Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 1 of 41 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ANDREW G. TSOUNOS, Plaintiff, vs. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) Civil Action No. 17-409 Hon. David R. Cercone Plaintiff’s Motion to Compel Production of Youth Branding and Culture Evidence 1. 1 Meet the new, much younger IBM. 1 These are the images IBM projects to the world on its Corporate Careers page. See, http://www03.ibm.com/employment/us/, http://www-03.ibm.com/employment/us/meet_ibm.shtml, and http://www03.ibm.com/employment/us/find_your_fit.shtml, accessed March 19, 2017. Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 2 of 41 2. The IBM that brands itself through pictures of young people – young people on its Corporate Careers page, and young people on its social media platforms such as LinkedIn.2 2 See, https://www.linkedin.com/company-beta/1009/life/ accessed March 26, 2017. 2 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 3 of 41 3. And YouTube.3 3 Image from IBM’s Global Jobs page on YouTube, https://goo.gl/7ern7E accessed April 2, 2017. 3 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 4 of 41 4. And Twitter.4 4 See, #IBMillennial at https://twitter.com/hashtag/IBMillennial?src=hash, accessed 6/30/17. 4 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 5 of 41 5. In this age discrimination case, Plaintiff, age 58, alleges that he was selected for termination in a nationwide reduction in force because of his age, even though Plaintiff was a very strong and successful performer. Complaint, ¶¶ 28-52, 65-66. 6. Plaintiff further alleges that he was not hired for any of the eleven positions for which he subsequently applied at IBM because of his age. Id. 7. IBM identified the decisionmaker as 40 year-old Ryan Zombo, Plaintiff’s supervisor. Id. at ¶ 30. All the people Zombo selected for consideration for termination were over the age of 40. Complaint, ¶ 53, Exhibit 9. 8. IBM lied to the EEOC about its termination reason, saying that Zombo selected Plaintiff for termination because Plaintiff was a very poor performer. Complaint, ¶¶ 53-59. 9. IBM filled four of the positions for which Plaintiff applied. Two of the people IBM hired were Millennials, each born in 1980. The other two were born in 1976 and 1962 respectively. The average age of these hires was 41.5 years, 16.5 years younger than Plaintiff. 10. When Plaintiff asked decisionmaker Zombo why Plaintiff was selected for termination, Zombo replied, “The Company is looking to bring in younger people with more energy.” Complaint, ¶ 50. 11. Why would Zombo say that “IBM was looking to bring in younger people with more energy”? 12. Because it was true. 13. In or around 2102, IBM embarked on a massive reinvention and rebranding campaign that had two principal and symbiotic objectives: first, to transform IBM into a “Cognitive Solutions” company deeply invested in the markets for Cloud, Big Data & Analytics, Mobile, Security and Social technologies and services (“CAMS”), and second, to change the 5 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 6 of 41 face of IBM by recruiting and retaining Millennials, which IBM defined as the generation born after 1980. Complaint, at ¶ 1. 14. At an IBM conference in 2014 titled “Reinvention In The Age of The Millennial,” IBM expressly linked its business success in CAMS to Millennials, asserting that “CAMS are driven by Millennial Traits.” By “reinventing” itself, IBM sought to “leapfrog[] the existing perception of IBM to become a leader in Millennial engagement” and thereby “drive CAMS adoption.” IBM intended to become “exponentially relevant with the Millennial demographic” by “showcas[ing] IBM’s capabilities in CAMS, driven by the digitally native millennials.” Id. at ¶ 2. 6 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 7 of 41 15. Millennials represented a “trillion dollar market” and “billions” of dollars in potential sales for IBM. Id. at ¶ 3. 16. Compared to Baby Boomers (born roughly 1946-1964) and Generation X (born early mid-1960s to early 1980s), Millennials had “different values” and were “not just an age group.” Id. at ¶ 4. 17. It was therefore critical for IBM to “become one with the Millennial mindset.” “Mindshare converts to marketshare,” IBM wrote, and IBM’s “leadership in millennial engagement is the ideal value proposition for generating CAMS pipeline, which is driven by Millennial traits.” Id. at ¶ 5. 18. IBM preached that “[w]hat’s good for Millennials is good for everyone” and repeatedly expressed that the best person to sell to a Millennial was another Millennial. “[T]he secret to capturing the hearts, minds, and most importantly, wallets of the millennial generation is likely working with you. Your millennial employees are your most valuable and accessible asset when it comes to successfully marketing your business to the millennial generation.”5 Id. at ¶ 6. 19. Also in 2014, IBM published “Millennials: How IBM can effectively attract, engage and retain this emerging generation.” Because IBM “face[d] major competition with [other] companies acquiring Millennials, both within the tech sector (i.e., Microsoft, Amazon) and beyond,” IBM developed a “strategy to attract top Millennial talent.” IBM distilled its strategy into an infographic titled “Millennials – Attract. Engage. Retain.” Id. at ¶ 7. 5 “Marketing and the Millennial Mindset” – An Interview with IBM’s Samantha Klein, The Marketing Journal, June 3, 2016, available at http://www.marketingjournal.org/marketing-andthe-millennial-mindset-an-interview-with-ibms-samantha-klein/ 7 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 8 of 41 20. In 2015, IBM published “Myths, exaggerations and uncomfortable truths – The real story behind Millennials in the workplace,”6 a recruiting tool designed to gain credibility with Millennials by flattering them, purporting to refute stereotypes about Millennials, and identifying IBM as highly interested in Millennial employees. Id. at ¶ 9. 21. Myths, exaggerations and uncomfortable truths expressly compared and contrasted Millennial employees with Generation X and with Baby Boomers. Whereas IBM professed to find many positive traits associated with the Millennial generation, IBM tended to be critical of older workers. Id. at ¶ 10. 