Langley v. International Business Machines Corporation

Filing 185

ORDER GRANTING IN PART AND DENYING IN PART 86 Motion to Compel. Signed by Judge Lee Yeakel. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JONATHAN LANGLEY
VS.
INTERNATIONAL BUSINESS
MACHINES CORPORATION

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NO. A-18-CV-443-LY

ORDER
Before the Court is Plaintiff Langley’s Motion to Compel Requests for Production and
Depositions and for Leave to Exceed Ten Depositions and to Extend the Discovery Period (Dkt. No.
86); IBM’s Response (Dkt. No. 96); Langley’s Reply (Dkt. No. 108); and IBM’s Sur-reply (Dkt. No.
181). The Court held a hearing on the motion on September 4, 2019.
I. Background
This is an age discrimination case. Jonathan Langley was a 24-year employee of IBM who
was terminated in 2017 as part of a reduction in force. He was employed in IBM’s Hybrid Cloud
Group. Langley alleges that IBM terminated him because of his age in violation of the ADEA, and
that this conduct was willful. Langley asserts he was laid off because of IBM’s decision to focus on
hiring younger workers, and to lay off older workers through a number of “reductions in force” to
make room for the new hires. He claims that IBM applied subjective RIF criteria to screen out older
workers, and that he was terminated as a result of these decisions.
Langley moves to compel discovery of executive level communications and documents
which he maintains show a company-wide strategy to lower the age of IBM’s workforce.1 In
addition, Langley requests permission to take apex-level depositions of IBM’s CFO James
Kavanaugh, former CFO Martin Schroeter, and CEO Ginni Rometty. With regard to the document
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The specific requests at issue are Plaintiff’s First Request for Production Nos. 24-27 and
Plaintiff’s Fourth Request for Production Nos. 149-154, and 156.

requests, Langley states that IBM has refused to produce documents unless they relate specifically
to Langley and the “CLDR” resource action, which is the identifier that IBM’s human resources
department gave the reduction in force that included Langley. Langley maintains that CLDR is a
fictional entity, and was created by IBM’s resource action specialists to group IBM workers in such
a way as to make the layoffs appear less obviously age-based than they were. He thus contends that
document discovery should not be limited as IBM contends, and urges the Court to order IBM to
produce documents based on the parameters contained in the subject RFPs. Langley further contends
that he is entitled to take the depositions of the three executives based on public statements made by
them indicating what he contends is an age-based bias, and to determine if they participated in the
decisionmaking leading to the layoffs. Because taking these depositions would exceed the maximum
of ten allowed by the Federal Rules, and because they involve high level executives, Langley seeks
permission from the Court to take the depositions, and a 90-day extension of the discovery period
to conduct the depositions.
IBM opposes all of these requests. It argues it has turned over all responsive and relevant
documents in compliance with this Court’s prior orders, and has made the leadership of the Hybrid
Cloud Group available for depositions. IBM notes that Langley has either declined to depose these
individuals or, for those he did depose, he failed to question them about the same matters he now
seeks to inquire about at the apex depositions. IBM states that its high level executives have no
personal knowledge of, nor did they have any personal involvement in, Langley’s termination or the
CLDR action that led to Langley’s termination. IBM maintains that the decision to conduct the
CLDR resource action was a decision made solely by the Hybrid Cloud Group’s management, and
the executives Langley wishes to depose and obtain documents from played no part in that decision.

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II. Relevant Standard
Under Rule 34, a party may request that any other party produce any designated documents
or electronically stored information in the responding party’s possession, custody, or control. FED.
R. CIV. P. 34(a)(1)(B). If a party fails to produce documents requested under Rule 34, the requesting
party may move under Rule 37 for an order compelling production. FED. R. CIV. P. 37(a)(3)(B)(iv).
A party that opposes the Rule 34 request must “state with specificity the grounds for objecting to the
request, including the reasons.” FED. R. CIV. P. 34(a)(2)(B); Walters v. Sentry Link, LLC, 2018 WL
837611, at *3 (W.D. Tex. Feb. 9, 2018) (“The party resisting discovery must show specifically how
each discovery request is not relevant or otherwise objectionable.”) (citing McLeod, Alexander,
Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)). Rule 26(b)(1) sets out the
scope of permissible discovery, stating that:
[p]arties may obtain discovery regarding any nonprivileged 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. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1). If the Court determines that proposed discovery is outside this scope, the
Court “must limit the frequency or extent of discovery otherwise allowed by these rules[.]” FED. R.
CIV. P. 26(b)(2)(C)(iii). “Trial courts are afforded substantial discretion in determining whether to
grant or deny a motion to compel discovery.” Escamilla v. United States, No. 14-246, 2015 WL
12732889, at *2 (W.D. Tex. Apr. 13, 2015).
III. Analysis
This is the third instance in which the Court has been forced to address the proper scope of
discovery for this case. Because IBM took the initial position that Langley was only entitled to

