Court filing
Exhibit 2 — In re Bank of America California Unemployment Benefits Litigation (Dkt. 614-4, S.D. Cal. No. 3:21-md-02992)
Filed January 8, 2026 in In re Bank of America California Unemployment Benefits Litigation; one of 1415 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of California |
|---|---|
| Filed | 2026-01-08 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 614-4 · 2026-01-08 · Docket on CourtListener
Full text
Exhibit 2
Case 3:21-md-02992-GPC-MSB Document 614-4 Filed 01/08/26 PageID.43703
Page 1 of 43
1
UNITED STATES DISTRICT COURT
2
SOUTHERN DISTRICT OF CALIFORNIA
3
SAN DIEGO DIVISION
- - -
4
IN RE: BANK OF AMERICA : CASE NO.
5
CALIFORNIA UNEMPLOYMENT : 21-MD-02992-GPC-MSB
6
BENEFITS LITIGATION :
7
__________________________
8
9
10
11
Oral deposition of JAY
12
MINNUCCI, taken pursuant to Notice,
13
held at Goodwin Proctor LLP, 3025
14
John F. Kennedy Boulevard, 8th
15
Floor, Philadelphia, Pennsylvania
16
19104, beginning at approximately
17
9:30 a.m., before Mary Hammond, a
18
Certified Shorthand Reporter and
19
Notary Public in the state of
20
Pennsylvania, April 23, 2025.
21
22
23
JOB No. 7288941
24
PAGES 1 - 460
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A-P-P-E-A-R-A-N-C-E-S
2
3
GOODWIN PROCTOR LLP
4
BY: MATTHEW L. RIFFEE, ESQUIRE (Pro Hac Vice)
5
1900 N Street, NW
6
Washington, DC 20036
7
mriffee@goodwinlaw.com
8
Attorneys for Bank of America, N.A.
9
10
ALTSHULER BERZON LLP
11
BY: COLIN JONES, ESQUIRE
12
177 Post Street
13
Suite 300
14
San Francisco, California 94108
cjones@altshulerberzon.com
15
Attorneys for Plaintiffs
16
17
Also Present: Marie MacCune, Esquire
18
19
Present via Zoom: Nghia Jones
20
Caroline Hunsicker
21
Joshua Swigart
22
Connie Chan
23
Ilana Platkiewicz
24
Andrew Verdun
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- - -
2
I-N-D-E-X
3
- - -
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WITNESS:
5
JAY MINNUCCI
6
PAGE
7
BY MR. RIFFEE 9, 455
8
BY MR. JONES 453
9
10
11
12
E-X-H-I-B-I-T-S
13
NUMBER DESCRIPTION PAGE
14
15
Exhibit 1 Jay Minnucci's Expert Report 21
16
Dated 3/4/25
17
Exhibit 2 Jay Minnucci's Expert Report 22
18
Dated 9/29/24
19
Exhibit 3 Jay Minnucci's Expert Report 23
20
Dated 11/21/24
21
Exhibit 4 Bates Number BANA_EDD_MDL_00118438 142
22
Exhibit 5 Bates Number BANA_EDD_MDL2286 156
23
Exhibit 6 Bates Number BANA_EDD_MDL-00154700 162
24
through BANA_EDD_MDL-00154708
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EXHIBITS (Continued)
2
NUMBER DESCRIPTION PAGE
3
4
Exhibit 7 Bates Number BANA_EDD_MDL-719115 166
5
Exhibit 8 Bates Number BANA_EDD_MDL-00014091 172
through BANA_EDD_MDL-00014095
6
Exhibit 9 Employment Development Department 184
7
EDD's Poor Planning and Ineffective
8
Management Left It Unprepared to
9
Assist Californians Unemployed by
COVID-19 Shutdown
10
Exhibit 10 CONTACTABLE THE US CONTACT CENTER 203
11
DECISION-MAKERS GUIDE 2021
12
Exhibit 11 OIG Oversight of the Unemployment 228
Insurance Program
13
Exhibit 12 Bates Number BANA_EDD_MDL-00080294 238
14
through BANA_EDD_MDL-00080352
15
Exhibit 13 Bates Number BANA_EDD_MDL-4198 270
16
Exhibit 14 Bates Number BANA_EDD_MDL-00060339 296
17
Exhibit 15 Bates Number BANA_EDD_MDL-00060337 300
through BANA_EDD_MDL-00060338
18
Exhibit 16 Article Dated 2/15/22 319
19
Exhibit 17 Revisiting Schedule Adherence 323