22. For example, older workers were technologically less sophisticated because they were not “digital natives.” Baby Boomers allegedly “place[d] less stock in the advantages [that] 6 Available at https://www935.ibm.com/services/us/gbs/thoughtleadership/millennialworkplace/ accessed March 27, 2017. 8 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 9 of 41 data offer[ed] than their younger colleagues” and were comparatively “dubious” of technology. Boomers were also far less “savvy” than Millennials with respect to social media. Id. at ¶ 11. 23. “Successor generations X and Y are generally much more innovative and receptive to technology than baby boomers,” IBM wrote in another publication.7 “[A]ge is catching up with Baby Boomers,” whom IBM referred to as “gray hairs” and “old heads.”8 Boomers were leaving work in increasing numbers “due to retirement or disability.” Those still working often needed accommodations for “‘wear and tear’ disabilities like hearing and vision impairment [sic] that older people routinely develop.”9 Id. at ¶ 12. 24. Boomer employees were also less likely to admit mistakes at work or collaborate in decision-making, traits that caused friction in the workplace. “Baby Boomers accustomed to making decisions on their own may find it difficult to shift to a more collaborative culture, which can cause tension between older and younger employees.” Id. at ¶ 13. 25. IBM also determined that Boomers generally had negative attitudes about IBM’s leaders and their qualifications to make decisions. Id. at ¶ 14. 26. Compared to younger employees, Boomers were the least likely to understand IBM’s business strategy, least likely to understand their manager’s expectations of them, least likely to understand what customers wanted, and the least likely to understand IBM’s brand. Id. at ¶ 15. 7 The Maturing Workforce, Innovation in Workforce Enablement, IBM Business Consulting Services, 2006, p. 6 accessed March 29, 2017, available at https://www935.ibm.com/services/uk/bcs/pdf/maturing-workforce-feus01291-1.pdf. 8 Id. at pp. 2-3. 9 Id. at p. 3. 9 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 10 of 41 27. In August, 2016, IBM Marketing Manager Erika Riehle stereotyped Boomer employees as contributing to five workplace “dysfunctions.”10 Boomers were allegedly less trusting of their co-workers, less collaborative, less committed, less accountable and less attentive to results. Id. at ¶ 16. 28. In a 2015 paper entitled “To buy or not to buy? How Millennials are reshaping B2B marketing,”11 IBM again found that Boomer employees were not motivated to consult their colleagues before making decisions. This was a negative trait because “[f]or leading organizations, a corporate culture of collaboration and consensus building is needed.” To create that culture, IBM recommended that companies “[p]ut Millennials on [their] sales and marketing teams.” Id. at ¶ 17. 29. Another part of IBM’s Millennial-driven reinvention was expressed in the creation of IBM’s “Millennial Corps.” IBM’s “Millennial Corps is a group of more than 5,000 IBMers [from] all across the world where Millennial-age and Millennial-minded IBMers come together to share ideas, feedback and suggestions, [and] really try[] to drive change within [IBM] as ultimately [they] are the future leaders of it.”12 Id. at ¶ 18. 30. IBM also instituted an “Early Professional Hiring” program targeted solely at young professionals. “The idea is to bring in as much young talent into the workforce with every 10 Managing Millennials: 5 Common Issues Leaders Face, published August 24, 2016, accessed March 27, 2017 at https://www.ibm.com/blogs/social-business/2016/08/24/managingmillennials-5-common-issues-leaders-face/. 11 Accessed March 27, 2017 and available at http://www-01.ibm.com/common/ssi/cgibin/ssialias?htmlfid=GBE03658USEN. 12 Inside IBM: Meet Sarah, a Millennial Corps member who works in Workforce Enablement, available at https://www.youtube.com/watch?v=jUmULbTzKpE. 10 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 11 of 41 given opportunity.”13 One IBM job advertisement for a sales position, for example, expressly requires job applicants to have graduated in 2014, 2015 or 2016 to be eligible for employment. Id. at ¶ 19. 31. Very recently, IBM launched a branding/advertising initiative called “THE RISE OF YOU” or “youIBM.” In support of this initiative, IBM ran a full color, four page ad in the A Section of the New York Times (print edition) on Monday, May 22, 2017, at pp. A11-A14.14 Note the ages of the persons IBM selected to represent its brand. 13 IBM New Team to Focus on Millennials, Business Standard, May 31, 2016, accessed March 20, 2017 at http://www.business-standard.com/article/companies/ibm-s-new-team-tofocus-on-millennials-116053000677_1.html 14 See, https://www.ibm.com/thought-leadership/you/manifesto/ accessed July 27, 2017. 11 Case Document 22 Filed 06/30/17 Page 12 of 41 THE POWER OF KNOWLEDGE. THE POWER OF TECHNOLOGY. THE POWER OF YOU. Data IS there-.1 basis of camper tiue advawtage??cr ndust'ies. fO' con?panses and yet]. BJI no human can read, see. feel. heat and max?:- 59?5-9 of at. cata twat IS gz'uy'k arc thew arc-?essiom IBM Clcuc. tl?. can. It's a M?oly zen-.- plat?orm for bJsmess. bat-?ed by IBrvfers and tem?olcgtes that enable ycu to do your ls?e's work. This :5 yum to the pct-oer of I CAN TURN WEATHER AND TWEETS INTO HIGH-YIELD RETURNS. . Llc-Jd 3.1m?: 12 Case Document 22 Filed 06/30/17 Page 13 of 41 I CAN KEEP UP WITH 5,000 NEW MEDICAL STUDIES A DAY AND STILL SEE PATIENTS. War/hcallhcarc ?0 the gamer cI IBM I CAN ANALYZE 1 MILLION SECURITY EVENTS A SECOND. Securily Watwr . -- 4~ YI- I: security lo the power a! IBM I CAN SEE THE PAST, PRESENT AND FUTURE OF 70 MILLION SHIPMENTS. .. IBM Blockc'm n. Watsor lo: :14: lo the oI IBM. I CAN HELP 275,000 PEOPLE SETTLE PARKING TICKETS. Wauar IHVI L'loud 'h -. 