Great Moments In Legal Questioning: IT Boss In Cuyahoga County Cannot Identify A Photocopier

from the say-that-again-now? dept

A few of you have passed along this rather epic moment in legal questioning in which lawyer David Marburger (who we’ve discussed in totally different contexts before) tries to get a Cuyahoga County IT boss to answer a simple question about whether or not the recorder’s office has a photocopying machine during a case being heard before the Ohio Supreme Court. The entire transcript, which we repeat below, takes up 10 pages. If you’re reading this on the front page or via the RSS, the transcript is so long that we’re moving some of it to the article page, so click on through if you want to read the whole thing (which is worth it). Marburger is the lawyer asking questions (representing some title companies in the lawsuit). Patterson is Lawrence Patterson, acting head of IT for the recorder’s division at the county fiscal office, and the guy being questioned. Cavanagh is Matthew Cavanagh, the lawyer for the county who seems quite upset that anyone might pry into the nature of the machinery at work in the county offices:

Marburger: During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?

Cavanagh: Objection.

Marburger: Any photocopying machine?

Patterson: When you say “photocopying machine,” what do you mean?

Marburger: Let me be — let me make sure I understand your question. You don’t have an understanding of what a photocopying machine is?

Patterson: No. I want to make sure that I answer your question correctly.

Cavanagh: Dave, I’ll object to the tone of the question. You make it sound like it’s unbelievable to you that he wouldn’t know what the definition of a photocopy machine is.

Marburger: I didn’t ask him to define it. I asked him if he had any.

Patterson: When you say “photocopying machine,” what do you mean?

Marburger: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?

Patterson: I just want to make sure I answer your question correctly.

Marburger: Well, we’ll find out. If you can say yes or no, I can do follow-ups, but it seems — if you really don’t know in an office setting what a photocopying machine is, I’d like the Ohio Supreme Court to hear you say so.

Patterson: I just want to make sure I answer your question correctly.

Cavanagh: There’s different types of photocopiers, Dave.

Marburger: You’re speaking instead of — you’re not under oath. This guy is.

Cavanagh: I understand that, but I understand what his objection is. You want him to answer the question, but I don’t think it’s fair.

Marburger: It’s not fair?

Cavanagh: It’s not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, that uses scanning technology.

Marburger: I don’t care what kind of technology it uses. Has your offices — we don’t have technocrats on the Ohio Supreme Court. We’ve got people like me, general guys —

Cavanagh: Objection.

Marburger: — or gals. I’m not really very interested in what the technology element of it is. I want to know —

Cavanagh: That’s what’s at issue in the case, Dave.

Marburger: Not in my judgment. Do you have photocopying machines at the Recorder’s office? If you don’t know what that means in an office setting, please tell the court you don’t know what it means in an office setting to have a photocopying machine.

Patterson: I would like to answer your question to the best of my ability.

Marburger: I’m asking you to answer that.

Patterson: So if you could explain to me what you mean by —

Marburger: I’m not going to do that because I want you — I want to establish on the record that you really don’t know what it is. I want to establish that.

Now, do you know what it is or do you not know what it is? Do you understand what that term means in common parlance or not?

Patterson: Common parlance?

Marburger: Common language.

Patterson: I’m sorry. I didn’t know what that meant. I understand that there are photocopying machines, and there are different types of them just like —

Marburger: Are there any in the Recorder’s office?

Patterson: — there are different cars. Some of them run under gas power, some of them under electric power, and I’m asking if you could help me out by explaining what you mean by “photocopying machines” —

Marburger: That’s a great point.

Patterson: — instead of trying to make me feel stupid.

Marburger: If you feel stupid, it’s not because I’m making you feel that way.

Cavanagh: Objection.

Patterson: I have self-confidence and I have no problem.

Marburger: I don’t think you’re stupid.

Patterson: I think — I don’t have any problem answering the question.

Marburger: I think you’re playing games with me.

Cavanagh: Dave, the word "photocopying" is at issue in this case, and you're asking him whether something is or isn't a photocopy machine, which is a legal conclusion --

Marburger: This isn't a patent case. There's no statute that defines -- where I'm asking him to define technology for me. I'm asking -- I want to find out from a layperson's perspective, not an engineer's perspective, not a technician's perspective, but from -- I have an idea.

