Opinion
19-cv-01441
12-12-2022
ROSEMARIE C. WISEMAN, Plaintiff, v. SANTIVA, INC., et al., Defendants.
For the Plaintiff: THE LAW FIRM OF JOHN C. IRELAND BY: MR. JOHN C. IRELAND For the Defendant: ZANE D. SMITH & ASSOCIATES, LTD. BY: MR. ZANE D. SMITH MS. SHEILA A. GENSON Court Reporter: MR. JOSEPH RICKHOFF Official Court Reporter
EXCERPT OF TRIAL PROCEEDINGS
APPEARANCES:
For the Plaintiff: THE LAW FIRM OF JOHN C. IRELAND
BY: MR. JOHN C. IRELAND
For the Defendant: ZANE D. SMITH & ASSOCIATES, LTD.
BY: MR. ZANE D. SMITH
MS. SHEILA A. GENSON
Court Reporter: MR. JOSEPH RICKHOFF
Official Court Reporter
BEFORE THE HONORABLE SUSAN E. COX, AND A JURY
PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER
(Proceedings had in open court:)
THE CLERK: 19 CV 1441, Wiseman vs. Santiva.
MR. SMITH: Your Honor, I have an issue that I'd like to discuss before the jury comes back.
THE COURT: Of course you do.
MR. SMITH: So, the questions that I have made multiple objections to in terms of whether or not Scott has paid the monies back. And if you recall during the examination
THE COURT: I recall. Keep going.
MR. SMITH: We believe that that opens up the issue of whether or not there were attempts to resolve the case
THE COURT: No, it does not.
MR. SMITH: - prior to
THE COURT: It does not.
MR. SMITH: If I can make my record?
THE COURT: Make your record, but I don't believe it's a 408 issue.
MR. SMITH: Okay. So
THE COURT: And please make it fast because I don't want to keep the jury waiting.
MR. SMITH: Absolutely.
So, the issue is, is that if the Court -- if the jury has heard the fact that we've never paid it, we've never made any payments -- counsel went all the way back to the date after she left and through today and all the litigation and we've never paid the overtime.
THE COURT: Right.
MR. SMITH: That suggests that we never wanted to pay the overtime, we never tried to pay the overtime. And that's not true.
THE COURT: It's not a question of whether you could compromise the claim or not. Either it was paid in full or it wasn't. It's a question of fact.
MR. SMITH: Okay. What is in full? Nobody knows.
THE COURT: Well, that's something you argue to the jury. I mean, I assume you're going to argue to the jury that your client doesn't owe anything and never did and, therefore, there was nothing to pay at any point in the case, including in the litigation. And, certainly, I would permit you to argue that based on the evidence.
But we're not going to get into settlement negotiations because, first of all, I think that -- I don't think the door's been opened. And, second of all -especially given what your defense is.
And, second of all, you're injecting into the case something that would be, I think, kind of fraught with peril and would lead to probably having to recall Ms. Wiseman. You know, it's possible then lawyers become witnesses as to what was said or not said. We're just not doing that. So, your objection is overruled.
MR. SMITH: So, the problem is I'm not sure how to approach it because I don't want to violate the Court's
THE COURT: Mr. Smith, I'm going to interrupt you. I think you know how to approach it. You just need to ask your client, do you believe you owe Ms. Wiseman any overtime and is that why you've never paid it? How hard is that?
MR. SMITH: Yes, your Honor. Got it.
THE COURT: You're permitted to ask those questions.
MR. SMITH: Okay.
THE COURT: There have not been objections to your -there have been a couple objections to your leading the witness. There haven't been objections to many of the times you have led. I would just ask you to try to keep your questions -- he's on direct now. I know you're used to cross. He's on direct, so your questions should be not leading. They should be
MR. SMITH: Yes, your Honor.
THE COURT: He's testifying.
I didn't want to say that in front of the jury, though.
MR. SMITH: I appreciate that.
MR. IRELAND: Your Honor, I was somewhat confused because we agreed that he can lead in regards to new areas and -- you know, so --
THE COURT: Well, if you don't care.
MR. SMITH: That's what I thought, too. But that's okay. I'll
THE COURT: Well, isn't he on direct examination?
MR. SMITH: Well
MR. IRELAND: He's
THE COURT: I guess you've muddled it all because of what you guys are -- and I appreciate you're just calling him once. I don't mean muddle in a pejorative way.
Look, Mr. Ireland, if you don't care, I don't care.
Usually when you have a hostile witness on direct examination -- not a hostile witness, a non-hostile witness on direct examination, you don't lead. But if you're okay with it, I'm okay with it.
MR. IRELAND: Well
THE COURT: Your case.
MR. IRELAND: Not
THE COURT: Not mine.
MR. IRELAND: I appreciate that, your Honor.
THE COURT: You did object a couple times. So, I thought maybe you did care. But I guess you don't.
MR. IRELAND: Well, and then I got denied and I thought perhaps
THE COURT: Well, the questions you objected to weren't leading questions.
MR. IRELAND: Okay. I see. I see.