1hr: power cl u??A I CAN BE IN 30 MILLION PLACES AT ONCE. .. . A Ihi: waruiacln'lrg ton: powcra? Hm. I CAN ANSWER 33,000 DIFFERENT QUESTIONS FROM 33.000 DIFFERENT CUSTOMERS AT THE SAME TIME. .. IEIM Scrv'x: Watson . Thu: i5 :crvicc 1: the of IBM. 13 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 14 of 41 32. IBM projects a diverse and inclusive employment brand with respect to race, national origin, gender, disability and sexual orientation.15 33. Conspicuously, however, IBM does not brand itself as being interested in older workers. In stark contrast to IBM’s visual representation of its employment brand and corporate culture through countless pictures of young people, there are no pictures of Baby Boomers (whom IBM referred to as “gray hairs” and “old heads”) on IBM’s Careers page or its social media sites. 15 As to disability and sexual orientation, see #InclusiveIBM at https://twitter.com/hashtag/inclusiveibm?lang=en, accessed June 5, 2017 and https://blog.ibm.jobs/category/diversity/, accessed June 5, 2017. 14 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 15 of 41 34. In further contrast to IBM’s embrace of Millennials, IBM has no “Baby Boomer Corps.” It has no Twitter page dedicated to Baby Boomers. Nor has IBM published any papers refuting stereotypes about older workers, even though there is an extensive body of research confirming that ageism and ageist stereotypes pollute the American workplace. 35. IBM has devoted enormous resources to branding itself as a hip, Millennial- centric tech company. The items described above are illustrative, not exhaustive. IBM complemented them with Millennial-themed seminars, holiday parties, blogs,16 leadership programs, social media initiatives, white papers,17 online videos, newscasts18 and other advertising and public relations efforts intended to shed IBM’s image “as a company composed mainly of aging white guys,” and to substitute in its place a new, cooler, much younger image of IBM comprised of “rock star” Millennials.19 Id. at ¶ 20. 16 E.g., Step-by-Step: Lead like a Millennial executive, December 11, 2015, available at https://www.ibm.com/blogs/think-leaders/how-to/step-by-step-lead-like-a-millennial-executive/; The Key to Recruiting Millennials, March 17, 2016, available at https://www.ibm.com/blogs/smarter-workforce/2016/03/the-key-to-recruiting-millennials/ 17 E.g., Can the Millennial generation rescue government? Leveraging digital natives in your transformation efforts, IBM Institute for Business Value, 2016, available online at https://www-935.ibm.com/services/us/gbs/thoughtleadership/govtmillennials/ 18 E.g., The truth behind millennials in the workplace, Fox Business News segment airing February 15, 2015, available at http://video.foxbusiness.com/v/4069023679001/?#sp=show-clips 19 17 IBM rock star employees that show the company's new direction, The Business Insider, April 9, 2015, accessed March 27, 2017, available at http://www.businessinsider.com/ibm-rock-star-employees-2015-4. 15 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 16 of 41 Factual and Legal Bases for Plaintiff’s Discovery Requests 36. Given (a) the youth-image that permeates every aspect of IBM’s employment branding, (b) IBM’s documented embrace of all things Millennial, (c) the age stereotypes that IBM publicly announced about Baby Boomers (e.g., Boomers are less innovative, less receptive to technology, less collaborative, etc. than younger generations), (d) the 40 year-old decisionmaker’s statement that Plaintiff was selected for termination because “the Company was looking to bring in younger people with more energy,” (e) IBM’s demonstrable lies to the EEOC about Plaintiff’s performance, (f) the fact that everyone the decisionmaker selected for consideration for termination was over the age of 40, and that (g) IBM soon hired four people for positions for which Plaintiff applied who were on average 16.5 years younger than Plaintiff, Plaintiff naturally propounded discovery requests to IBM seeking information about IBM’s youth-based employment branding and corporate culture. 37. Such evidence has been held relevant and discoverable in countless cases. 38. In Palasota v. Haggar Clothing Co., 342 F.3d 569, 577 (5th Cir. 2003), the court held that an employer’s “campaign to present a more youthful image” was relevant evidence of age discrimination. 39. In Stamey v. Southern Bell Tel. & Tel. Co., 859 F.2d 855, 862 (11th Cir. 1988), the court held that the employer’s “attempt[] to present a youthful image to its customers” was relevant evidence of age discrimination. 40. In Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 55 (3rd Cir. 1989), the Third Circuit held that an executive’s statement about a desire to change the company from having older management, which was made after the plaintiff was terminated, was probative of age discrimination. 16 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 17 of 41 41. In Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 333-34 (3rd Cir. 1995), the Third Circuit held that the CEO’s statement that “two of our star young men are in their mid-40s. That group is our future” in a company newsletter was circumstantial evidence of the employer’s managerial policy, and such evidence was relevant to show the corporate culture in which a company made its employment decisions. 42. In Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 130-32 (3rd Cir. 1997), the Third Circuit held that a memo taken at an executive meeting containing ageist statements by anonymous executives was probative of a formal or informal managerial attitude toward older workers, even though the meeting took place a full year after the plaintiff was terminated, did not directly relate to the plaintiff’s termination, and did not reflect comments by the actual decisionmaker. 43. In Wray v. Northern Telecom, Inc., 1995 WL 945825 *4 (M.D.N.C. 1995), the court denied the employer’s motion for summary judgment on the plaintiff’s ADEA claim based in part on evidence of the employer’s “youth culture.” 44. The Supreme Court has also recognized that “[o]ne commonplace conception of American society in recent decades is its character as a youth culture … where younger is better….” General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581. 591 (2004). 45. Under the above authorities, IBM’s youth-based branding campaign and its “Reinvention in the Age of the Millennial” are plainly relevant to the issue of IBM’s cumulative managerial attitudes toward older workers and younger workers. 