The 20 documents which comprise my 152 page (denied) appeal

I wrote a 150 page appeal to the US Second Circuit Court of Appeals. It was rushed, but it got accepted in 1 day, but was denied by the Judges two days later. The goal was to get a temporary stay of the rushed proceedings which stopped me from deposing the people I was suing ("named defendants") and to allow me to continue discovery, and to instruct the lower court judge to look into my Witness Tampering allegation.

The amazingly bad thing is where I was not permitted to depose people until I was first deposed (July 8, 2009), and then all depositions were closed on Fri July 31, 2009. Even the "named defendants" Bob and Heather were not deposed though I had asked IBM for assurances that I could, and they said "sure" as long as I was deposed first. I even asked IBM's lawyer Kevin Lauri of JacksonLewis on Wed July 29 about getting those two IBM'ers deposed, and he refused to give me a date when I could depose them (e.g. Thu/Fri Jul 30-31 would have worked). In fact, Kevin said "our settlement conference is on August 6, which might end this case, so I won't give you dates for the depositions until after Aug. 6" . That's bad faith, since Kevin said on July 31 that it was too late to depose anyone, and on Aug 6, he refused (again) to even answer when I talked to him after the Settlement Conference. There oughta be a law against that....

And I felt IBM did some witness tampering (details upon request), but IBM would not comment on their motives for contacting all of my witnesses and giving not just the lawyer's view on whether the witnesses could talk to me, but "IBM's opinion" (I note that IBM is not a law firm, and even if it were, as far as I know, it is illegal to give legal advice to people who may already have lawyers -- conflict of interest).

Such is life.

But I present here the document, with an index below, that hopefully is hyperlinked in a good way (right now, I'm a newbie, and it's kinda cumbersome).

The juicy parts are #2 and #11.

I asked Magistrate Judge Eaton's chamber to put the "IBM lied" document #11 on Pacer to give to the NY Times, and the clerks said "Sure, just send a clean copy without fax marks," which I then did by overnight fedex. However, when it was not online after a week, I asked what was wrong, and the Judge's clerks said I should do it myself (put it on Pacer by myself, which I can't do -- Pacer is the Public Access to Courts Electronic Retrieval). They said people can get it by coming to the Court House and photocopying it. That's hardly electronic. I wonder what made MJ Eaton change his mind?

I have an version that's in color in Excel, but I couldn't get it to work right.

Documents which made up my (denied) appeal:

1. T 1080

2. 20 page Appeal for a Temporary Stay and a Writ of Mandamus

3. This index

4. Scholarly article on 18 USC§1512 Witness Tampering

5. MJ Eaton Standing Order for Settlement - November 3rd, 2008 & 10/31/2005

6. Document #67 Nov 12, 2008 Order of USDJ Sullivan on depositions (signed 11/11/2008)

7. Exhibit B1 in full: IBM June 5, 2009 Response to Motion to Compel IBM to produce emails 20 pages

8. June 10, 2009 Letter with proposed agreements of Lauri on third party subpoenas

9. Document #79 USDJ Sullivan order of 6/16 or 6/18/2009

10. Document #77 MJ Eaton order of June 16, 2009 with Discovery ending of July 31, 2009

11. Appendix E: Lindner letter of June 17, 2009 on witness tampering: "IBM Lied" 21 pages

12. Document #80 MJ Eaton Memo + Order of 6/18/2009

13. Cover Letter to SDNY Chief Judge Preska 7/2/2009

14. Plaintiff affidavit of 7/9/2009 10 pages

15. 7/10/2009 Lindner reply to IBM Response to Motion to Compel 20 pages

16. 7/13/2009 Lindner letter asking intent for alleged witness tampering

17. MJ Eaton order #96 of 7/23/2009 affirming order of 6/16/2009 for 7/31/09 deadline

18. MJ Eaton Standing Order on Discovery Disputes 7/29/2008; revised 5/7/08

19. 2nd Affidavit for Extension of Discovery 7/31/09

20. Document 98 USDJ Order of Aug 5, 2009

21. Motion Information Statement

22. Affirmation of Service to Second Circuit Court of Appeals

US Court of Appeals rejects a temporary stay

Well, I'm nothing if not persistent. I was upset that IBM deliberately stopped me from deposing the "named defendants" (Heather & Bob) in my case against them, even though they were ordered by the USDJ Sullivan [item 7(c)(ii) on Nov 12, 2008] and that IBM agreed to that after I was deposed, but when I asked them make "Heather and Bob" available, IBM refused.