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discovery that pertained to his four-person team, early in the case the Court granted Langley’s motion
to compel, and took an initial stab at identifying how broad the discovery in the case should be. Dkt.
No. 52. Admitting that its “understanding of IBM’s structure is rudimentary at this stage of the case,
and is based primarily on the information provided by IBM’s counsel at the hearing,” the Court’s
conclusion then was
that discovery at the level of the Hybrid Cloud Group is reasonably likely to lead to
the discovery of admissible evidence. Accordingly, the Court will direct IBM to
produce documents from within that group responsive to Langley’s requests for
production. Further . . . at this time the Court will limit discovery to the “resource
action” of which Langley’s termination was a part.
Id. at 3-4. The Court added “an important caveat:”
The fact that IBM has chopped itself into bits and pieces for organizational purposes
does not mean that discovery must remain similarly organized. The scope of
discovery set by Rule 26 is not constrained by artificial borders created within a
corporation. What matters is not whether any responsive document comes from the
records of any particular division but whether it is relevant to a claim or defense in
the case, and whether the discovery is proportionate to the needs of the case. Thus,
while the Court is using IBM’s structure at this point as a rough proxy for what it
views to be an appropriate limit on IBM’s search for responsive documents, the
parties should not take this as an absolute prohibition on requesting discovery of
items that might be outside of the Hybrid Cloud Group. As discovery progresses,
information may be learned that justifies going outside the organization for targeted
inquiries.
Id.
IBM quickly pushed back, filing a Motion for Clarification asking the Court to more
narrowly circumscribe the breadth of the discovery, and suggesting that the Court had misunderstood
the structure of the company. The Court summarily denied the motion, stating that it understood
well what was presented to it. It added yet another admonition:
Finally, the Court reminds IBM of the “caveat” the Court added at the end of its order
on the motion to compel, and suggests that IBM re-read that paragraph and take it to
heart. IBM’s internal structure is a creation of IBM. It is only one of many factors the
Court will consider in determining the scope of discovery. And because the structure
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is a creation of IBM, the Court will look with a jaundiced eye at arguments
suggesting that discovery must somehow align with—and more importantly, be
limited by—that structure.
Dkt. No. 75 at 2.
It is thus with a great deal of frustration that the Court is presented with yet another argument
that discovery should be cabined based on an arbitrary boundary IBM created. This time it is
something termed “CLDR.” As noted, in its initial attempt to define the scope of discovery, the
Court required that IBM produce documents from the Hybrid Cloud Group related to “the ‘resource
action’ of which Langley’s termination was a part.” Dkt. No. 52 at 3. At that time, there had been
no dispute about what the relevant “resource action” was, and the Court assumed—quite
wrongly—that there could be no dispute about that, because at that time the Court understood that
the reduction in force had been company wide. As it turns out, nothing is this straightforward with
IBM.
Rather than describe this itself, the Court will quote from IBM’s declarant on this point, the
“Resource Manager” in the “Project Office” that—as best the Court can tell—administered all of
IBM’s layoffs in the United States:
Once the funding for a resource action is authorized, the Project Office works with
the various business units participating in the action to administer the action. My
team assigns each resource action a four-letter acronym that we use to define the
action and track its execution. Thus, the acronym that we assign is based on the
business unit that is undertaking the resource action.
We assigned the CLDR acronym to the first quarter 2017 resource action in the
Hybrid Cloud group that affected the former Cloud group. We made this assignment
in February of 2017.
Mr. Cowley’s Cloud Worldwide Sales unit [under which Langley’s team was
organized] is one of the former Cloud group units that reduced headcount in the
CLDR resource action. Not all units within the former Cloud group reduced
headcount in the CLDR resource action.

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Dkt. No. 96-4 at 2 (emphasis added). Complicating matters further, the Hybrid Cloud Group was
created only shortly before the layoffs that impacted Langley. As explained by the former head of
the Hybrid Cloud Group, that entity “was formed as a separate business group in early 2017. The
Cloud group . . . and the Analytics group . . . were combined to form the Hybrid Cloud group. Some
of the sub-units that had been within the Cloud group moved to the Watson and Cloud Platforms
group.” Dkt. No. 96-5 at 2. But this took place before the February 2017 layoffs, so that at the time
he was laid off, Langley worked in the Hybrid Cloud Group. Regardless, combining the just-quoted
statements from the IBM witnesses, and focusing particularly on the italicized statement, it appears
that the employees grouped in CLDR were only the employees who had been in the then-defunct
Cloud group that were considered for the layoff that included Langley, and did not include other
employees in the Hybrid Cloud Group who were potentially within the scope of the Hybrid Cloud
layoffs in 2017. And that is only one discrepancy. Langley has noted here and in his summary
judgment briefing that the CLDR employee group does not align with other IBM employee lists that
purport to identify employees from the same groups that allegedly comprised the CLDR. All of
which is to say that IBM’s insistence that it need only produce documents related to the CLDR
resource action is highly suspect.2
Thus, the Court rejects the notion that the production of documents should be limited to those
relating to the CLDR layoff. IBM has been given many opportunities to provide a reasonable means
by which to define the universe of relevance for this case, and has failed each time. The Court will
therefore adopt the word search method proposed by Langley in the RFPs at issue here. The Court
also rejects IBM’s argument that document production from its executives is not warranted. IBM