Marburger: How about this: Have you ever heard the term "photocopier" or "photocopy" used in the Recorder's office by anybody?

Patterson: Photocopy? I'm sure in the time I've been there someone has used the term.

Marburger: And have you ever heard them use it in referencing a particular device or machine within the Recorder's office? By way of example, "can you photocopy that for me?" That's an example of office parlance.

Patterson: That particular terminology I've not witnessed.

Marburger: What was the context that you've heard the term "photocopy" used in the Recorder's office?

Patterson: I'm sure it's been used. I didn't say I remembered a specific instance.

Marburger: All right. But you have a general understanding that people have used the term "photocopy" within the Recorder's office in terms of something that could be done there; is that true?

Patterson: I'm sure it's been used. I don't remember a specific instance or how it was used. I'm sure it's been used.

Marburger: And is it fair to say that it's been used in terms of being able to copy one piece of paper onto another piece of paper using a machine? No? Not sure of that?

Patterson: I'm sure it's been used. I don't recall a specific instance in which it was.

Marburger: Do you have a secretary?

Patterson: No.

Marburger: Does anybody there have a secretary?

Patterson: Yes.

Marburger: Have you ever heard a secretary use the term "photocopy"?

Patterson: No.

Marburger: Have you ever--do you have machines there where I can put in a paper document, push a button or two, and out will come copies of that paper document also on paper? Do you have such a machine?

Patterson: Yes, sir.

Marburger: What do you call that machine?

Patterson: Xerox.

Marburger: Xerox. Is the machine made by the Xerox Company? Is that why it's called Xerox?

Patterson: No.

Marburger: So Xerox, in the parlance that you've described, the language that you've described, is being used generically as opposed to describing a particular brand; is that right?

Patterson: All of my life I've just known people to say Xerox. It's not commonplace to use the terminology that you're using.

Marburger: You mean it's more -- people say Xerox instead of photocopy?

Patterson: If you're referring to a type of machine where you place a piece of paper on the top and press a button and out comes copies of it, they usually refer to it as a Xerox.

Marburger: Have you ever heard it referred to as photocopying?

Patterson: Not with my generation, no.

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Comments on “Great Moments In Legal Questioning: IT Boss In Cuyahoga County Cannot Identify A Photocopier”

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Any Mouse (profile) says:

Re: Re: Re:5 Re:

Then explain to the class what different meanings there are for the term ‘photocopier.’ By all means, if it could mean so many different things, then you can answer that question, right?

The man works in the IT department. This is simple technology that has been in offices for YEARS. To say he doesn’t know what a photocopier is makes him look like an idiot who shouldn’t be doing the work he is doing.

freak (profile) says:

Re: Re: Re:6 Re:

“The man works in the IT department. This is simple technology that has been in offices for YEARS.”

That could also be why he needs clarification; I have a scanner and a printer, is that a photocopier? It can fulfill the same function.

On the other hand, it’s easier enough to explain the need for clarification without F***ing about and wasting the court’s time.

Anonymous Coward says:

We have the incident that happened according to court records. What we don’t have in this article is the reason why
Patterson doesn’t want to give a straight answer.

I suspect that his omission that copy machines exists within the county office might be key to part of the setup for Marburger’s case.

Patterson is being an uncooperative witness on purpose.

I’ve always wondered why all these companies are hell bent on infringement issues but no one ever makes mention that infringement goes on all the time in court. Making copies of documents (or book exerts) with a copier to use as working documents rather than the original evidence itself that needs to be preserved. That’s as blatant as it gets for infringement.

When necessary a document is shared with the jury, the judge, and all parties involved. How many actual times have you heard during these times that anyone within court went to get permission to use it? I would suggest the answer to that would be nil or next to never.

Anonymous Coward says:

Re: Re:

In the instance of use as evidence, as long as the item is referenced in some Bibliographical form (this is an exert from “X”) there is no legal infringement since a legal case is not considered use for gain or profit. If the item happens to be a government document (excluding monetary) then there is no infringement issues at all.