THE COURT: But that's okay. You guys do -- you guys be you. It was a suggestion.
MR. IRELAND: Thank you.
THE COURT: Mr. Ireland, do you think you're going to have a lot of redirect?
MR. IRELAND: No, your Honor. Perhaps -- yeah, very little.
THE COURT: Very little. Okay. Thanks.
Well, it looks like we're doing good. He's been on -- he was on the stand for about 45 minutes.
MR. IRELAND: I've got it 1:28, your Honor. I have a timer. 1:28 left, I should say.
MR. SMITH: You're timing me?
THE COURT: Believe me, the jury appreciates a trial moving.
MR. IRELAND: I timed myself also, sir.
THE COURT: I have, too, actually. I've been timing everybody since you made the agreement. I think that's good. And I appreciate you doing it, because otherwise I don't think we would have finished this case.
(Jury in.)
THE COURT: Good afternoon, ladies and gentlemen.
Hope you had a good lunch. Have a seat.
Mr. Smith will resume his examination.
MR. SMITH: Thank you, your Honor.
Good afternoon, ladies and gentlemen of the jury.
A JUROR: Good afternoon.
RAYMOND SCOTT HENNING, DEFENDANT HEREIN, PREVIOUSLY SWORN CROSS-EXAMINATION (Resumed)
BY MR. SMITH:
Q. When we broke, Scott, I was asking you about trust issues, if you recall. I asked you if you trusted Ms. Wiseman while she worked for you. And I think your answer was "Yes"?
A. Yes. Yes.
Q. Can you pull that mic closer to you. The mic. There you go.
I want to ask, did you also trust Ms. Wiseman to provide you with the backup or information if she was claiming overtime?
A. Yes.
Q. So, if, for example, on the timesheets she submitted, if she claimed overtime of X number of hours, did you trust Ms. Wiseman to give you the information so that you could get her overtime hours?
A. I trusted she had the information that I would need for those hours.
Q. And, in fact, she gave them to you each and every pay -A. Well
Q. -- pay period?
A. -- she gave me her hours.
Q. Right.
When you communicated with Ms. Wiseman, was the primary way you communicated verbally?
A. Yes.
Q. And why was that?
A. Well, usually she was right with me in the office or the warehouse.
Q. So, if you wanted to talk to her, you could just turn and talk to her or could you just walk out of your office and talk to her?
A. Yes.
Q. In your office, how far away was she from you physically?
A. Ten feet.
Q. So, from where you're sitting to the jury box?
A. Yeah. You could just say someone's name and they're like, yes.
Q. Could you -- I don't want to put this wrong, could you yell out and say, Rosemarie, what about certain spice?
A. Yeah. I'm not a big yeller, but I could say, are you there?
Q. Okay. That's what I meant.
A. Okay.
Q. I didn't mean you were yelling at her.
A. Okay.
Q. I mean you were able to communicate without getting up off your chair?
A. Right. Correct.
Q. So, if you had a question for her, you could go to her and say, Ms. Wiseman, can you get me the picture of the peanut butter?
A. Correct.
Q. Now, you testified that you received lots and lots of e-mails.
Do you remember that?
A. Yes.
Q. You also testified that you didn't really look at the dates or the times of the e-mails, correct?
A. Correct.
Q. Why are you getting so many e-mails during this period?
A. I have multiple e-mail accounts, and I'm constantly getting e-mails from suppliers, new suppliers, unsolicited e-mails, trade show information. So, I just get a lot of e-mails.
Q. So, during the period of 2016 through 2018, can you tell the jury approximately on average the number of e-mails you would get per day?
A. Could be anywhere from -- on a slow day, could be 28 to 200.
Q. Now, when you got e-mails, you testified that you don't really look at the time of the e-mail, right?
A. No.
Q. Why not?
A. I look at the substance of the e-mail. Just because you have too much time to say what's the title of the e-mail, is that important? Is it something you need to answer? Is it something that's spam, trash, whatever? So, I pretty much just look at what the title of the e-mail is, and then if I elect to open it and see what it is, fine.
Q. Is it fair to say that your focus is on the subject matter -- is on the body of the e-mail?
A. Yeah, on the subject matter first and then when you go into the e-mail.
Q. Now, I want to talk for just a minute about this combined paycheck issue where Cary's hours were combined with Ms. Wiseman. Okay?
A. Okay.
Q. Do you agree that the total amount of time that those two payroll checks was combined was about two months?
A. Yeah. It wasn't a real long period of time.
Q. So, over this two-plus-year period, the only paychecks that were actually combined was maybe two, two-and-a-half months, fair?
A. Yes. Yes.
Q. Okay.
Now, tell the ladies and gentlemen of the jury what happened to cause you to change from combining the two paychecks to having two separate paychecks?
A. Well, originally Rose brought up that she wanted to put Cary and her paychecks together and it was fine to do. And I'm not really sure why. But I've never had a husband and wife work with me. So, it was always individuals.