So, I asked the US Second Circuit Court of Appeals to stay the end of discovery so that this could be done. Those judges rejected my appeal. Oh, did I say a lawyer pal of mine said I had a 1% chance the Court of Appeals would agree with me.

Would IBM try to blackmail me, in addition to witness tampering?

Gee, (or more specifically, Golly Gee), would an upright firm such as IBM attempt to violate 18 U.S.C. § 1512 on witness tampering? That means, would IBM try to contact all of my witnesses in an attempt to influence them to delay testimony or withhold records? I think so. But when I asked IBM what their intent on writing my witnesses, IBM refused to answer.

And IBM deposed me under oath, and asked me questions about my, how shall I phrase this, about my nether regions. (Hey, this is a PG-13 rated blog.) That's mean. And worse: they made me sign a document about keeping things secret, and that same year, they break the secrecy with me under oath. Sort of liking trying to get answers so that they can blackmail me with it later.

Say it ain't so, IBM.

But, specifically IBM, say it ain't so by providing the reason Kevin Lauri of Jackson Lewis, partner in NYC, asked those three (plus) questions on what I would hope would be off-limit questions.

IBM tries to intimidate witnesses from providing information

In a stunning development, IBM violated the rules of Magistrate Judge Eaton, possibly by having an ex parte communication with him, and having MJ Eaton write an opinion ordering no new subpoenas just hours after getting my request to delay for 3 weeks writing a response to IBM's ludicrous assertion that IBM has no information on computers that has not been turned over. I gave IBM an email sent to me by an IBM'er which confirmed that my prospective employer Wunderman had contacted IBM -- it was contemporaneous with the event, namely a few years ago. Thus, IBM had lied to The Court that IBM had turned over all ESI (Electronically Stored Information), since here was a letter from a person in my group at IBM which IBM should have looked for and turned over to me.

I sent my request, which had been preapproved by MJ Eaton, for a 3 week extension while I was making progress in settlement talks with IBM, and I said that IBM agreed that I could get third party subpoenas, e.g. the phone company. After I wrote letters to the various prospective employers, IBM freaked out (that's a technical term) and got the Magistrate Judge to write that no new subpoenas could be issued (of course, this was previously agreed to by IBM, so it would not hold), and then about two hours later, the US District Judge chimed in agreeing with the MJ.

And then IBM, wrote a letter to all of the witnesses telling them that the Magistrate Judge ordered that there are no new subpoenas. IBM also included a redacted copy of the order.

So, it looks like IBM is trying to stop the truth from getting out: that IBM did communicate with a prospective employer of mine, in violation of Title VII of the Civil Rights Act of 1964 which prohibits retaliation upon a current or former employee, especially since IBM said that the event did not happen and that there is no proof that the employer Wunderman and Associates did talk to IBM. Wunderman is now owned by WPP-USA. And the IBM'er said that Cathy Cooper of Wunderman came to him for a reference, but he said good things. IBM asserted that Ms. Cooper did not communicate with IBM, and that no email or documents have information (e.g. phone logs).

Well, I find that pretty offensive for IBM to try to not only intimidate me from filing a suit, and not cooperating with the federal rules on discovery (FRCP 26 on providing ESI before the case begins), but also to try to intimidate its vendors: Ad companies, Headhunters, small tech companies.

So, I filed a shareholder proposal on the SEC website as a shareholder of more than $2,000 worth of IBM stock.

COMPANY: INTERNATIONAL BUSINESS MACHINES CORP
FORM TYPE: PREC14A
NUMBER OF DOCUMENTS: 1
RECEIVED DATE: 16-Jun-2009 19:04
ACCEPTED DATE: 16-Jun-2009 19:04
TEST FILING: NO
CONFIRMING COPY: YES
ACCESSION NUMBER: 0001394849-09-000021
FILE NUMBER(S): 1. 001-02360

In it, I write the following:

"This proposal is directly related to an incident that stemmed from Mr. Lindner being laid off in 2003. That was resolved. However, Mr. Lindner alleged that IBM had spoken to a prospective employer, and in violation of Title VII of the US Civil Rights Act of 1964, and in violation of the laws of NY State and NYC, IBM retaliated against Mr. Lindner.

Moreover, when the case 06cv4751 entitled -- Peter W. Lindner v IBM, Robert Vanderheyden, Heather Christo Higgins, John Doe #1, And John Doe #2 -- went to discovery, IBM wrote in a submission to the Magistrate Judge that some of the discovery requests require interviewing 'hundred of thousands of employees'. And IBM suggested that it did not have any ESI (Electronically Stored Information) in all of IBM that was responsive to the discovery request.