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As noted at the end of the recent hearing, it is particularly vexing that none of this
information was presented to the Court in January, when IBM was asking that the Court limit
discovery based on IBM’s structure and the layoff that Langley was part of.
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is correct that requiring production of records from senior executives is appropriate only where there
is “a sufficient showing that this information is necessary and not cumulative of other materials.”
Harris v. Union Pac. R.R. Co., 2018 WL 2729131, at *4 (D. Neb. June 6, 2018). Further, while it
is sometimes appropriate for the producing party “to select the custodians most likely to possess
responsive information,” the requesting party is entitled to insist on others if it “establishes the
relevance of the documents it seeks from those custodians.” See Mortg. Resolution Servicing, LLC
v. JPMorgan Chase Bank, 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017). Langley has done
so here. The numerous public statements by IBM’s CEO that can easily be read to suggest that IBM
needed to replace older workers with Millenials, combined with other public statements suggesting
that in the past five years IBM has replaced half of its 350,000 person workforce with young
employees, is more than enough to meet this burden. Accordingly, the Court GRANTS Langley’s
Motion to Compel Requests for Production, and ORDERS IBM to respond to RFPs Nos. 24-27,
149-154, and 156, within twenty days of the date of this Order, or another date acceptable to all
parties.
The situation is different with regard to the apex depositions. “Federal courts permit the
depositions of high-level executives, sometimes referred to as apex executives, when conduct and
knowledge at the highest levels of the corporation are relevant to the case.” Gaedeke Holdings VII,
Ltd. v. Mills, No. 2015 WL 3539658, at *3 (N.D. Tex. June 5, 2015). A district court has authority
to prevent or alter apex depositions under the Federal Rules to avoid duplication, harassment, and
burdensomeness.” Schmidt v. Goodyear Tire & Rubber Co., 2003 WL 27375845 (E.D. Tex. Jan. 13,
2003). “One long-established factor considered by courts in determining whether an apex deposition
should be taken is whether the individual has unique personal knowledge of the matter in the case.”
Id. As noted at the hearing, the Court does not believe Langley has met his burden in demonstrating
an entitlement to these depositions. Not only does it not yet appear that the CEO, CFO or former
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CFO have “unique” information relevant to his claims, it also appears that Langley can obtain the
same information these witnesses may have from other sources. The Court will therefore DENY
Langley’s motion to the extent it seeks permission to take these three depositions.
Finally, Langley requests an extension of the discovery deadline. It appears that the primary
purpose of that request was to permit the apex depositions that the Court has declined to allow. The
request may therefore be moot. To the extent it is not, the Court notes the following. An extension
of the discovery deadline is analyzed under the good cause standard of FED. R. CIV. P. 16(b)(4),
which directs the court to consider: (1) the explanation for not meeting the deadline; (2) the
importance of the discovery; (3) the potential prejudice in allowing the extension and (4) the
availability of a continuance to cure such prejudice.” S & W Enters., L.L.C. v. South Trust Bank of
Ala., N.A., 315 F.3d 533, 536 (5th Cir. 2003). “The ‘good cause’ standard focuses on the diligence
of the party seeking to modify the scheduling order.” Cut-Heal Animal Care Prods., Inc. v.
Agri-Sales Assocs., Inc., 2009 WL 305994, at *1 (N.D. Tex. Feb. 9, 2009). As is clear from the
above, Langley has been diligent in attempting to obtain the document discovery, and has been
thwarted by IBM’s too-narrow view of what is relevant to this case, and refusal to produce records.
Thus, to the extent an extension of the discovery deadline is required to complete the discovery
permitted herein, it is GRANTED.
IV. Order
For the reasons stated, Langley’s Motion to Compel Requests for Production and Depositions
and for Leave to Exceed Ten Depositions and to Extend the Discovery Period (Dkt. No. 86) is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to the requests for
production, and IBM is ORDERED to respond to RFPs Nos. 24-27, 149-154, and 156, within
twenty days of the date of this Order, or another date acceptable to all parties. The motion is
DENIED to the extent it seeks permission to take the apex depositions, and to exceed 10
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depositions. Finally, the motion is GRANTED with regard to the extension of the discovery
deadline, and the deadline is hereby EXTENDED for the time period required to complete the
discovery permitted herein.
SIGNED this 20th day of September, 2019.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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