So, I'm like, well, okay, whatever reasons. But it was very confusing backing out this, trying to figure this, that. It just -- it just was. And, then, towards the end, I was talking to my payroll person saying, all right, I'm calling in these payrolls, but it's so confusing for me. And she goes, well, you can't do that; you cannot have two people on one payroll even it they're husband and wife. Said, you need to back these out.
And I always try to do everything the right way. So, she asked me to go through all these and back his hours from her hours, which I had to do in order to fulfill what she said was the right way to do it.
Q. So, in fact, did you do that? Did you -A. Yes.
Q. Hold on.
Did you, in fact, go into Ms. Wiseman's payroll and Cary's payroll and back out the combined payrolls?
A. Yes.
Q. And, then, what did you do?
A. Well, then I gave the broken-out hours to Paychex, which is a national payroll company, and then they went ahead and made up each one to have their payroll records created the correct way.
Q. And did you, as you are required to do, issue W-2s to each one of them?
A. Yes. The corrected W-2s were issued.
Q. And those W-2s, again, were they generated by you at your desk or is this something the payroll service did?
A. All through the payroll service.
Q. Okay.
So, let me show you the payroll journal, which is Exhibit K -- Plaintiff's 22. And this particular one I think is Bates 87. And this is an example of the payroll journal. And it shows the time in, the time out, and the check and all that, right?
A. Correct. Yes.
Q. Is this a document that was generated by your payroll service?
A. Yes.
Q. All right.
And if we go to the end of the section for Ms. Wiseman, it shows in the last payroll 12-22-17 and then January 5th of 2018, and then January 19th of 2018, and then January 25th of 2018.
Is this the cleanup for the final checks for Ms. Wiseman?
A. I believe so.
Q. This is the corrected payroll for Ms. Wiseman, correct?
A. Yeah. When was that dated? Up on top it says 1
Q. Yeah, this is 1-29-16 to 1-25-18. But I'm just showing you the last page.
A. It should be the corrected if it's just her name on it. It's hard
Q. Let me make it a little bigger. See that?
A. Correct.
Q. So, these are the -- are these the -- is this record a record of the final checks that Rosemarie received?
A. I believe so. It's hard to tell because I'm not looking at possibly the payroll record combined, as well as the payroll record here just to say, yes, it is.
But I believe it is if it just says her name on the top.
Q. Right.
So, let me -- so that we're clear, Bates 83 all the way through
(Brief pause.)
MR. IRELAND: Your Honor
MR. SMITH: Hold on.
BY MR. SMITH:
Q. Bates 85 all the way through 95 are Rosemarie's payroll journal?
THE COURT: Hold on.
MR. IRELAND: Objection.
THE COURT: What's the objection?
MR. IRELAND: My document is two pages long, your Honor. I'm not sure what that is.
THE COURT: Why don't I give you a few minutes to confer, make sure you're talking about the same exhibit I admitted into evidence.
MR. SMITH: Okay. Let me lay a foundation then.
THE COURT: No, no, no. I want -- the document that you just used is not the same document that's in evidence, correct? Is that
MR. IRELAND: Correct, your Honor.
THE COURT: -- what you're saying?
MR. IRELAND: I specifically chose two pages that we didn't have paychecks for because we didn't have paychecks.
THE COURT: Okay.
And what are you attempting
MR. SMITH: I think counsel's right. I made a mistake. I grabbed it out of the book thinking that all the pages had been admitted and they have not.
THE COURT: Okay.
So, what you need to do then so the record is clear, you need to re-mark that as another exhibit and then ask for it to be admitted because it's different. So, it's not in evidence.
MR. SMITH: Okay.
If I may inquire, is there an agreement that this is
THE COURT: If you have to write it on, you can. Just make sure it's clear that it's a different document.
MR. IRELAND: No objection.
MR. SMITH: Okay.
So, let me move to admit
THE COURT: Lay the foundation first, sir.
What's it called?
MR. SMITH: Payroll Journal.
THE COURT: Okay. And
MR. SMITH: There's two payroll journals. One is for Cary Wiseman for the period of 1-29-16 through 1-25-18, and the second journal is for Rosemarie Wiseman from 1-29-16 through 1-25-18.
THE COURT: Okay.
So, now do what you need to do to lay a foundation for the admittance of that record, unless, Mr. Ireland, do you agree that this is admissible?
MR. IRELAND: I agree it's admissible, your Honor.
THE COURT: Okay. Well, then we can dispense with all that and get to it.
MR. SMITH: So, move to admit.
THE COURT: Uh-huh.
MR. SMITH: Thank you.
My apologies.
THE COURT: No problem.
BY MR. SMITH:
Q. So, getting back to the question, I want to show you the last page of the payroll journal that I showed you before and ask you if this is -- correctly reflects the final four checks -- 12-22, 1-5, 1-19, 1-25 checks - that Rosemarie received?
A. I believe so.
Can I see the first page on that? Is there a -- on the top right-hand corner. No, on the -- yeah, on the beginning of the first page. The top right-hand corner. Okay.
MR. IRELAND: Your Honor, could we have the Social Security number redacted?
THE COURT: Oh, yes, absolutely.