17 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 18 of 41 46. In addition, there is a direct causal link between IBM’s pervasive youth culture and branding and the specific decision to select Plaintiff for termination. The 40 year-old decisionmaker Zombo expressly said that Plaintiff was selected for reduction because “the Company was looking to bring in younger people with more energy.” 47. IBM runs one of the most sophisticated marketing and branding operations in the world. The pictures of young people that festoon IBM’s Careers page, social media pages and its newspaper advertising were approved at the highest levels of the Company as a deliberate corporate strategy. In this age discrimination case, Plaintiff has a right to inquire into IBM efforts to deliberately and massively project itself as a Company organized around younger people. 48. Such discovery is consistent with the liberal thrust of the Federal Rules. 49. The amendments to Rule 26(b)(1) allow discovery of “any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 50. Rule 26 establishes a liberal discovery policy. Clemens v. N.Y. Cent. Mut. Fire Ins. Co., 300 F.R.D. 225, 226-27 (M.D. Pa. 2014); Great West Life Assurance Co. v. Levithan, 152 F.R.D. 494, 497 (E.D. Pa. 1994). Discovery is permitted of any items that are relevant or may lead to the discovery of relevant information. Hicks v. Big Brothers/Big Sisters of Am., 168 F.R.D. 528, 529 (E.D. Pa. 1996). The scope of relevance in discovery is very broad; discovery is not confined to admissible evidence, but extends to information which appears reasonably 18 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 19 of 41 calculated to lead to the discovery of admissible evidence. Callahan v. A.E.V., Inc., 947 F. Supp. 175, 177 (W.D. Pa. 1996). 51. The parties met and conferred twice in person, once over the telephone for an hour, and through the exchange of several emails. Plaintiff made clear his willingness to work with IBM to address any concerns it had regarding the scope of Plaintiff’s requests or the burden/expense associated with responding to them. 52. IBM’s position remained steadfast and absolute. Absent a Court Order, it would not answer any of Plaintiff’s interrogatories, or produce any documents and ESI in response to Plaintiff’s requests for information about IBM’s youth-culture and youth-based employment branding. 53. IBM raised four basic objections to Plaintiff’s requests. According to IBM, it was not required to respond to Plaintiff’s discovery requests because: a. None of them were relevant, b. This is a lowly “single-plaintiff” case, c. They were all disproportionate “to the needs of the case,” d. They were all overbroad, unduly burdensome and not reasonably limited. None of IBM’s objections have merit. IBM’s Relevance Objections Are Meritless 54. IBM’s relevance objections fail for three reasons. First, they fail because the Third and other Circuit Courts of Appeal have expressly held that branding/culture evidence is relevant to building a circumstantial case of age discrimination. Next they fail because IBM’s youth-centered reinvention and youth-based branding campaign is a Company-wide campaign; as such, Plaintiff’s discovery requests cannot be tailored to the Analytics Sales Department as 19 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 20 of 41 IBM insists. Third, they fail because Plaintiff can directly link IBM’s youth-centered reinvention and youth-based branding campaign to the specific decision to select him for termination. IBM’s Has Not Demonstrated Undue Burden, Lack of Proportionality or Overbreadth 55. The party resisting discovery has the burden of showing undue burden, expense or lack of proportionality. See, e.g., Fireman's Fund Insurance Co. v. Great American Insurance Co. of New York, 284 F.R.D. 132, 135 (S.D.N.Y. 2012) (“Once relevance has been shown, it is up to the responding party to justify curtailing discovery.”). In this case, IBM’s “undue burden, expense and lack of proportionality” objections ring hollow. 56. The 2015 amendments to the Federal Rules did not bring about a sea change in discovery practice. Generalized assertions of undue burden, expense or lack of proportionality are inadequate. See, Fed. R. Civ. P. 26 Advisory Committee Notes to 2015 Amendments (“Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional.”). A party opposing production must back up its objections with specific facts. Id. ( “A party claiming undue burden or expense ordinarily has far better information – perhaps the only information – with respect to that part of the determination.”). 57. IBM has produced no support for its undue burden and lack of proportionality objections, and this is not surprising. Searching for documents and ESI responsive to Plaintiff’s branding and corporate culture discovery requests would be a simple matter of working with relevant custodians and conducting relevant enterprise searches. Responsive information will be found in the C-Suite, IBM’s Marketing Department and in the hands of IBM’s Brand Strategists. It will also exist on IBM’s servers. Searching these readily accessible media and others on 20 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 21 of 41 which responsive information is likely to reside should be a breeze for the world’s most sophisticated IT Company. 58. Rather than back up its objections with facts, IBM instead derides this action as a “single plaintiff case.” That, however, is not a legal objection. 59. It is also a misguided criticism because individual discrimination plaintiffs serve an important social and legal function. Congress chose private litigants like Mr. Tsounos to be the primary agents of enforcement of the anti-discrimination laws. See, General Telephone Co. v. EEOC, 446 U.S. 318, 326 (1980) (private litigants acting as private attorneys general vindicate the public interest in the eradication of employment discrimination). 