20
Article
21
Exhibit 18 Bates Number BANA_EDD_MDL-00060129 327
22
through BANA_EDD_MDL-00060143
23
Exhibit 19 Bates Number BANA_EDD_MDL-00106092 353
24
through BANA_EDD_MDL-00106094
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EXHIBITS (Continued)
2
NUMBER DESCRIPTION PAGE
3
4
Exhibit 20 Evaluating the Fit of the Erlang 426
5
A Model in High Traffic Call
6
Centers Article
7
Exhibit 21 What is Erlang, and Why Does It 431
8
Matter? CX Today Article
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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- - -
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P-R-O-C-E-E-D-I-N-G-S
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- - -
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(By agreement of counsel, the
5
reading, signing, sealing,
6
certification and filing are
7
waived, and all objections as to
8
the form of the question, are
9
reserved until the time of trial.)
10
- - -
11
THE VIDEOGRAPHER: Stand by.
12
Good morning. We are going on
13
the record at 9:30 a.m. Eastern
14
Time, on April 23rd, 2025.
15
Please note that the
16
microphones are sensitive and may
17
pick up whispering and private
18
conversations.
19
Please mute your phones at this
20
time. Audio and video recording
21
will continue to take place, unless
22
all parties agree to go off the
23
record.
24
This is Media Unit 1 of the
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video-recorded deposition of
2
Jay Minnucci, in the matter of In Re
3
Bank of America California
4
Unemployment Benefits Litigation
5
filed in the United States District
6
Court Southern District of
7
California San Diego Division, Case
8
Number 21-MD-02992-GPC-MSB. The
9
location of the deposition is
10
Goodwin Proctor LLP, 3025 JFK
11
Boulevard, 8th Floor, Philadelphia,
12
PA 19104.
13
My name is Frankie Matus,
14
representing Veritext Legal
15
Solutions, and I'm the videographer.
16
The court reporter is Mary
17
Hammond, also from the firm of
18
Veritext Legal Solutions.
19
I am not authorized to
20
administer an oath. I am not
21
related to any party in this action,
22
nor am I financially interested in
23
the outcome.
24
Counsel will now state their
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appearances and affiliations for the
2
record.
3
MR. RIFFEE: Matt Riffee from
4
Goodwin Proctor here on behalf of
5
Defendant, Bank of America.
6
MS. MacCUNE: Marie MacCune,
7
Goodwin Proctor, also on behalf of
8
Defendant, Bank of America.
9
MR. JONES: Colin Jones,
10
Altshuler Berzon, on behalf of the
11
Plaintiffs.
12
MR. RIFFEE: All right.
13
Good morning. Before we get --
14
THE COURT REPORTER: I'm
15
sorry.
16
MR. RIFFEE: Okay.
17
THE VIDEOGRAPHER: Will the
18
court reporter please swear in the
19
witness.
20
THE COURT REPORTER: Please
21
raise your right hand.
22
- - -
23
JAY MINNUCCI, after having
24
been first duly sworn, was examined
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and testified as follows:
2
- - -
3
THE WITNESS: Yes.
4
MR. RIFFEE: Good morning.
5
Before we get started, just
6
like I had said, the transcripts
7
will be kept as confidential, and
8
the parties will designate the
9
portions of the transcript that are
10
confidential pursuant to the terms
11
of our Protective Order.