BY THE WITNESS:
A. Yeah, as long as it just has her name on it, I believe that's the correct record.
THE COURT: Okay. And, Mr. Smith, please redact those Social Security numbers.
MR. SMITH: Absolutely. I don't see it on here.
MR. IRELAND: I might have missed it, your Honor.
THE WITNESS: They usually just put the last four digits.
MR. IRELAND: I don't have that document in front of me, so -- I thought I saw it on the screen.
(Brief pause.)
MR. IRELAND: That's correct. It was the Santiva number at the upper right, your Honor.
THE COURT: All right.
MR. IRELAND: Four numbers. I thought it was
THE COURT: Okay.
MR. IRELAND: Thank you very much.
THE COURT: All right. Good. So, you both have the document now?
MR. SMITH: We do.
THE COURT: Okay. Great.
BY MR. SMITH:
Q. So, this is the upper right-hand corner. Is this what you wanted to see?
A. Yeah. I thought I just put a yellow circle up on top somewhere on the first page on the right-hand corner.
Q. Okay.
So, let me get back to my question. Again, showing you what we've marked as Exhibit K, Bates No. 95, this is the payroll journal for Rosemarie Wiseman and shows the last -this journal shows the last four checks, right?
A. Correct. Yes, correct.
Q. Those are -- the last two checks -- the last three checks, rather -- those are the corrected checks. Those are the checks after the two payrolls between Cary and Rosemarie had been separated?
A. I believe so. Without comparing the non-corrected, I'm just assuming that's the corrected payroll.
THE COURT: Well, don't assume.
BY MR. SMITH:
Q. "Yes" or "No"?
A. Yes.
Q. Okay.
So, now let me show you Cary's record and go to the second page, which is, again, Exhibit K, Bates No. 84.
MR. SMITH: Or 399? Which one is it? Both. All right.
They got two Bates numbers on the bottom.
BY MR. SMITH:
Q. Now, this is the payroll journal for Cary, right?
A. Correct.
Q. And in this at the end of this journal, it has checks for 12-22, 1-29 and 2-16, correct?
A. Correct.
Q. 1-28. Sorry. 1-28-16 and 2-16-16. I'm sorry. It's 12-22-17 right here. This one right here. See that?
A. Yes.
Q. That's Cary's last check. Correct?
A. No. I think Cary had a last regular check after he provided his Social Security number finally.
Q. Right.
But this is the check that was issued before the corrected check that you issued after they left, after January of 2018?
A. Yes.
Q. Okay.
So, the point of my question is you cleaned it up.
You fixed the combined checks and you separated out the two checks, one for Rosemarie and one for Cary, once you were told by the payroll service that this was incorrect?
A. Correct.
Q. Okay.
Now, there was testimony from Cary that you sent an Uber to pick him up. Remember that?
A. Yes.
Q. Why did you send an Uber to pick up Cary so that he could come to your work?
A. Cary -- well, what happened, Rose said that she'd have to 20 leave -- we were still working -- because Cary doesn't
MR. IRELAND: Objection.
THE COURT: Yeah, I think we need a sidebar on this. (Proceedings had at sidebar:)
THE COURT: Go ahead.
MR. IRELAND: The objection, your Honor, is he was clearly going towards the issues that had been barred by motion in limine regarding the alcoholism, DUIs, et cetera.
THE COURT: It seemed that way to me, as well.
MR. SMITH: Well, how do I explain the Uber?
THE COURT: Why do you need to explain it?
MR. SMITH: Because why would he ask and pay money for an Uber for an employee unless it was extraordinary circumstances?
THE COURT: You know, I just don't think that's relevant to the case.
MR. SMITH: Well, counsel opened it up by asking -THE COURT: You didn't object to it.
MR. SMITH: I didn't.
THE COURT: Well, what you're going to do -- the marginal relevance of this piece of evidence to anything that we're doing in this case would be vastly outweighed by the prejudice you might cause the witness to create by revealing things about Mr. Wiseman that the Court has clearly barred in a motion in limine ruling.
MR. SMITH: The DUIs were barred, Judge.
THE COURT: But you're just
MR. SMITH: Not the fact that he doesn't have a driver's license.
THE COURT: If all you're going to do is ask him whether or not he has a driver's license, that's okay. It seemed to me you were moving in a slightly different direction and your client was moving in a different direction, and that's what I'm worried about. Your client has a tendency to just talk and talk and talk and talk. And I don't want him talk and talk and talking himself into issues that are not relevant and are prejudicial in this case.
So, I think we need to be clear what he can and can't say. If he wants to say, hey, you know, he doesn't have a driver's license and, therefore, he sent him an Uber to bring him to work, that's fine. Anything past that is not. And I don't want to risk the chance that your client blurts something out.
MR. SMITH: Okay. Well, then I'm going to ask that question in a leading way so as not to ask it open-ended so we don't have the wrong answer
THE COURT: And make sure
MR. SMITH: -- in contraversion to the Court's order.
THE COURT: I appreciate that. And make sure you tell him to answer "Yes" or "No" only.
MR. SMITH: Okay.
(Proceedings had in open court:)
THE COURT: For the record, the objection is overruled in part and sustained in part.
