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Digital Security Expert:

$8 Million Jury Award to Ousted General Counsel Metadata Played a Key Role

Computer Forensics Expert Witness / Digital Forensics Articles

By Scott Greene

 Evidence Solutions

Metadata is everywhere.  It Is Worth $10.8 Million In This Case.

The ABA journal recently reported that Bio-Rad Laboratories, basedin Hercules California will have to pay $10.8 million to Sanford “Sandy” Wadler.  Wadler was fired in 2013. The termination followed his blowing the whistle on the company being involved in a foreign bribery scheme which violated a foreign bribery law.

First Some Definitions:

Metadata:   Metadata is “data about data.” Metadata can be attached or associated with various types of Electronically Stored Information (ESI) including: Document Files, Photos, SMS Messages, Messages, as well as physical items such as CDs and DVDs.

File Dates:
    •    Date Created:   
        o    The date and time that this file was created on this machine, this would include the date downloaded from the Internet.
    •    Date Modified:
        o    The date and the time the file was last modified. This may also include downloading from the Internet. This date normally follows the file around and doesn't change unless the file changes.
    •    Date Accessed:
        o    This is the last date that the file was accessed for reading by the machine or user.

Throughout the litigation, Wadler maintained that he was fired from his position because he reported to the company’s audit committee his allegation that the company was involved in bribery from a company in China.

At issue in this case were documents produced by the company which seemed to indicate that Wadler had received poor job reviews prior to being fired. The job reviews indicated that Wadler had an erratic work ethic and loud outbursts which the company indicated were not conducive to his job. This 2013 job performance review was in stark contrast to his 2012 job review which was mostly positive.

As Wadler had not received his review in 2013 he argued that no such documentation existed. A computer forensics investigation ensued and discovered the Metadata of the document in question.

The company, however, was caught manufacturing information. The job reviews, based upon the metadata, were created more than a month after the company fired Wadler. The proof supplied in this case was the creation date of the job review whose creation date was after Wadler was fired.

The jury panel was keenly interested in the timing of Wadler’s latest performance review and specifically asked about the differences between the document’s creation date versus the modification date.

The jury found the manufacturing of evidence after the fact as well as the whistle blowing to be worthy of punitive damages of $5 million dollars. The federal jury deliberated for less than three hours before rendering its verdict.

The award consisted of $2.9 million in back pay and stock awards.

The back pay and stock options will be doubled due to parameters of the Dodd-Frank Act, plus the $5 million in punitive damages, for a total of $10.8 million. The jury, however, did not award Wadler with any compensation for future losses and emotional distress. Wadler had originally sought $27 million from the company.

Wadler was represented by Kerr & Wagstaffe, based in San Francisco, CA.

“I’m extraordinarily grateful to the jury for its very thoughtful verdict in finding that whistleblowers need protection,” lead attorney James Wagstaffe said after the verdict was read. “You’re not supposed to fault whistleblowers for raising legitimate concerns about potential corruption.”

Bio-Rad's lead lawyer, Quinn Emanuel Urquhart & Sullivan partner John Potter, declined to comment on the outcome. Quinn Emanuel Urquhart & Sullivan is based in Los Angeles California.

The Importance of Metadata:

Most law firms know about metadata and are trained in how to scrub it from documents.

In 2013 metadata was vaulted to be a household term in the United States when the media coverage of the National Security Agency’s (NSA) collection of telephone data included the call times, dates, who initiated the call, the location of the call as well as the number dialed.

Metadata is everywhere! It can be found not only in documents, but in photos, text messages, E-mail, Social Media, Electronic Medical Records (EMR) and Databases. It is also being embedded in CDs and DVDs.

There are times when we, as computer forensics experts, are presented with printed documents which purport to be evidence. Digging into the metadata, however, has shown a completely different story. We have found back dating of computer systems, EMR entries, E-mail and more.

While metadata isn’t key in all cases, it certainly can be key and make a difference in some.

 

By Scott Greene 

 

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