My name is Peter Lindner. I am introducing a measure to have IBM follow the US laws and provide computer readable documents in EEOC (Employment Discrimination) suits.
Getting Computer Searchable Documents is Important
I was an IBM employee for ten (10) years, and when I tried to get my personnel file and email concerning employment discrimination, IBM not only refused to give it to me as a computer readable file, but also then had intent to deceive the Court (a criminal misdemeanor in Courts in NY State). The relevant law is FRCP 26 (as revised by the US Supreme Court in December 2006) that Electronically Stored Information (ESI) must be turned over to the other side in advance of "discovery." FRCP stands for the Federal Rules of Civil Procedure. Clearly IBM and its lawyers Jackson Lewis (who on their website proclaim their expertise is on ESI) understand that it's valuable to have information that is computer readable. In fact: IBM's entire business is based on the idea that when you have information in a computer, you can process it. Instead, IBM took their computer information, and printed it on paper, and gave me either the paper or PDFs (Portable Document Format), so that I was unable to do a computer search on the documents.
I am asking IBM and the IBM Shareholders to make sure that IBM never does this again: any computer readable document should be given to the person unchanged (also called "native format") if they want it, so that that person can use a computer to process it.
If IBM does not obey the 3 year old US Law on turning over information in computer readable form, then what company will do so?
I also have a suit against American Express in the SDNY, and Amex did not turn over their emails except on paper. So, what is admittedly a small sample of two companies, it is clear that the biggest computer company the USA (IBM) and a 150 year old multinational company (Amex) pretend as if turning over paper is equivalent to turning over computer readable files. In my opinion not only as a layman, but as a computer professional of over 20 years with 2 degrees from MIT (one of which is a Master's in Managment Information Systems), it is unconscionable for IBM to not give evidence as the law requires, and to change it from email, spreadsheets, and Microsoft Word (all 3 are called "native format") documents into plain paper, and act as if we're in the 1950's instead of in 2010.
This is obstructionism or worse.
IBM should be a role model in following the law FRCP 26 on evidence, especially for EEOC (Equal Employment Opportunity Commission on discrimination law suits) and on "The Sedona Conference" which is an organization to promote the wise use of computers and searches for large amounts of legal documents in the USA.
IBM either concealed, overlooked or deliberately destroyed evidence
In June 2009, IBM certified to the SDNY (Southern District of New York) that they had turned over all relevant emails to me. Yet I alerted them a week later that they omitted one in particular where an IBM’er confirmed to me that my prospective employer talked to IBM about hiring me. This is quite relevant since IBM denied (for a variety of reasons)that IBM had messed up my chances with prospective employers, and this email clearly showed Wunderman had talked to IBM about me.
I brought that to IBM’s attention so that they could
• Alert the federal judge that they had mistakenly informed His Honor that all relevant email was turned over
• IBM could then do a complete search of that IBMer’s hard drive, and figure out why IBM did not turn over that email in discovery.
Instead IBM stonewalled me, which is a violation of NY Judiciary Law §487, which makes is a criminal misdemeanor for an attorney to have intent to deceive the Court in any Court in NY State. And (although I am not a lawyer), I believe it is also a federal crime in the Southern District of New York under local rule 1.5(b)(5), which incorporates all NY State laws for attorneys to apply to the SDNY.
Tampering with Witnesses
Moreover, IBM’s attorneys in JacksonLewis told me that I could get third party subpoenas (such as the telephone company, to show that IBM and the recruitment people – head hunters – did speak about employing me). When I wrote the various witnesses asking for their cooperation in advance before getting subpoenas, IBM wrote me the next morning asking who I sent the letter to; I told them it was an email and that the list of people was in the email header.
Not 12 hours later, IBM wrote to all of my witnesses and notified them that they were under no legal compulsion to turn over documents to me.
I am not a lawyer, but to me this is a violation of 18 USC §1512 (b), tampering with witnesses.
(Section (a) deals with threats to kill witnesses, and section (b) deals with attempting to influence witnesses to delay production of documents or evidence.)
IBM claimed (as was related to me by a US Marshal who looked into this) that IBM was merely telling all of my witnesses a a judge's ruling that I could not get a subpoena. This, again, is a violation of the 18 USC §1512 (b), which in subsection (e) only allows one side to tell the witnesses to tell the truth; here's a lawyer's commentary on that part of the law:
"Subsection (e) provides:
- (e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole
intention was to encourage, induce, or cause the other person to testify truthfully.