MR. SMITH: Okay.
BY MR. SMITH:
Q. Scott, you heard the testimony from Cary that he would -you would call him an Uber in order to pick him up and bring him in to work, right? You heard that?
A. I believe that
Q. Just "Yes" or "No."
A. -- happened once or twice. Yes.
Q. Is the reason that you needed to do that is because Cary did not have a valid driver's license; "Yes" or "No"?
A. Yes.
Q. So, while we took a break there, my assistant co-counsel saved me and found the final check. And I want to make sure. This is a check that was written on March 16th of 2018. Do you see the date there?
A. Yes.
Q. Okay.
This is the final check that was issued to Cary pursuant to the separation of the two checks, right?
A. Correct.
MR. IRELAND: Objection, your Honor.
BY THE WITNESS:
A. Correct.
MR. IRELAND: Relevance.
THE COURT: I think the objection should be asked and answered because we've gone over this now a number of times.
MR. IRELAND: Asked and answered then, your Honor. THE COURT: That's sustained.
I think this point -- your point has been made. It's time to move on to another topic, sir.
MR. SMITH: Okay.
BY MR. SMITH:
Q. Now, Ms. Wiseman provided the Court -- I'm sorry, provided and showed the jury Plaintiff's Exhibit No. 5. And she went through this list of records. And you heard the testimony where she said that she worked on each and every one of these items, and she testified that she worked on these items on or about the dates that are listed on this document, correct?
Do you remember that?
A. Yes.
Q. Is there any way that you can determine how much time she put into any one of these pages and pages of pictures of JPEGs that can help you determine how much time she put into this?
A. No.
Q. Is there any record anywhere that you'd be able to access or look at or pull up that you would -- allow you to make a determination of how much time and, therefore, how much overtime was spent according to her on all of these doc- -all of these items?
A. No.
MR. IRELAND: Objection.
THE COURT: Well, the answer is already in.
BY MR. SMITH:
Q. I want to ask you some specific information or questions about this. You've looked at this. You've had the opportunity to look at Exhibit 5, which has pages and pages and pages of information on it. Do you have an opinion as to what the source of this information was?
MR. IRELAND: Objection.
THE COURT: We're going to have a sidebar right now about this.
(Proceedings had at sidebar:)
MR. SMITH: If I may cut this short, Judge, he's going to testify it came off his office computer.
THE COURT: Joe, what's the last question he asked?
(Record read.)
THE COURT: His opinion is not relevant. Either he knows where the document came from or he does not. Whether he has an opinion, a guess, a thought about it, is not evidence. Okay?
MR. SMITH: Okay. I'll rephrase the question.
THE COURT: So, you need to rephrase it.
MR. SMITH: Yep.
THE COURT: Thank you.
(Proceedings had in open court:)
THE COURT: The objection is sustained. BY MR. SMITH:
Q. Scott, do you know where the information on Exhibit 5 came from?
A. I believe the images -- which we say JPEG or whatever -were captured from my Web site, and then this is nothing but a record of that they were just captured.
Q. Okay.
A. Not showing any work or anything done.
Q. Explain to the jury what the word "captured" means.
A. It almost would be like if you were on your phone and you copied an image and you made a new folder, like on your iPhone or whatever you might have, is basically that. Taking an image and just placing it again into your -- so, you're like moving a file from one file to another. That's really what it is.
Q. Now, on this document, there's a reference to movies, if I can find it.
(Brief pause.)
THE WITNESS: The right-hand side it says QuickTime movie.
MR. SMITH: Here we go.
BY MR. SMITH:
Q. Page 375 of Plaintiff's Exhibit No. 5. You see on here it says 059 MOV, 062 MOV?
In your business, Scott, did you have any reason to have a movie attached to any of your items or things that you had for sale?
A. We have no movies on our Web site.
Q. And the page before that, at the bottom there where it says 18, 19, 20 MOV, that's a -- do you know what that is, what that's a shorthand for?
A. Movie, MOV, because it says QuickTime movie to the right. Q. Okay.
And did you have any need or any work that would have been required on any movies?
A. No.
Q. Did you ever work before or since
MR. SMITH: Well, strike that.
BY MR. SMITH:
Q. Did you ever manipulate or work on these kinds of JPEGs in order to get them ready for sale on Amazon?
A. I have personally, yes.
Q. And when you worked on these, did you ever have to work with a movie?
A. No.
Q. Now, there's a reference here in terms of an automobile, a reference that's on this document. Do you know what that's from?
A. That would be from a personal e-mail of mine for a car club I belong to.
Q. That's 0355 right here, RROC
A. Yes.
Q. -- Ashville?
Does that have anything to do with your business?
A. Absolutely not.
Q. Does that support your statement that you believe this information was retrieved from your office computer?
A. My computer or someone had access to my e-mails.
Q. Did you give people access to your e-mail?
A. No, but they could have possibly known my password
Q. I'm not asking what possible.
A. Okay.
Q. I'm asking did you give access to anybody else
A. No.
Q. -- in your
A. I never.
Q. All right.
Now, did you ever willfully not pay Rose any overtime?