12
- - -
13
DIRECT EXAMINATION
14
- - -
15
BY MR. RIFFEE:
16
Q. Good morning.
17
Can you please state your name for
18
the record?
19
A. Jay Minnucci.
20
Q. Okay.
21
You've been deposed before,
22
correct?
23
A. Correct.
24
Q. How many times?
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A. I think about five, five or six.
2
Q. Okay.
3
Were you serving as an expert in
4
all of those cases?
5
A. Yes.
6
Q. Okay.
7
So I assume you're familiar with --
8
with this exercise and with the ground rules,
9
but we'll just go over a few to refresh.
10
I'll be asking the questions today.
11
You're obligated to give complete truthful
12
answers. I'll ask that you give audible
13
answers, so the court reporter can take it
14
down.
15
You were sworn in earlier; do you
16
understand that you're under oath as if you
17
were in a court of law?
18
A. Correct.
19
Q. Okay.
20
So your answer -- you understand
21
that your answers need to be truthful today?
22
A. Yes.
23
Q. Okay.
24
Is there any reason why you're not
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able to provide truthful answers today?
2
A. No.
3
Q. Okay.
4
If at any point today you don't
5
understand any of my questions, please let me
6
know, I'm happy to clarify that for you.
7
Just to that end, and just one -- or a couple
8
little terminology before we get started.
9
You understand that the Bank of
10
America had several call centers that
11
serviced the EDD prepaid debit card program,
12
correct?
13
A. Correct.
14
Q. When I say the "main call center"
15
today or the -- the "servicing center" today,
16
can we agree that I'm referring to Bank of
17
America's general call center for prepaid
18
cards?
19
A. Yes, the general being of first in
20
line to receive the call from the IBR.
21
Q. Correct. Okay.
22
When I said the "Claims call
23
center," can we agree that I'm referring to
24
Bank of America's call center responsible for
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Q. Okay.
2
In your work at -- at Service
3
Agility in consulting with clients do you
4
conduct forecasting for any of your clients
5
for the hiring or retention of FTEs?
6
A. Yeah, I do that very often for my
7
clients.
8
Q. Did you conduct any forecasting for
9
any of your clients during that March of 2020
10
through the end of 2020 time period?
11
MR. JONES: Objection. Vague.
12
THE WITNESS: Yeah, I helped
13
them with the planning out of
14
staffing needs and what they may
15
need, so that's not just simple
16
forecasting. There's a lot of
17
factors that go into that.
18
But the objective was to get
19
them to the right numbers -- the
20
right staffing numbers to be able to
21
manage their incoming call volume.
22
BY MR. RIFFEE:
23
Q. How many clients would you say you
24
helped plan out staffing needs during that
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time period, March 2020 through the end of
2
2020?
3
A. So it would be the same group that
4
was -- that was part of every discussion.
5
The -- the details were all different, and
6
the amount of detail that I would need to go
7
into was different for each one, but it
8
was -- it was a discussion with everybody.
9
Q. Okay.
10
Does -- do you -- in your work at
11
Service Agility consulting with your clients,
12
do you actually handle the -- the hiring of
13
any Customer Service Representatives for your
14
clients?
15
MR. JONES: Objection. Vague.
16
THE WITNESS: No.
17
BY MR. RIFFEE:
18
Q. Were you ever responsible for
19
conducting background checks or setting up
20
work-from-home environments for -- for your
21
client's Customer Service Representatives?
22
MR. JONES: Objection. Vague.
23
THE WITNESS: I'm sorry, which
24
was the first one?
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they'd probably have the data right at their
2
fingertips, which is, you know, just ongoing
3
results showing what they're ongoing yearly
4
call abandonment rate was, what their ASA
5
was, as well as other metrics as well.
6
Q. All right.
7
But you don't know how many of
8
those call centers provided information prior
9
to the pandemic or during the pandemic for
10
2020?