DS78 (profile) says:

Re: Re:

We do have a link in the TechDirt post to the original article though (Which everyone seems to ignore).

“The overall case is about whether deeds and other records at the county recorder’s office — records that were collected and are maintained with your taxes — should be readily available at reasonable cost. “

That gives us plenty of context.

Anonymous Coward says:

If you are being deposed, the answer to the question “do you have a favorite color?” is never “red.” It’s “yes” or “no.”

Is it possible he has never heard of a photocopier referred to as anything but a Xerox machine? Yes.

When the attorney asking questions finally clarified what he meant instead of haranguing the guy, did he get an answer to his question? Yes.

Is it possible he wanted clarification on whether the computer hooked up to a flatbed scanner with access to a network laser printer constituted a “photocopying machine” before he answered “yes” or “no?” Yes.

nasch (profile) says:

Re: Re: Re:

At first it seemed like Patterson was being deliberately obtuse but based on his last comment I don’t think he was.

I have to disagree:

“Marburger: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?

Patterson: I just want to make sure I answer your question correctly.”

That was a perfect opportunity to either just say “no, I don’t know what a photocopying machine is” or explain why he was having difficulty with the question. His answer seems evasive. It neither answers the question nor explains why he cannot answer it.

Anonymous Coward says:

Re: Re:

“has the Recorder’s office had photocopying machines?”

Honestly I would not know how to answer that either, especially if it was key to a case. At my office I have several different multi-function printers that can copy but none of them are Photocopying machines. Because of all of their features, I’m not comfortable with the idea of answering yes, and then having that functionality being glossed over, or assumed. It may or may not be important to know that the Hard Drive on my Multi-function printer keeps a copy of everything it makes copies of, but either way its not what in common parlance is considered a copier.

Instead of being a punk, the prosecutor could have asked, “have you or anyone else at you office ever made copies? What did you use?”

Simon says:

I can’t tell who’s worse, the idiot who thinks he’s smart while dodging the question or the prosecutor for perservering, or come to think of it, the judge sitting there tolerating so much time wasting and obvious avoidance.

I suppose all the key players in this “Yes you did, No I didn’t” scenario care about is that they’re getting paid while they play their schoolyard games.

What a fucking joke.. take ’em out the back and shoot the fucking lot of them.

Hugh Mann (profile) says:

Yeah, not so unbelievable, actually.

I’ve lived in Ohio, and I would not be at all surprised if the guy really didn’t know “photocopier” was the more accurate generic term for “Xerox machine”. Honestly, I would shake my head in dismay, but I wouldn’t be particularly surprised. And, yes, I know he’s supposed to be the IT guy for the county.

However, it appeared that (according to the County’s attorney), photocopying technology was potentially an issue in the case, so he possibly instructed his client to not answer questions about “photocopiers” unless it was about a specific kind of photocopying technology or something.

And, of course, we’re all happy to point to the other guy as being difficult and/or stupid, but just wait until you believe your side of a dispute depends on a particular interpretation of a word or concept.


Pippers says:

He has a VALID point.

Most people in IT don’t touch the classical “copying machines”. Like Xerox machines and such. The older ones are not considered computers, or networked, and IT has absolutely NOTHING to do with them. They last for 10, 20+ years and the only people who touch them are service people. IT generally handles scanners, and multifunction printers which sometimes have built in scanners which can also do scanning.

The person asking the questions obviously has no idea what they are asking about. If they are simply asking about copying machines in the classical sense, then they should not be talking to someone in IT. They should be talking to head of their facilities. The guys who place desks, chairs, and usually handle copying machine placements. Maintenance is almost always contracted out because you need special certifications from the manufacturer to even touch them.

Ven says:

Re: Re: He has a VALID point.

Umm, yes, that is in fact almost exactly what the word means. A machine that makes photographic copies. Where the prior common method to make a copy of a document was to have a secretary type up a copy, possibly introducing significant errors, a photographic copy machine or photocopier is capable of making a copy by way of a photographic technique, producing a copy that is nearly identical to the original.