MR. IRELAND: Objection. Legal conclusion.
THE COURT: Objection sustained.
Rephrase the question.
BY MR. SMITH:
Q. Did you ever decide that even though Ms. Wiseman was owed overtime not to pay it?
A. No.
Q. Did you ever know that -- did you ever know that you owed Ms. Wiseman overtime and then just said, I don't care, I don't want -- I'm just not going to pay it?
A. No, never did.
MR. SMITH: That's all I have.
THE COURT: Okay.
Mr. Ireland?
MR. IRELAND: Thank you, your Honor. I have very few questions.
REDIRECT EXAMINATION
BY MR. IRELAND:
Q. Regarding the last area of questions, the questions about the movies, you weren't there when Ms. Wiseman was viewing those movies, correct?
A. Not if it was at her home in her personal computer.
Q. Were the times that she had the movies times that were on the clock or off the clock?
A. I'm not seeing that file and the time at this moment. There is quite a few movies.
Q. And there were quite a few that were off the clock. I went through it in front of you. You agree?
A. Well, everything when you said before that were -- I'm sorry.
THE COURT: Yeah
THE WITNESS: Okay. I'm catching myself here.
THE COURT: Thank you.
BY THE WITNESS:
A. I don't know, but -- if they were on the clock. But supposedly all that -- all those files were things that she did for me on my time and now there's things -- this is what I was told. Here's all your evidence of what she did.
BY MR. IRELAND:
Q. Mr. Henning
THE COURT: Yeah.
BY THE WITNESS:
A. Okay. I'm just trying to
BY MR. IRELAND:
Q. I asked you if when you heard Rose on the stand and I put timesheets next to the PDF files and compared the on-the-clock time and the off-the-clock time, that the first page was all off the clock, the second page was off the clock. I found one section for one date that was on the clock and we acknowledged that.
Do you remember that?
A. I remember that, but not specifically each image compared to what time at this moment.
Q. I understand. I'm trying to move along here.
A. Okay. Me, too.
Q. So, you weren't there watching her watch the movies, correct?
A. No.
Q. So, you don't know whether or not she had a work purpose or a not work purpose, correct?
A. Well, yes, I don't know.
Q. Okay.
A-1299. In this box, it reads working on patent. Do you see that?
A. Yes.
Q. You agree that Ms. Wiseman worked on patents for products that you had?
A. Yes.
Q. Okay.
And this is around the dates that -- some of the movies that were described. I think they were July 8th or 9th and she marks it down not -- well, she marks it for three days. Are you aware if people use YouTube videos to learn how to do things they don't know how to do?
A. There's a multitude of things, yes.
Q. Okay.
And Rosemarie Wiseman's not a patent attorney, right? A. No.
Q. So, could she have gone to YouTube, downloaded how to do a patent so she could learn how to do patents for you?
MR. SMITH: Objection, your Honor. Speculation.
THE COURT: Can I hear the question, again? I'm sorry.
(Record read.)
THE COURT: Sustained.
BY MR. IRELAND:
Q. What process did she use to learn how to make patents?
A. We had a subscription to Legal Zoom.
Q. Okay.
Is that the only thing she used?
A. I believe so.
Q. How do you know that?
A. Well, it's what she was working on in my office, and we signed up for Legal Zoom.
Q. Okay.
And that's the only place she worked on the patent?
A. I believe so.
Q. While we've got it on the screen, let's talk about the Excel spreadsheet and Exhibit B-31, the 91 hours from 8-4.
Counsel, once again, put this on the screen and did the math for this particular shortage, right?
A. Yes.
Q. Okay.
And when I put it on the screen, I asked you about whether or not you checked the math, and I believe your answer was not quite the same. I don't believe you said that you did the math for this, right?
A. I trusted her math to be correct
Q. Okay.
A. -- yes.
Q. But you didn't pay the number on the sheet. You paid less, correct?
A. I instructed payroll or Paychex to pay whatever was on that check or what was her total.
Q. And the total was not 85, which is what the paycheck is for, correct?
A. Correct. I'm trying to add up the numbers. I don't think the numbers in her category were correct either, right?
Q. Counsel - excuse me.
Mr. Henning, I was simply trying to elicit from you that when I showed you this document, you did not claim it was a math error or was anything related to adding it up. And when counsel questioned you, he did the math and you agreed that that was the basis for your not paying all the hours that are on the timesheet.
Remember that?
A. Right now I'm seeing 91.5 hours I would have called in.
Q. But you paid 85?
A. Somehow 85 got on that check.
Q. Again
A. We
Q. -- Pay-
A. Yes.
Q. Paychex made a mistake?
A. Yes.
MR. SMITH: Objection. Asked and answered. We've gone over this, your Honor.
THE COURT: Overruled.