11
MR. JONES: Objection. Vague.
12
THE WITNESS: Yeah.
13
Again, I don't know these
14
specific people. I just know people
15
that do this work. So, I -- you
16
know, I'm fairly confident I know
17
how they would have answered this.
18
BY MR. RIFFEE:
19
Q. When you do your consulting work
20
for your clients, do you assess their --
21
their ASA or their abandonment rates using
22
the mean average speed to answer or the call
23
abandonment rate from ContactBabel service?
24
MR. JONES: Objection.
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Compound. Vague.
2
THE WITNESS: I can.
3
The first thing I'm going to
4
compare them to is their own
5
targets. That's the one that's
6
going to matter the most.
7
BY MR. RIFFEE:
8
Q. "Their targets" being the SLA or
9
the contractual requirement, correct?
10
A. In an internal call center, you
11
don't have a contractual obligation, but you
12
do still have a target, like, you know, they
13
all have targets.
14
So the first thing I'm going to do
15
is compare them to what they say they want to
16
do because that's the most relevant. When
17
questions are asked about, "how do we compare
18
with others, how does your target compare to
19
what others are doing," that's when I would
20
go to this and say, "Well, this is kind of
21
those sources," and say, "Well, here's -- you
22
know, "here's" -- "here's what I know."
23
Q. So the target for a -- a call
24
center, it could be an internal number, it
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for identification.)
2
- - -
3
(Whereupon, the document was
4
handed to the witness.)
5
- - -
6
BY MR. RIFFEE:
7
Q. Do you recall reviewing this e-mail
8
in preparing your report?
9
A. Yes.
10
Q. Are you offering an opinion about
11
Bank of America's intent or state of mind in
12
making staffing decisions?
13
MR. JONES: Objection. Calls
14
for a legal conclusion.
15
THE WITNESS: I couldn't care
16
less about a state of mind. My
17
interest here is what they do, was
18
it in confidence, or was it
19
deliberate or was it both.
20
MR. RIFFEE: Okay.
21
BY MR. RIFFEE:
22
Q. And the basis for your opinion that
23
Bank of America deliberately staffed or
24
reduced staffing in its call center, it's --
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results are used to calculate Column (E)?
2
A. Okay.
3
So do you want me to start with
4
Appendix H then; is that --
5
Q. Sure.
6
A. Okay.
7
So Appendix H is based on data from
8
other clients that I have. So this is
9
without the actual data from your bank or
10
without data from an actual client, the --
11
the next best thing that we can do is use
12
data from other clients. So that's what this
13
is.
14
I've had clients that have done the
15
process that I described that would have been
16
done for the Bank had we had the data.
17
So they go through that process,
18
and the process requires identifying the
19
abandoned calls for a given time period, and,
20
then, looking at those phone numbers with
21
those abandoned calls, and, then, looking out
22
in the future to determine did that phone
23
number call back or not. If it did, we call
24
it a recall. If they didn't, then, they
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didn't recall.
2
So I've had other clients do that
3
work, and what we did was we mapped the
4
abandonment range against the recall rates
5
that they found, and, then, provide a
6
distinct demand column at the end because
7
that's what we're using. It's just one line
8
is the recall rate. We're actually
9
calculating a recall rate, and, then, simply
10
taking one from it.
11
Q. Okay.
12
How many data points are you using
13
in your regression here in Appendix H?
14
A. So we're going out -- we're
15
probably looking at 30 to 60 days worth of
16
data each for -- my estimate is probably
17
about eight clients that we did this for, so
18
however many data points that adds up to.
19
And, of course, their data points
20
can -- can fall in these different ranges.
21
I've got six different ranges, so they're --
22
they're falling somewhere within those
23
ranges.
24
Q. Okay.
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So eight different clients within
2
these ranges -- within these ranges.
3
Is there a client that you have
4
that falls within each of these ranges?
