had not been fired. Once someone tries to hold your clients hostage, to hurt your company, you just don’t chat much.