IBM Japan: the interrogatories

Earlier this week I served interrogatories on IBM USA and its Japan affiliate, IBM Japan, Ltd. This is to determine who the “John Doe” in the case is. As regular readers may recall, the action has three separate counts:

1) a Title VII/ADEA claim
2) a violation of Japanese labor law / breach of contract claim
3) a New York tortious interference with contractual relations claim

(Yes, you read it right. That’s the Year 2008. Calendar courtesy of timeanddate.com.)

The facts are straightforward: On February 25, I agreed to a position with Cognos K.K. that was a contract with an “initial period”–so in some sense, an initial term limit. On March 7, upon the firing of Cognos K.K.’s controller, I was offered and accepted an entirely different job with Cognos K.K.—and one with no end date. This is referred to being employed as “sei sha’in“.

Not having the end date was very specific to the agreement, and I have three proofs that the role was not a term-limited one.

Now, in late April, management in IBM Japan compelled me to sign another agreement—a term-limited one with IBM Japan, to be effective May 1, 2008. Among other tactics was to say that I wasn’t going to be paid without that contract, and that I wouldn’t get the work equipment I needed to do the Cognos job. This later contract said nothing about the employment agreement I already had with Cognos.

Inevitably, the IBM Japan employment ended. And, mysteriously, the Cognos K.K. sei sha’in employment disappeared, too!

It should be clear that the IBM Japan overlay contract was put there to camouflage the fact that there was the prior deal with Cognos K.K. And the inordinate delays that IBM has sought in answering basic questions about the events on that calendar is doubly evidence that anyone analyzing the situation would feel that something is wrong.

The first two counts have already been objected to by the IBM parties, in October, and consideration of their various (11 or so) objections is, as they say, sub judice. The remaining piece is to identify who the John/Jane Doe(s) decision maker(s) were. It’s not as easy from this end as it sounds, because the actual breach arguably did not occur until January 31, 2009—that is, until there was no job held out for me within the Cognos office.

Who made that decision? This is what is going to get found out.

From my reading, (and, if you are a lawyer, please do your own homework!), it is not easy to prove tortious interference with contract in New York. The elements are the same as in the Restatement (Second) Torts, section 766, but you must also show intent and show there was no recognized justification. As it just stands now, showing no justification would be easy, because the IBM attorney is pretending that Cognos was not related to IBM USA, even though IBM bought Cognos on February 1 of that year. So if Cognos stands as its own company, then an IBM Japan manager, IBM USA, would have absolutely no justification. And if it turns out that IBM USA finally admits that yes, it is a single enterprise when it comes to this decision, then there still may be no justification to interfere, because Japanese law governs the labor relationship. There is no way to tell which without knowing.

Intent to breach is also key. Longtime readers may remember how IBM used “mistake” and “misunderstanding” to persuade the EEOC not to pursue its administrative charge. They suggested that if the EEOC alleged discrimination, IBM could say that the whole job ending and contract differences had really just been a mistake. (But not a mistake where IBM pays for the damage! Neat trick, huh? They breach, I lose.)

The issue now is that intent to breach really is the same as intent to end the employment within Cognos. The other side really can’t say, “oops, mistake!” So the circle is really completed, which is why I feel the Judge very quickly gave me the permission to propound formal interrogatories, and why Paul Hastings continues to decline to dialogue.

April 8th or so is the next key date, unless the Judge rules on the pending motions.

[Update: Why this all continues to be a big thing is, as Japan-side readers may know, an unlawful denial of a regular employment position means that the employer is liable for pay, for each period that the employee was denied the job. Thirty-eight months, something like 38 million yen now, and counting.]

[Update 3/11/12: I did get a comment on this one, but it came to me through a Tor (anonymizer) connection, which is the kind of thing that can end up in the Akismet spam filter. Unfortunately, I can't reply to the person, since they didn't leave e-mail. But all the questions are of course answerable, and we wouldn't be at this stage if they weren't. Using Tor for certain things has its purpose, if you are in a country where the police will knock on the door in the middle of the night for using the internet to express your political beliefs. If you want just to be an internet snark, though, maybe not, right? I understand that Tor is a factor in Arena v. Doe, by the way, and only so many people in the tight Japan-issue blogger community use it. You know?]