60. As the Third Circuit explained in Mardell v Harleysville Life Ins. Co., 31 F.3d 1221 (3rd Cir, 1994), remanded for reconsideration on other grounds, 115 S.Ct. 1397 (1995), reaffirmed and reinstated in relevant part, 65 F.3d 1072 (3d Cir. 1995): [A]n act of employment discrimination is much more than an ordinary font of tort law. The anti-employment discrimination laws are suffused with a public aura for reasons that are well known. Throughout this Nation's history, persons have far too often been judged not by their individual merit, but by the fortuity of their race, the color of their skin, the sex or year of their birth, the nation of their origin, or the religion of their conscientious choosing. Congress has responded to these pernicious misconceptions and ignoble hatreds with humanitarian laws formulated to wipe out the iniquity of discrimination in employment, not merely to recompense the individuals so harmed but principally to deter future violations. The anti-employment discrimination laws Congress enacted consequently resonate with a forceful public policy vilifying discrimination. A plaintiff in an employmentdiscrimination case accordingly acts not only to vindicate his or her personal interests in being made whole, but also as a “private attorney general” to enforce the paramount public interest in eradicating invidious discrimination. 61. In its Notes on proportionality, the Advisory Committee emphasized that “It also is important to repeat the caution that the monetary stakes are only one factor, to be balanced 21 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 22 of 41 against other factors. The 1983 Committee Note recognized the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved. Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.” 62. Moreover, even looking solely at the hard dollars, this is a high value employment discrimination case. Plaintiff was earning over $200,000 annually in wages and benefits at the time of his selection for termination, and intended to work for IBM for at least another 10 years if not longer. Together with Plaintiff’s attorney fees, liquidated damages and anticipated compensatory damages, the monetary value of Plaintiff’s claims exceeds $3,000,000. 63. As well, IBM and IBM alone has access to the information Plaintiff has requested. Plaintiff cannot obtain it from other sources. This case involves what the Advisory Committee calls “information asymmetry.” Information is asymmetric where “[o]ne party often an individual plaintiff - [has] very little discoverable information[,] [but] [t]he other party [has] vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.” 64. Notably, IBM has not asserted that providing the requested discovery would cause it undue expense. Nor could it. IBM had gross sales in 2016 of $80 Billion. 22 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 23 of 41 65. Pursuant to LCvR 37.2 - FORM OF DISCOVERY MOTIONS, Plaintiff sets forth below a verbatim recitation of each interrogatory, request, answer, response, and objection which is the subject of this motion. WHEREFORE, for all the foregoing reasons, Plaintiff respectfully prays the Court will grant Plaintiff’s Motion and Order IBM to respond fully and completely to Plaintiff’s discovery requests within 14 calendar days of the Court’s Order. A proposed Order is attached. Respectfully submitted, s/ Charles A. Lamberton Lamberton Law Firm, LLC Pa. I.D. No. 78043 1705 Gulf Tower Pittsburgh, PA 15219 412-258-2250 - O 412-258-2249 - F 412-498-4120 - C (24/7) cal@lambertonlaw.com Counsel for Plaintiff June 30, 2017 CERTIFICATE OF SERVICE: I, Charles A. Lamberton, certify that a copy of this paper has been served on all counsel of record via the Court’s CM/ECF system. s/ Charles A. Lamberton 23 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 24 of 41 Specific Interrogatories and Production Requests at Issue in this Motion Interrogatory No. 5: Identify and state with particularity all actions IBM has taken to recruit, attract, engage and/or retain Millennials (as the term “Millennials” is defined above), since January 1, 2012, and include in your response an identification of all meetings, communications, documents and ESI that reference, reflect or relate to IBM’s plans, strategies, actions or efforts to recruit, attract, engage and/or retain Millennials. ANSWER: IBM asserts its threshold objection regarding the breadth and scope of appropriate discovery in this single-plaintiff disparate treatment discrimination case (hereinafter “Threshold Objection”), of which the Plaintiff is aware. IBM also objects to this Interrogatory on the grounds that it seeks information that is not relevant to any party’s claim or defense, and is not proportional to the needs of the case, as the requested information is wholly unrelated to Plaintiff’s particular termination and/or job applications in this single-plaintiff discrimination case. IBM also objects to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and not reasonably limited, temporally or organizationally. IBM further objects to this Interrogatory as seeking to impose burdens greater than those required by the Federal Rules of Civil Procedure, which limits Plaintiff to 25 interrogatories. IBM has responded to 25 interrogatories herein. Interrogatory No. 8: From January 1, 2012 to the present, identify all research, studies, investigations, examinations, analyses, surveys, audits or reviews IBM or its agent has conducted or adopted that reference, discuss or relate to age, age demographics, applicant or employee generations, Millennials, Generation X, Baby Boomers, the actual or perceived traits of any age generation, or the age demographics of IBM’s actual or desired workforce. ANSWER: IBM again raises its Threshold Objection. IBM also objects to this Interrogatory on the grounds that it seeks information that is not relevant to any party’s claim or defense, and is not proportional to the needs of the case, as the requested information is wholly unrelated to Plaintiff’s particular termination and/or job applications in this single plaintiff discrimination case. IBM also objects to the terms “investigations,” “examinations,” “surveys,” and “audits” as vague, ambiguous, and subject to varying interpretations. In addition, IBM objects to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and not reasonably limited in time given the issues in this case. IBM also objects to this Interrogatory as seeking to impose burdens greater than those required by the Federal Rules of Civil Procedure, which limits Plaintiff to 25 interrogatories. IBM has responded to 25 interrogatories herein. 