Coises (profile) says:

It seems ambiguous to me

My immediate reaction was that if someone insisted that I answer, yes or no, whether I have a photocopier in my house, I’d be puzzled as to how to reply. I have a printer/scanner which can be (and has been) used to make photocopies. I don’t have a dedicated photocopying machine. If I were sworn to tell the truth, yet not allowed to explain that simple ambiguity, I’d be frustrated and angry… I’d feel like I was being set up.

Nick Coghlan (profile) says:

Re: It seems ambiguous to me

If that had been the problem, the answers to some of the questions would have been different.

The last part of the transcript does make me think it may have been a genuine dialect problem, though.

(e.g. similar to the way lots of people in the US South use “coke” as a generic term the way others would use “soda”, “pop” or “soft drink”)

Anonymous Coward says:

How to write an article on Techdirt:

1. Assume you are the smartest person involved, including all the principles being discussed.

2. Assume you know everything about the context of the issue being discussed.

3. Assume that all lawyers, politicians, and government officials are maximally corrupt, ignorant, and lazy.

4. Assume anything you don’t like or doesn’t make sense to you about the status quo is the result of corruption, willful ignorance, and/or malice.

5. Start typing.

Meek Barbarian (profile) says:

Re: Re:

How to be a troll:

1. Be a Dick.

2. Ignore most points, attack Mike. Maybe pirates, nazis, or other posters, depending on mood.

3. More dickisheryness. Hey, look, trolls can create new words! We have to be smarterish than Mike now.

4. … PROFIT???

(5. PS: Just dicking with ya. It’s what we trolls do.)

(6. PPS: Bitch that someone infringed – i mean pirated – i mean stole – my profit from step 4, even if I haven’t made it yet.)

DS78 (profile) says:

After reading the original article and what the case was about, its my opinion he was coached about questions partaining to copies.

To all those who have never heard the term “photocopy machine” or “photocopier”. Really? It would be the same as the lawyer asking if the guy knew what a soft drink was, and in the end the guy admitting that “Oh, well, we call it ‘pop’ or ‘coke'” after going through all that.

DS78 (profile) says:

Re: Re: Re:

You’re right he probably did want an admission. He probably wanted either A) for the guy to admit there was a copy machine in the office or B) that the guy didn’t know what a copy machine was.

The guy being questioned was stuck either way. Option A he answers a question his lawyers/employer didn’t want him to answer (Bad for his employer’s case). Option B the tax payers find out that they are employing an “IT” person who doesn’t know what a photocopier is (Bad for him keeping his job).

Also, not sure where you’re going with the soft drink comparison, but to the common person that’s the only definition of soft drink, unless you’re trying to weasel out of a question by twisting words.

Xerox is to photocopy machine as
Coke is to soft drink.

Anonymous Coward says:

Re: Re: Re: Re:

“to the common person that’s the only definition of soft drink”

Hardly. For example, most people I know wouldn’t refer to juice, water, or milk as a “soft drink,” although those are all beverages without alcohol.

The deponent was perfectly happy to tell the guy whatever facts he wanted to know (i.e., we have machines that make copies that we refer to as Xerox machines), but the deposing attorney appeared interested in a sound bite that made the guy look dishonest rather than the facts OR was two stupid to realize he could get the facts he was looking for by rephrasing a question (which I think is unlikely, but there are some pretty dumb attorneys out there).

weneedhelp (profile) says:

Never heard of a photocopier gimme a break. The xerox machine phrase went way out while I was still in high school.

I guess after this he went to his horseless carriage that has a Bent eight, and stopped at the malt shop, for some pop, then stopped to visit his big daddy, then picked up his baby for some back seat bingo where he would Go ape, and his friends could see he was radioactive, (take deep breath) but, then the Blue Meanies showed up and we had to Agitate the Gravel, so the flat foots wouldn’t discover that my baby is an Ankle-biter and throw me in the can.

Anonymous Coward says:

Re: Mimeograph

They’re the ones that smelled so yummy, right?

(there’s a scene from a movie – Fast Times at Ridgemont High? Ferris Bueller’s Day Off? – where all the kids in class pick up their fresh ‘dittos’ and give them a good, long, happy sniff)

Sigh. I can still smell them in my head. 🙂

Rabbit80 says:

Even photocopiers aren't photocopiers...