BY MR. IRELAND:
Q. But Mr. Smith didn't do the math including all the notations from the same pay period, correct?
A. I guess, because we go by
Q. Sir
A. -- hours put on.
Q. -- I didn't ask you for more. I asked if he went over it. Did he go over it?
A. He went over the calculations, I guess, yes.
Q. Again, sir, did he go over this?
A. No. He went over the sheet I was handed from Rosemarie.
Q. And there's no "in" indicating you received this, correct?
A. Well, I obviously maybe did, but maybe that was one that she called me in on -- on the phone, right? And gave me the 86 hours that I put in.
Q. Exhibit K
MR. IRELAND: K, right?
MR. SMITH: K.
BY MR. IRELAND:
Q. Exhibit K, you got a lot of questions about this and a lot of very kind of loose language of cleanup, cleanup, cleanup. This is a journal that was created after Cary received wages through Rosemarie's paycheck, correct?
A. Correct.
Q. Okay.
And Mr. Wiseman only received three checks in his name, and they're submitted in evidence, correct?
A. I believe so. I'm not seeing them.
Q. So, these other entries are basically you backing out what you believed his hours were, correct?
A. Backing out from Rose's sheets where she labeled Cary next to her time, backed all that out of her
Q. So
A. -- timesheets.
Q. So, you say it's from Rose's timesheets and only Rose's timesheets?
A. Sheets that were combined timesheets from the two.
Q. Right.
And that
A. Should have been because there's no check number. It says check unknown. That would mean it was probably on her check and it was backed out.
Q. So, in other words, you looked at Rose's sheet and if it said Cary, you put it on this sheet, correct?
A. Tried to decipher his hours away from hers at the advising of the payroll company.
Q. Sir, I'm asking about the process. So, please answer my question. You testified previously that you took Rose's timesheets and where it said Cary, you put it into -A. Yes.
Q. -- the journal?
A. Yes.
Q. Okay. Thank you.
So, by my vision, 6-9 is the first entry you have for six hours for Mr. Wiseman, correct?
A. If that is the first page.
Q. Are you saying that I don't have the first page?
A. I don't know. I'm just seeing what you have on the screen.
Q. So, you think your counsel produced an incomplete document?
A. No.
Q. So, the first entry -- and you agree this redacted section up here is -- this redacted section up here is a different person, right?
A. Yes.
Q. All right.
And, then, this starts 6-9-17, right?
A. Correct. That's what the date says.
Q. And, then, September 29th, '17?
A. Well, that would -- 6 is June.
Q. Mr. Henning, I'm simply reading the dates and asking you to confirm them?
A. Well, I can't see the other dates.
Q. Oh, I'm sorry. My apologies.
9-29 is directly above my finger, correct?
A. Correct.
Q. And, then, the next one is 10-31?
A. I think that's 10-13.
Q. 10-13? Okay.
But you agree that it's sequential? It starts in June and goes to the end?
A. Correct.
Q. So, the first one is June, correct?
A. Correct.
Q. All right.
This timesheet has Cary's name in February of 2017 and you don't have that in the payroll journal, do you?
MR. SMITH: I'm sorry, what are we looking at? Which number?
MR. IRELAND: 1297-A.
(Brief pause.)
BY MR. IRELAND:
Q. Mr. Henning, I'm asking you
A. That one is different than every other one because it's next to the 7:30 in the morning with Cary. The rest of them are always to the right. If it says Cary. And, then, also Cary was sick through that time and someone was off sick on Thursday, the March 2nd. So, does that mean that Cary was sick on Monday and Tuesday or did Cary come in sick with her? I don't know what that means.
Q. But your first entry is in June, correct?
A. Going back to that time, that might have been the one time that she ever went ahead and brought him in. I don't know. Q. I didn't ask that, sir.
A. That's the one I see there is in June. I did print out a complete list from payroll company after everything was backed out for the whole year.
Q. Cary's name appears there in February 27th, correct?
A. Sick. So, obviously he wasn't working.
Q. Mr. Henning, answer my question, please, sir.
A. With Cary.
Q. It says, with Cary, correct?
A. Right.
Q. And with Cary appears there?
A. Yes.
Q. And Cary appears there?
A. Yes.
Q. And Cary appears there?
A. Yes.
Q. You testified that you didn't pay attention to the dates of the e-mails, all you cared about was the substance, right? A. I always look at the title and see if it's something I need to answer or not. That's what I look at.
Q. So, the only thing you look at is the title, you don't look at the substance. You just look at the title?
MR. SMITH: Objection. Argumentative.
THE COURT: Overruled.
BY THE WITNESS:
A. You always look at the subject matter before you open an e-mail and see what it's about or if you're going to read it. BY MR. IRELAND:
Q. Right.
And when your attorney was asking you questions, you said you never paid attention to the times -- never -- and the only thing you looked at was the substance.
Do you remember that?
A. I go to the substance. I don't focus on when they came in. You are correct.
Q. Right.
Plaintiff's Exhibit 1. Do you remember seeing this, Mr. Henning?
A. Yes.
Q. The substance of this talks about Mrs. Wiseman working nine hours on a Saturday morning; does it not?
A. It says, I have been awake since 1:00 a.m., outside of writing this to you.
Q. I have spent all of these hours working on Amazon listings, correct?
A. What hours? These.
Q. 1:00 a.m. to 10:00 p.m. -- or 10:00 a.m. Nine hours of work.
So, the question is: The substance of this says that she worked from home on Amazon listings on a Saturday morning for nine hours. That's the substance?