5
A. Oh I think every one of them had.
6
Q. Okay.
7
A. I shouldn't say that. I would
8
suspect most of them. There may have been
9
one or two that missed a range here or there,
10
that's possible.
11
Q. Okay.
12
There's -- but there's six
13
abandonment ranges here represented --
14
A. Right.
15
Q. -- in Appendix H, right?
16
A. Yes.
17
Q. And you said you think there were
18
eight clients that fall within these
19
abandonment ranges.
20
So, within each range, is it your
21
testimony that there's one to two clients
22
that fall into each range?
23
MR. JONES: Objection.
24
Mischaracterizes testimony.
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THE WITNESS: No.
2
What there likely is in all of
3
these ranges is if not all,
4
certainly eight represented --
5
certainly close to at 7, and, then,
6
they can be represented multiple
7
times.
8
So to provide an example, if
9
you look at the bottom range from 25
10
to 30, there may be data points in
11
there from eight different clients,
12
but one of those clients may have 12
13
data points in there, and another
14
one may have 17 and another one may
15
have four.
16
MR. RIFFEE: Okay.
17
BY MR. RIFFEE:
18
Q. And the data points for each client
19
that -- you said that represents a 30 to
20
60-day period?
21
A. Yes, mm-humm.
22
Q. Do you believe that these -- the
23
data points here, that they're enough data to
24
give you confidence in your results?
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A. Yeah. I actually do this work. I
2
sell -- I sold consulting projects where
3
people have come to me and said, "We have
4
this problem. We don't know what distinct
5
demand is," you know, "we don't know how to
6
get their our data," or don't think that they
7
can get their data.
8
When I explained to them that I
9
have this, we have used this, that's been the
10
job. I've charged for that. And I've had
11
very satisfied clients as -- as a result of
12
using this. It greatly improved their
13
workforce planning process.
14
Q. Are you able to say which clients
15
these data points come from?
16
A. No.
17
Q. What industries are these eight
18
clients in?
19
A. Various.
20
Q. Okay.
21
Sitting here today, what industries
22
do you recall each of them are in?
23
A. So there's, again, more property
24
and casualty, more health insurance. There
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1
years.
2
You don't -- you have to realize
3
the numbers that you see here are bad. You
4
just don't run into a lot of clients that are
5
having days with a 26-percent abandon rate as
6
a regular thing.
7
Q. Mm-humm.
8
A. Maybe occasionally here and there,
9
but it doesn't happen as a regular thing. So
10
it -- it's just not something that comes up
11
often in a consultant's work, because it just
12
doesn't happen out there in the field very
13
often, so it takes a while to -- to actually
14
get some clients that fall into these
15
categories.
16
Q. Okay.
17
So you said you began collecting
18
this data -- I think you said going back to
19
2005, and it covered about eight years.
20
So is this all data from about to
21
2005 or 2018 or something more recent?
22
A. No, that'd be -- that would be
23
about right. I don't think I've added to it.
24
However, I've used it. I've used it during
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that time, and I've used it past that and
2
into COVID. I don't think I've used it in
3
the last year or year and a half, but, you
4
know, I've used -- I've used this up until at
5
least 2022, if not later.
6
Q. Okay.
7
Did any of these eight clients
8
experience call volume increases or surges
9
during these three 30 to 60-day periods
10
similar to the 10, 15, 20, 30 X surges that
11
Bank of America experienced during the --
12
during the pandemic?
13
MR. JONES: Objection. Vague.
14
THE WITNESS: You know, so
15
they're my clients, so I've
16
answered your question before,
17
beside which I don't know that it
18
would matter if it was volume surge
19
or not. We're interested in
20
abandonment and recall rates.
21
BY MR. RIFFEE:
22
Q. You don't think it would matter,
23
the level of the volume surge, in terms of
24
the -- the impact on the abandonment rate?