These days the push is for them to be called MFDs or Multi Functional Devices. Typically the MFD does all the office printing, scanning, faxing, emailing of paper documents and copying. Copying in the digital age has taken a back seat and is now one of the lesser used functions of the MFD. I know of plenty of offices where the copying capability of the machines is disabled entirely unless the user obtains a PIN number.

robin says:

We call ’em document capture devices. digitize the document then forward it to a business process in the doc mgmt system, to a file share, a fax number or an email address. Do people still create hardcopy duplicates of a document? Egads, why? Insufficient hard drive space or a desire to fill the file cabinet so you can add another to your workspace?

I love the fact that this guy forced the lawyer to do his job. It’s a reminder why lawyer jokes are so funny.

JP says:

I'm sad

I’m sad because I live in Cuyahoga county and because I also work in IT (in the private sector of a local business)… If this is the type of incompetence that we have working in IT in Cuyahoga public sector, I’m truly and utterly dissapointed and saddened. *sigh*

I’d offer to submit my resume to be head of IT for the County… But I’m afraid I’d have to undergo a lobotomy to come down to this level of stupidity… Anything less and I’d probably be considered over-qualified for the job.

Joe (profile) says:

Re: I'm sad

It very well may not be stupidity, but just the appearance of it. Playing verbal dodgeball may have kept him from giving testimony that could be used against him or his company. Also, keep in mind that many depositions have a time limit. This IT guy managed to get the lawyer to waste an incredible amount of time over ONE question. Someone else said that they felt the guy was coached to respond that way and I tend to agree. I’d say that it was a pretty decent job by the IT guy (if those were his intentions).

as a tech person says:

I sort of sympathize, actually.
In the world of modern technology it’s pretty hard to know what’s what.

I mean, if I saw no, we don’t have a photocopier, and then it comes out later that somewhere in the office somebody had a 3-in-one inkjet/scanner/fax machine, have I committed perjury?

With all the different devices around today it’s not super clear what’s what. And people from different generations use completely different words for things, too. Like I never say xerox or photocopy is I want a copy of something. I usually just say send my a copy or pdf it or something.

Now I admit I don’t really have any notion of the context for which this information is requested, but I can sort of understand being that way in court.

Nick Coghlan (profile) says:

Terminology problem

Notice the complete change in the tone of the responses as soon as the deposing lawyer describes a photocopier by its *function* (i.e. stick a piece of paper in, push some buttons, get a copy out) without reference to the specific term “photocopy”.

For words that are quite common for almost everyone (such as photocopy), it can be quite hard to come up with a non-circular definition to bridge the gap in understanding to somebody else that uses a different term for the same thing (such as Xerox). Once you manage to link the terms, suddenly enlightenment dawns and a conversation that was going in frustrating circles can start moving forward again.

If the obstruction had been deliberate, then the switch to a functional description shouldn’t have produced such a complete change in the nature of the responses. Just look at the last six answers – after all the dithering about whether or not people ever photocopied anything in his office, he was quite happy to say they had a xerox machine that they used to xerox stuff.

While I find it surprising that anyone could have avoided learning the “Xerox = photocopy” equivalence by the time this deposition was taken, the transcript certainly has the right feel for it to be a genuine case of simply not knowing what the word means. A definite failure on the defence lawyer’s part if true, though – if the term was so important to the case, he should have made sure that both he and the deponent knew what it meant going in (and it doesn’t take much Google-fu to find out what a photocopier is).

nasch (profile) says:

Re: Terminology problem

Notice the complete change in the tone of the responses as soon as the deposing lawyer describes a photocopier by its *function* (i.e. stick a piece of paper in, push some buttons, get a copy out) without reference to the specific term “photocopy”.

Perhaps that was the point where he could no longer reasonably claim to not understand the question. As we can see, before that point he could claim confusion and people can reasonably believe it is genuine (not that I know for sure it wasn’t). Once he’s asked in terms a five year old could understand, he can’t stall anymore.

I think he was intentionally stalling and obfuscating, and he got the most mileage he could out of it. He did it so well it’s even possible that’s not what he was doing.