A. Well, that's part of the substance, I guess, if you read this whole thing.
Q. You're right.
And, then, the next substance says that she did 400 listings and talks about prompt service, correct?
A. That's -- this is what she's saying, yes -- she's writing. Q. Right.
And the substance of the e-mail from your sole employee that wrote, please read, in the subject line, which you say you read, the substance is that she said she did 400 new listings as of February 2017, correct?
A. Correct. And we only have 111 products
Q. I
A. -- online.
Q. I'm asking you if that's the substance, sir. I'm not asking you to
A. Yes, that's the substance, I guess, if you
Q. Thank you very much.
A. -- read this whole thing.
Q. The substance of the middle paragraph is that she does hours and hours of work at home, correct?
A. Which she submitted to me; I paid.
Q. Sir, the substance says that she did hours and hours?
A. This is what she's saying.
Q. Thank you.
MR. IRELAND: No further questions.
MR. SMITH: If I may, your Honor.
RECROSS EXAMINATION
BY MR. SMITH:
Q. So, Scott, in that last document that counsel showed you, this e-mail that was drafted by Mrs. Wiseman, does it show anywhere in that e-mail at all what she worked on, which product?
A. No.
Q. Are you able to make any determination as to how long she worked on any of the individual products?
A. No.
Q. Are you able to make a determination that -- whether or not she worked on the product -- worked on these products without a break?
A. No.
Q. Do you know if she started one product, worked on another one, moved from that product, went back to another product, anything at all that would tell you the amount of time and overtime that she worked?
A. No.
Q. Are you able to determine from this document the dollar amount of overtime that she would be entitled to?
A. No.
Q. Now, counsel asked you questions about the trademark research.
THE COURT: The patent, I believe. I think it was patent.
MR. SMITH: I'm sorry. Thank you, your Honor.
BY MR. SMITH:
Q. The patent work that you did. Do you remember that?
A. Yes.
Q. And he showed you the page with that little gray box that refers to patent work. Let me find it. 1299.
MR. SMITH: Thank you.
BY MR. SMITH:
Q. So, this is 1299. Let me make it big.
Up until this lawsuit, you never saw that page, correct?
A. No.
Q. Correct?
A. No, I did not see that page.
Q. You have to say correct.
A. Correct.
Q. What you saw and what Ms. Wiseman submitted was this document, the timesheet?
A. Correct.
Q. Without my blue calculations on it?
A. Correct.
Q. Is there any way at all that you could tell from the document that Ms. Wiseman submitted to you that she was working on patent?
A. No.
MR. SMITH: That's all I have. Thank you.
THE COURT: Thank you.
Anything further?
MR. IRELAND: Just one or two questions, your Honor. THE COURT: Please.
FURTHER REDIRECT EXAMINATION
BY MR. IRELAND:
Q. Mr. Henning, I was asking you about the patent to establish the reason why she might have been watching movies. Would you agree that was my questions?
A. That was your questions.
MR. SMITH: Hold on. I'm going to object to the form of the question.
THE COURT: Sustained.
BY MR. IRELAND:
Q. My questions -- I asked you a bunch of questions about people watching YouTube videos to learn how to do things, right?
A. Yes.
Q. Okay.
And I indicated that this patent entry was in the adjacent time period to the movies, correct?
A. This was what you told me.
Q. The documents don't support that?
MR. SMITH: Objection.
THE COURT: Overruled.
BY THE WITNESS:
A. I have to compare the documents to see the timesheet and that document and date next to each other for me to see it.
MR. IRELAND: Just a minute, your Honor.
THE WITNESS: It still won't prove that movies
THE COURT: Look
THE WITNESS: Oh.
THE COURT: -- we've talked about this. There's no question pending, sir. Please.
(Brief pause.)
MR. IRELAND: 375 from document -- I'm sorry, Exhibit
5, your Honor.
BY MR. IRELAND:
Q. Here's some of the MOVs. The date is 7-9, correct?
A. Correct.
Q. Back to Exhibit A-1299. 7-9 is right here (indicating) on a Saturday; would you agree?
A. Yes. And it looks like I paid the hours for that.
Q. Mr. Henning, did I ask you if you paid the hours?
A. Well, okay. I'm just looking at your information you're providing.
Q. Mr. Henning.
So, these movies could be related to the patent work, correct?
MR. SMITH: Objection. Speculation.
THE COURT: The question is, do you know if they are? BY MR. IRELAND:
Q. Do you know if they are related to the patent work?
A. No.
Q. And who would know that?
A. The person looking at the videos
MR. SMITH: Objection.
BY THE WITNESS:
A. -- could verify.
THE COURT: Sustained.
MR. IRELAND: My apologies, your Honor.
No further questions.
(End of excerpt.)
* * * * *
I certify that the foregoing is a correct excerpt from the record of proceedings in the above-entitled matter.
Joseph Rickhoff December 6, 2022
Official Court Reporter