Subsection (e) makes purity of intent a defense. Mere professions of innocent intent, however, obviously do not confer immunity. Whether the “sole intention” of the actor’s conduct was to promote truthful testimony is a question of fact, and one to which the surrounding circumstances and the actor’s methods may be relevant.”
See the context here.
[the lawyer's commentary is dated Monday, February 06, 2006]
So, what we have here is that IBM not only failed to turn over documents, but also hindered and delayed me from getting the cooperation of witnesses, and did so in violation of both 18 USC §1512 (b) and 18 USC §1512 (e).
I add that I spoke to two of the witnessesses who clearly were influenced by IBM's possible monetary effect on them, and
- One was a headhunter (recruitment specialist) who had no placements in about a half a year
- The other was a highly paid consultant whose company might lose IBM's contracts if they testified in my behalf: he/she said he/she was relieved that IBM's letter let him/her out of the dilemma of having to respond to my request.
Someone further interfered with getting information
I then spoke to the Chief Judge of the SDNY, and Her Honor said I should write Her Honor the details. So, when a motion came where it summarized what happened, I sent Her Honor a copy. The rules of the SDNY (Southern District of NY) say that I cannot give a document directly to a judge, but must go through the Pro Se Office. A few weeks later, I called the Chief Judge, and Her Honor had not received it. (Actually, I never spoke to Her Honor, but to Her Honor's clerks in Her Honor's chambers; this is the protocol in not having "ex parte" communications with a Judge.) This time, I sent it again, with a note that it is vital for the Chief Judge to get it; and it was returned with a cover letter from the Pro Se Office that there was no need to have the Chief Judge involved, since that judge was only concerned with budgets and such. This is not true: the Chief Judge is also in charge of Attorney Grievances. A number of days after I got that letter, my first letter to the chief judge came back to me via the mail.
This, again, is a crime under The Tampering with Witnesses law, and is punishable by up to twenty (20) years imprisonment.
18 USC §1512 (b)(3) specifically makes it a crime for anyone to delay or hinder the communication to a federal judge about a possible federal crime. I did not know that at the time, since I just thought the Pro Se Office was being a pain in the neck; now it turns out, that the Pro Se Office either on its own, or with the assistance of someone in the Court (e.g. IBM, or the clerks or even the Judge himself), did knowingly delay my communication to a federal judge about a possible federal crime, namely witness tampering by IBM in June 2009.
Summary
To summarize, IBM violated the laws on turning over emails and other electronically stored information which have been in place since December 1, 2006. When I pointed out to IBM that a critical email related to my suit that IBM influenced my possible employment to Wunderman Ad Agency, in that the IBMer specifically said the woman at Wunderman spoke to him about hiring me, IBM did not correct their assertion to the Federal Judge that all relevant email was turned over, and did not check whether that email was on that person's computer, and why did IBM's search for relevant emails not turn it up: was it destroyed, erased, overlooked, hidden, or tampered with in violation of laws and of IBM's assurances that all normal document retention procedures would be waived so that documents would not be inadvertently destroyed. IBM first gave me (Peter Lindner in my lawsuit Peter Lindner v IBM and Heather Christo, Bob Vanderheyden, et al, 06cv4751 in the SDNY) permission to get third party subpoenas, but when I did so, IBM's attorneys at JacksonLewis violated the discovery protocol and pre-emptively wrote the witnesses in effect that they could not cooperate with me without fear of legal repercussions. Finally, IBM or indeed someone at the SDNY Court did hinder or delay my communication to the SDNY Chief Judge in violation of 18 USC §1512 (b) (3), which protects communications from hindrance or delay between a person and a Judge pertaining to a possible federal crime.
But let's get to first things first: IBM should obey the law on email and turn over all such documents in electronically stored information (ESI) form, because
- it is the Law of the Land since December 2006, approved and promulgated by the US Supreme Court under FRCP 26
- it is the right thing to do, for a computer company who surely knows the value of computer readable material to turn over computerized documents as ESI "native format" rather than hinder the discovery process by turning it over on paper (or withholding documents entirely without reason).
I, Peter Lindner, as an IBM shareholder of more than $2,000 worth of IBM stock (approximately $10k), wish IBM to join me in following the law. I was an IBM employee of ten years when IBM laid me off in August 2003.
The US law says companies can not discriminate on the basis of race or religion, and IBM's Code of Conduct repeats that IBM will not discriminate on the basis of race or religion. Similarly, IBM as the USA's pre-eminent computer company should affirm that IBM will also follow the US law, and give all EEOC documents in computer-readable format, as per FRCP26, and to make it a little more exact, to follow the sample 2-page form from the Southern District of NY, which lays it out clearly in December 2009 what personnel files and ESI mean.
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