24 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 25 of 41 Interrogatory No. 9: For the period from January 1, 2012 to the present, describe with particularity all of IBM’s efforts to internally and externally brand to Millennials or to the Millennial Generation, whether as prospective employees, current employees, prospective IBM customers, current IBM customers, or as members of the public. ANSWER: IBM again raises its Threshold Objection. IBM also objects to this Interrogatory on the grounds that it seeks information that is not relevant to any party’s claim or defense, and is not proportional to the needs of the case, as the requested information is wholly unrelated to Plaintiff’s particular termination and/or job applications in this single-plaintiff discrimination case. In addition, IBM objects to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and not reasonably limited in time given the issues in this case. IBM also objects to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and not reasonably limited in time given the issues in this case. IBM further objects to this Interrogatory as seeking to impose burdens greater than those required by the Federal Rules of Civil Procedure, which limits Plaintiff to 25 interrogatories. IBM has responded to 25 interrogatories herein. Interrogatory No. 12: Since January 1, 2013, has IBM run or posted any job ads for employment in the United States that require applicants to still be in college or graduate school, or to have graduated in or after a certain year, or to have a maximum number of years of work experience? If so, kindly identify all such job ads. If you answer in the negative, identify every step you took to verify the accuracy of your answer. ANSWER: IBM again raises its Threshold Objection. IBM also objects to this Interrogatory on the grounds that it seeks information that is not relevant to any party’s claim or defense, and is not proportional to the needs of the case, as the requested information is wholly unrelated to Plaintiff’s particular job applications in this single-plaintiff discrimination case. IBM also objects to this Interrogatory as it is not reasonably limited in time, given that Plaintiff’s attempts to find new employment at IBM after his layoff notification took place in 2016. IBM also objects to this Interrogatory as seeking to impose burdens greater than those required by the Federal Rules of Civil Procedure, which limits Plaintiff to 25 interrogatories. IBM has responded to 25 interrogatories herein. 25 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 26 of 41 REQUEST NO. 23: For the period from January 1, 2012 to the present, any and all studies, analyses, audits, surveys, communications or other documents or ESI that discuss, reference or relate to any plan, strategy, goal or effort to change the age demographics of IBM’s workforce. RESPONSE: Defendant asserts its Threshold Objection regarding the appropriate scope and breadth of discovery. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “any and all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad, unduly burdensome as seeking information not relevant to the claims or defenses of either party and as being disproportional to the needs of the case, in that it is not limited in scope to the reduction of force that impacted the Plaintiff, nor to an appropriate temporal scope. Defendant further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege and/or the work product doctrine. Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. REQUEST NO. 44: From January 1, 2013 to the present, all documents and ESI, including emails, instant messages, chat room communications, text messages, PowerPoint slides, pdf files, videos and other information wherein any IBM executive, manager or supervisor discusses Millennials, IBM’s hiring of Millennials, #IBMillennial, the Millennial Corps or IBM’s strategy or efforts to recruit, attract, engage and/or retain Millennials, irrespective of whether the term “Millennial” is used in such documents or ESI. RESPONSE: Defendant asserts its Threshold Objection. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request in that it is not appropriately limited in scope to a relevant time period nor to the relevant organization in which Plaintiff worked, nor is it appropriately limited in temporal scope. Defendant also objects to this request as seeking information that is not relevant to the claims or defenses of either party. 26 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 27 of 41 REQUEST NO. 45: All documents and ESI, including emails, instant messages, chat room communications, text messages, PowerPoint slides, pdf files, videos and other information wherein any IBM executive, manager or supervisor discusses IBM’s efforts to advertise or market to Millennials. RESPONSE: Defendant asserts its Threshold Objection. See objections to Request No. 44. REQUEST NO. 46: All documents, ESI and communications reflecting or relating to IBM’s efforts to internally and externally brand to Millennials, or members of the Millennial Generation, whether as prospective employees, current employees, prospective IBM customers, current IBM customers, or as members of the public. RESPONSE: Defendant asserts its Threshold Objection. See objections in response to Request No. 44. REQUEST NO. 49: From January 1, 2012 to the present, all internal studies of IBM’s existing workforce or desired workforce that examine employees by age, generation, length of service, graduation date or expected date of retirement. RESPONSE: Defendant asserts its Threshold Objection. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. Defendant further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege and/or the work product doctrine. Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. Defendant objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. 27 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 28 of 41 REQUEST NO. 50: The document entitled “Millennials: How IBM can effectively attract, engage, and retain this emerging generation,” and all communications about it from 2014 to the present. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” communications, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. REQUEST NO. 51: The Infographic entitled “Millennials – Attract. Engage. Retain.” and all communications about it from 2014 to the present. RESPONSE: Defendant asserts its Threshold Objection. Defendant also objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” communications, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. 28 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 29 of 41 REQUEST NO. 52: All written and electronic materials presented or generated at IBM’s 2014 Conference “The Millennial Experience” and/or “Reinvention in the Age of the Millennial,” and all communications that refer or relate to said conference. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” written and electronic materials, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. REQUEST NO. 53: All contracts and spec sheets for services pertaining to any contract IBM executed with any third party, including ProMazo, for the purpose of recruiting Millennials, advertising to Millennials, marketing to Millennials or branding to Millennials, and all communications generated in connection with the performance of such contracts by any IBM employee or any employee of the third-party vendor. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being vague and ambiguous due to Plaintiff’s failure to define the term “spec sheets.” There is more than one potential meaning of that terms, at least in the context of this case, and Defendant responds consistent with its own understanding of the undefined term. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” contracts and spec sheets, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent that it demands production of documents 29 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 30 of 41 containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. REQUEST NO. 54: All source materials, drafts, redlined versions, comments upon or critiques of IBM’s publication “Myths, exaggerations and uncomfortable truths, The real story behind Millennials in the workplace,” and press releases and communications that refer to or discuss said publication, including communications with third parties. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” source materials, drafts, redlined versions, comments upon and critiques, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. 30 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 31 of 41 REQUEST NO. 55: To the extent not previously produced, all documents, ESI and communications that reference or relate to any research or study of Millennials or the Millennial generation for purposes of workforce planning, recruiting, hiring, retention, marketing, branding, advertising or selling IBM’s products and services, whether conducted by IBM directly or by an outside vendor on IBM’s behalf. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. Defendant further objects to this request as being overly broad and disproportional to the needs of the case in that it seeks documents unrelated to hiring or employee separation. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. REQUEST NO. 60: All documents and ESI that discuss or explain IBM’s reason for creating #IBMillennial. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. 31 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 32 of 41 REQUEST NO. 61: All documents and ESI that discuss or explain IBM’s reason for creating the Millennial Corps. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. REQUEST NO. 62: All documents, ESI and communications that reflect or relate to IBM’s efforts to become a leader in Millennial engagement. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. 32 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 33 of 41 REQUEST NO. 63: All documents, ESI and communications that reflect or relate to IBM’s belief conclusion that CAMS are driven by Millennial traits. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. REQUEST NO. 64: All documents, ESI and communications that reflect or relate to IBM’s understanding of “Millennial traits.” RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. 33 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 34 of 41 REQUEST NO. 66: All documents and ESI that identify or discuss the competencies IBM required of applicants or employees in 2014, 2015, 2016 and 2017 respectively, including all documents and ESI that reflect IBM’s research regarding employee competencies, and further including all documents, ESI and communications wherein competencies were linked in any way to age, an age group or a generation, or the actual or perceived traits of an age group or generation. RESPONSE: Defendant asserts its Threshold Objection. Defendant also objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. REQUEST NO. 75: All emails, memoranda, meeting minutes, agendas, notes, directives, resolutions and other documents and ESI wherein IBM executives, HR professionals or managers with hiring/firing authority discussed IBM’s need or strategy to recruit and employ persons of a particular age demographic or generation, such as Millennials, Generation Y, persons under the age of 40, “digital natives,” and so on. RESPONSE: Defendant asserts its Threshold Objection. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly 34 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 35 of 41 broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. REQUEST NO. 76: All documents and ESI referencing, reflecting, analyzing, measuring or studying changes in the age demographics of IBM’s United States workforce from January 1, 2013 through the present. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. Defendant further objects to this request to the extent that it seeks documents protected from disclosure by the attorney-client privilege and/or the work product doctrine. Defendant further objects to this request because it seeks documents that are not relevant to the claims or defenses of either party. 