C Gochay says:

I recall seeing ads or public notices in books and publications about writing (Writer’s Digest possibly) from trademark owners reminding writers to use generic terms such as tissue or copy instead of Kleenex or Xerox. Seemed odd to me as I’d thought you’d want the “free” publicity or your brand to define the entire market. Not so it seemed.

And with that in mind it seems Xerox for one has done a good job at this. I’m pretty sure I can recall using the term Xerox when I was after copies. I think I also use to use the term “photostat” when I was very young. Short for photo-static copy I guess. It was the early ’70’s and the newspaper office my father worked at recently had purchased a new photostat machine and I’d get him to make copies of collages and ‘zine type pages I’d made. I’m trying to recall but it may have been at this time I was corrected in my terminology – but this may seem odd I don’t remember from which term to which I was being directed to use. I think my father or someone at the office was confused by or didn’t the term “Xerox” and suggested photostat instead.

Confusion way back then.

As to the terminology used in the office in the article and the specific fluidity of things going on with tech and its nomenclatures today, I’d say there is not enough info here to condemn this witness.

His office, he says or implies uses the term Xerox with respect to taking a paper document, putting it in a machine and getting a paper document out that is a replica or facsimile of the original. So everyday, clerks, secretaries and managers et al. are Xeroxing documents, producing paper copies for people (or so I assume base on what the case was about). Now can clients or the public ask that copies be put on a disc or USB drive instead? Or can they call back later after a visit to the office and ask for a document previously “photocopied” to be emailed to them, emailed because part of the copying process they were (hypothetically) told involved scanning and storing an electronic copy? And does one process versus the other cost less or more than the other (ya, we are talking crazy government bureaucracies here, but that’s a whole other ball of wax)? And/or do clients have only one option or right to receive documents in a certain format? If this is the case, the witness certainly needs to know the terms as understood by all. Mind you, yes the questioning could have been handled differently but it’s quite evident both sides know something we don’t and that something is important to the direction the questioning and case is going. And that the outcome is going wind up doing one or two things. One, costing taxpayers money (apart from the cost of the apparent inanity of the case) and two, creating regulation or procedure that likely should be done by regulators or office managers (well, sorta maybe cuz ya, once again we’re talkin’ civil service and gov bureaucracy her).

Adam G (profile) says:

Although it was probably said in another comment, I still feel I need to re state the following.

I could clearly understand the need to define a photocopier. The lawyer could have tried to be more creative in such that he could use other terms such as Copy Machine, Copier, Xerox, or as he eventually did, describe the function of the device.

Because in the modern world, technically couldn’t a cell phone be called a copymachine? You can take a photo of something and then wirelessly print it to a printer.

As someone who works with a lot of various technical fields. There is a constant confusion over what is common acronyms and other technical slang. I think its short sighted of the lawyer simply because he is so familiar with a term that he deemed it as “common language.”

The lawyer constantly tried to push the same angle, repeatedly, instead of trying to approach the question at different perspectives and terminology.

Also, it could potentially be that a photocopier only copies photos and a document copier only copies documents.

I’ve met people who believed they needed to buy the Office Max’s CDs with the label printed “Music CDs” to make a music CD and they would argue that a regular any CD wouldn’t work.

Tomas S P says:

definition and meaning of a word

What Patterson did was the correct responce to the question because a word could have two similar but different meaning. Look at the definition of the word hiway in webster’s dictionary and its definition in a law dictionary, similar but very different. I know this because i ended up in jail because of it. The problem is that in school growing up we used webster’s dictionary not the law dictionary.

Jeffro says:

The term "photocopying machine" is so ambiguous

It’s true that the term "photocopying" is so ambiguous that it has simple definition had Patterson looked up in the dictionary for its meaning instead of acting so dumb in court. There’s a difference between photocopying and ‘Xerox’. As according to the dictionary which by the way is not from Webster’s or other dictionaries. This one is different. A ‘photocopy machine’ is: a machine that uses a photographic process to produce an almost instant copy of something printed, written, or drawn. Very simple words that many can understand. When Patterson gave a dumb answer of "Xerox", he is using the patented name as described in this same dictionary which is by the way, an invalid answer: a trademark for a photocopying process that uses xerography. One of the reasons why the County lost its case.

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