Many of us involved in eDiscovery take for granted the belief that metadata is an important part of eDiscovery and should always be collected. However, there is still a lot of push-back from attorneys who think it is a waste of time and effort, mostly because they don’t understand how it can be used in a case. In some cases, like the one described below, it is of paramount importance.
A February 7th, 2017 story written by Debra Cassens Weiss in the ABA Journal points out the importance of metadata. Federal jurors in San Francisco awarded nearly $8 million to a general counsel who claimed that he was fired because he blew the whistle on his company’s potential violation of a foreign bribery law. With additional penalties under Dodd-Frank regarding the doubling of back pay for whistle-blower retaliation, the total amount will rise to $10.8 million.
Sanford Wadler was fired from his post at Bio-Rad in June 2013. He maintained that he was forced out because he originally blew the whistle on potential Foreign Corrupt Practices Act violations by the company in China.
Bio-Rad claimed that Wadler was fired in June 2013 because of erratic work and loud outbursts.
However, there was scant contemporaneous evidence in the files about any negative behavior or outbursts. Wadler’s lawyers at Kerr & Wagstaffe were able to undermine some company testimony by pointing to a lack of documentation about Wadler’s alleged outbursts, partly by repeatedly returning to the last review that Wadler received while on the job in December 2012, which was largely positive.
So how does metadata enter into the equation?
Bio-Rad entered into evidence an additional negative performance review of Wadler which was dated in April 2013, before he was fired. The jury asked the court for clarification about the timing of that evaluation. According to Wagstaffe, the metadata showed the performance evaluation was actually created in July 2013, a full month after Wadler’s termination. The jury asked if if the date refereed to the creation date or its modification. U. S. Magistrate Judge Joseph Spero ruled that it referred to the creation date. Wagstaffe said the metadata evidence helped tip the scale in Wadler’s favor and that the “fake job review was a major piece of evidence that helped tip the scale.
While I am not claiming the metadata is central to every case, it is hard to make that determination at the beginning of the case when eDiscovery is taking place and documents are being produced. For that reason, it is best to request that all metadata be provided in the first instance, because trying to collect it later and marrying it to the existing database is a digital nightmare. It is better to have it and not use it then have to match it up later in the case. An additional note regarding this case is that it is often more important ot look beyond what data is there, and look for information that should be there but is not. This is one of the reasons that lawyers will never be replaced by computers. The ability to reason both with visible fact patterns and misting fact patterns is still something that only.