35 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 36 of 41 REQUEST NO. 77: All documents and ESI reflecting or referencing IBM’s strategy to compete with companies such as Google, Microsoft, Apple, Amazon and other companies IBM deems to be competitors, to the extent such strategy relates to the ages of prospective IBM employees, current IBM employees, or the ages IBM’s current or desired customers. RESPONSE: Defendant asserts its Threshold Objection. Defendant objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. Defendant further objects to this request because it seeks documents that are not relevant to the claims or defenses of either party. 36 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 37 of 41 REQUEST NO. 78: All communications by IBM’s Chief Marketing Officer, Chief Recruiting Officer, Chief Executive Officer, Chief Financial Officer, Director of Corporate Communications and by any Recruitment Leader for any IBM business unit or division, from January 1, 2014 to the present that reference or relate to the recruitment, hiring and/or retention of Millennials, digital natives, Generation Y (or any other term IBM uses to describe Millennials), or IBM’s efforts to brand, advertise or market to Millennials, digital natives, Generation Y, etc. RESPONSE: Defendant asserts its Threshold Objection. Defendant also objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1). Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. Defendant further objects to this request because it seeks documents that are not relevant to the claims or defenses of either party. 37 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 38 of 41 REQUEST NO. 88: All documents and ESI describing, and all communications by or to any IBM executive or human resources employee referencing or relating to IBM’s campus/college/university recruiting programs in the United States, or IBM’s internship and leadership/development programs in the United States (e.g., Extreme Blue and Consulting by Degrees). RESPONSE: IBM asserts its Threshold Objection. Defendant objects to this request because it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. REQUEST NO. 89: To the extent not previously produced, all studies or research you have conducted, paid for, or adopted about Millennials, including the traits of Millennials. RESPONSE: IBM asserts its Threshold Objection. Defendant objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. 38 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 39 of 41 REQUEST NO. 90: To the extent not previously produced, all studies or research you have conducted, paid for or adopted about Baby Boomers or older workers, including the traits of Baby Boomers or older workers. RESPONSE: IBM asserts its Threshold Objection. Defendant objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. REQUEST NO. 91: To the extent not previously produced, all studies or research you have conducted, paid for or adopted about Generation X, including the traits of members of Generation X. RESPONSE: IBM asserts its Threshold Objection. Defendant objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad, unduly burdensome and disproportional to the needs of the case because it demands “all” documents, conceivably requiring Defendant to search each and every file in its possession, paper and/or electronic, to determine whether such files contain potentially responsive documents. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to the sales organization of Analytics, which is the group in which Plaintiff was employed. Defendant further objects to this request as being overly broad in temporal scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not limited to an appropriate time period. Defendant further objects to this request to the extent that it demands production of documents containing confidential and/or proprietary business information, which Defendant protects from public disclosure as a matter of course. 39 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 40 of 41 REQUEST NO. 92: The interactive survey “How Millennial Are You?” RESPONSE: IBM asserts its Threshold Objection. Defendant objects to this request because it seeks documents that are not relevant to the claims or defenses of either party. REQUEST NO. 121: In connection with the 4-page advertisement IBM ran in the A Section of the New York Times (print edition) on Monday, May 22, 2017, appearing at A11-A14, all communications that reference, discuss or describe how you selected the individuals whose photographs appear in the ad, including any documents or ESI that reference, discuss or describe age-based, generation-based, physical appearance-based, gender-based or race/color/ethnicitybased selection criteria for the ad, and further produce all other documents and ESI referencing or relating to IBM’s branding/advertising initiative “THE RISE OF YOU” or “youIBM.” RESPONSE: Defendant asserts its Threshold Objection. Defendant also objects to this request to the extent it seeks documents that are not relevant to the claims or defenses of either party. Defendant further objects to this request as being overly broad in organizational scope and disproportional to the needs of the case, considering the factors set forth in current Rule 26(b)(1), because it is not related to the sales organization of Analytics, which is the group in which Plaintiff was employed. 40 Case 2:17-cv-00409-DSC Document 22 Filed 06/30/17 Page 41 of 41 Fed. R. Civ. P. 37(a)(1) Certificate I, Charles A. Lamberton, certify that I have conferred in good faith with counsel for IBM in three meet and confers, two in person, one on the phone for an hour, and in various emails, in an effort to obtain the requested discovery without court action. s/ Charles A. Lamberton 41 Case 2:17-cv-00409-DSC Document 22-1 Filed 06/30/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ANDREW G. TSOUNOS, Plaintiff, vs. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) Civil Action No. 17-409 Hon. David R. Cercone ORDER AND NOW, upon consideration of Plaintiff’s “Motion to Compel Production of Branding and Culture Evidence,” and Defendant’s opposition thereto, the Court finds that Plaintiff’s motion is well taken and should be GRANTED. Within 14 calendar days of this Order, IBM shall fully and completely respond to Plaintiff’s Interrogatory Nos. 5, 8, 9 and 12, and Plaintiff’s Requests for Production Nos. 23, 4446, 49-55, 60-64, 66, 75-78, 88-92 and 121. IBM’s objections are overruled. BY THE COURT, __________________________________, J.