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A. Well, it will cause -- it will
2
potentially cause an increase in abandonment,
3
but at that point we're simply taking data
4
points out. We're looking at abandonment
5
ranges and we're comparing them to recall
6
rates. Whether the -- the abandonment was
7
caused by volume surge or people left the
8
organization is immaterial to the analysis.
9
Q. Did any of your clients -- any of
10
these eight clients experience an abandonment
11
rate above the ranges here, the 25.01 to
12
30-percent range?
13
A. So I -- that is possible, but it --
14
it's not on here because there weren't enough
15
of them. So, you know, was there two or
16
three incidences or four or five, that's
17
possible, but I wouldn't have included that
18
in the data. In this case, it would have to
19
be more than that.
20
Q. Okay.
21
How many data points did you
22
require to -- or to include or for -- for
23
this Appendix H, how -- how many data points
24
would be within each abandonment range
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individual calls about a power outage, and
2
they're unable to reach but their power gets
3
turned back on, or they realize that someone
4
else is reporting an outage, so they don't
5
need to call again, did you assess whether
6
that may affect a recall rate for that type
7
of call center?
8
A. No.
9
Again, no reason to do that.
10
Everything's in the data.
11
Q. Did you attempt to assess how the
12
differences between various types of call
13
centers or purposes of calls might impact the
14
recall rate, and how that might differ from
15
the recall rate for someone attempting to
16
submit or ask questions about an unauthorized
17
transaction claim?
18
A. No.
19
What I know is despite the fact
20
that it's different industries, the recall
21
rates really don't change all that much
22
surprisingly. And, then, having used this
23
for other clients and seeing that it's worked
24
well for them, you know, I know that it's
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1
certainly good enough to be using for
2
workforce planning purposes and provides a
3
substantial improvement over using just calls
4
offered or just calls answered, which, by the
5
way, both of them inherent to them have a
6
recall rate associated with them.
7
Calls offered assumes a
8
zero-percent recall rate. Calls answered
9
assumes a 100-percent recall rate, and we
10
know both of those numbers are wrong.
11
Q. Based on Appendix H and the ranges
12
that you provided, the number of these eight
13
clients had periods where their -- where
14
their abandonment rate exceeded the
15
6.1-percent average in the ContactBabel
16
survey, right?
17
A. Oh, sure, yeah.
18
In order to get data in those
19
ranges, yeah.
20
Q. Is it your opinion that those call
21
centers, your -- your former clients, were in
22
violation of industry best practices during
23
those periods?
24
A. Violation of industry best
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1
BY MR. RIFFEE:
2
Q. And did you review the Bank's --
3
the actual calls received by the Bank to
4
determine whether or not that issue was --
5
was offset by other factors?
6
MR. JONES: Objection. Vague.
7
BY MR. RIFFEE:
8
Q. That issue with the Erlang-C
9
formula that's offset by other factors.
10
A. I -- I -- I just -- I just know
11
that it's offset by other factors, whether
12
it's the Bank or -- or any other call center.
13
Q. Have you advised any of your
14
clients to use an Erlang-C formula?
15
A. Absolutely. It's -- it's almost --
16
it really is assumed -- I don't have to say
17
it, if they're using a workforce management
18
system, they're -- they're using it, or a
19
slightly modified version of it.
20
If they're using a calculator, it's
21
Erlang-C. If they're using an add-in to
22
Excel, it's Erlang-C. It is the standard
23
beyond question in -- in any call center that
24
does this type of work. It's a few smaller
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- - -
2
C-E-R-T-I-F-I-C-A-T-I-O-N
3
- - -
4
I hereby certify that the
5
witness was duly sworn in for this
6
deposition matter by the Court
7
Reporter.
8
9
10
11
<%1471,Signature%>
12
Mary Hammond
13
April 23, 2025
14
15
(The foregoing certification of
16
this transcript does not apply to
17
any reproduction of the same by any
18
means, unless under the direct
19
control and/or supervision of the
20
Certified Shorthand Reporter.)
21
22
23
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