Depositions are usually pretty mild. But, sometimes they include some drama. Jonathan Langley sued IBM for age discrimination. He alleged that a reduction in force was used to pare the number of older workers. At his deposition, he relied in part on some documents given him by current employees of IBM. These documents included slides from a “high level” presentation made to decision makers. During his deposition, he was asked to provide the names of the employees who leaked the documents. Mr. Langley refused to provide names, knowing they would be subject to reprisal.

IBM then filed a motion to compel his answer to that question. It also sought sanctions against the employee for refusing to answer the question. The employer argued that knowing the source of the information was essential to its defenses. IBM argued that it was important to know if the leakers uttered the information themselves. The Court rejected that argument., The court noted that IBM did not contest the authenticity of the documents. It found that IBM could easily find out who wrote the slides if it wished. The court saw no relevance of the identity of the leakers to any defense.

In conclusion, the court noted that IBM was on “thin ice” already due to discovery issues. IBM, said the court, had not cooperated fully during discovery. The employer also could have contacted the plaintiff lawyer prior to the deposition, noting that it would ask for the identity of the leakers. Instead, the employer waited to surprise the plaintiff and his attorney at deposition. The court was also troubled by the fact that IBM had yet to produce the offending documents themselves. See the decision in Langley v. IBM, No. 18-cv-433, 2019 WL 1559146 (W.D. Tex. 4/10/2019) here.

The documents are described only in general terms. They were filed with the court under seal. So, they were apparently sensitive documents. Yet, they were also relevant, or the court would have said so. So, the failure of IBM to produce them is stark. It is an old axiom that one cannot come into court seeking equity (i.e., sanctions) if one has not acted with equity. The court was troubled by IBM’s conduct. Technically, a lawyer cannot instruct his client to refuse to answer a question based on lack of relevance. But, I expect the Judge was annoyed with IBM’s conduct throughout the litigation, including hiding these sensitive, but relevant documents.

Too, asking for the names of current employees who have provided help to a former longtime employee is a very sensitive topic. It is likely the leakers would suffer some reprisal for their conduct. The court had to know this. The IBM lawyers clearly wanted to apply the greatest amount of pressure they could at the plaintiff’s deposition.