(This document is a letter from IBM on June 5, 2009 to Magistrate Judge Eaton, cc: Peter Lindner, and will be posted on this SEC site as a pdf, which requires that it be typed up first as per SEC filing regulations, which Mr. Lindner intends to follow.)

Surely no one in data processing believes that if IBM kept all their records -- as IBM promised -- that there is no record on any of their computers or any of their electronic storage media.

So, this shareholder proposal is to stop IBM from making such absurd statements to a Federal Court.

Furthermore, IBM was apprised the week of June 15 2009 that indeed a single document was found that proved that the prospective employer of Mr. Lindner had spoken to an IBM employee, IBM did not (as of this writing) inform the Court that it spoke wrongly.
To summarize: IBM said it had no ESI, when in fact it did."

I hope all you people who are IBM employees and IBM shareholders vote to stop IBM from discriminating against its employees, and using strong arm tactics to win. Maybe IBM won't win this time.

Peter

IBM responds: they don't know nothing about using no computers

Here it is, another "Saturday night, and I ain't got nobody, I got some money cause I just got paid" [with apologies to Sam Cooke, circa 1964].


Yes, it's Saturday night, and I finished working out at the gym at 9pm, and getting ready to hit the bars, sort of like Sam Cooke. But, using my PC, I'm going perhaps to meet with friends in a gay bar. So, time changes things: Sam Cooke in 2009 would've been able to find someone on a Saturday night. But Sam Cooke, alas, died in 1964. IBM, on the other hand, has lawyers who are thinking that they are stuck in 1964. When I asked for computer files, why IBM and their lawyers told a federal judge that they can not do so, and it would perhaps require interviewing "hundreds of thousands of employees."


So, I took some of my Saturday night time to read IBM's response to me asking for their computer files. Apparently, IBM is not familiar with the IBM PC. Well, I'm being too harsh on IBM: perhaps IBM's lawyers at Jackson Lewis do not know how to use IBM PC's to search data files rather than interview several hundred thousand people to get the information.


Yes: I can also read minds, since you're thinking "IBM would not say that." So here is a clip from their 33 page brief:




















Pretty scary, huh? IBM claims to a Federal Judge that they have to interview 100,000 employees, when all they need to do is ask the phone company for their IBM phone records (which IBM may already have in IBM's possession), and check emails from some key people.

Well, I've asked Kevin Lauri, Esq. from Jackson Lewis (IBM's labor law firm) to confer about settling this suit (he agrees, but IBM does not yet want to counter-offer on a dollar amount), so now I plan to ask Mr. Lauri to confer on getting electronic data from IBM. I guess if IBM can't meet federal laws on providing data for court, then think of all the smaller corporations who will say: "Gee, Judge, IBM can't get such information and doesn't know how, then how can we do it?"

Sarcarstically, and smilingly,

Peter

IBM to respond why they prefer paper to electronic documents

Hi! I'm Peter Lindner, and I have a lawsuit against IBM for retaliating against me after I filed an EEOC complaint.

That case 06cv4751 is in Federal Court, SDNY (Southern District of NY).

Right now, IBM's lawyers are fighting me (that's right as of noon May 29 2009, I'm my own attorney) over what files I can get prior to the jury trial. Specifically, I asked IBM for their files in electronic format, which is a format that IBM is synonymous with. And, you guessed it, IBM does not want to give up their files except in paper form.

A magistrate judge is about to decide this next month, so here's what I wrote (I had a lawyer at the time) and on June 6, 2009, we can see how IBM responds. I wrote this paragraph:

Additionally, this motion is being made to compel that defendant [IBM] provide electronically stored information and further that such information be provided in metadata format. It is clear that the Federal Rules of Civil Procedure require that electronically stored information[ESI] be provided. Under Fed.R.Civ.P. 26(b)(1), parties may obtain discovery regarding any unprivileged matter relevant to the claim or defense of any party, as long as the discovery “appears reasonably calculated to lead to the discovery of admissible evidence.”The discovery of electronically stored information is specifically addressed by Fed.R.Civ.P. 34(a), as amended effective December 1, 2006, which allows a party to request that another party “produce and permit the party making the request ... to inspect, copy, test, or sample any ... electronically stored information.”

The federal judge ordered (on page 3, item 12) IBM and its lawyers Jackson Lewis until Friday, June 5 to respond to the 4 page document on discovery.