Drinker Biddle Shuts Down Whistleblower Defense in 7 Days with Relativity
A Whistle is Blown
When a senior executive for a publicly traded company was fired for underperformance, he made a serious allegation on his way out the door—claiming he was fired because of his repeated attempts to inform officials that the company was falsifying quarterly financial reports to the public.
In many cases, a formal complaint like this would kick off a long list of tasks for the company, including waiting for a lawyer to send them a demand letter, gearing up for defense, coaxing out the facts as knowledge evolves, and possibly settling the case before even getting to the truth. Drinker Biddle, however—knowing they had the right solution to quickly examine the facts—immediately began an internal investigation for the company to help them figure out exactly what happened and decide how to handle it.
“It’s incredibly unjust for companies to pay a settlement if they’re unsure that a claim has merit simply because they don’t have the money or the resources to investigate it properly.”
BENNETT BORDEN, Chief Data Scientist and Partner
“It’s incredibly unjust for companies to pay a settlement if they’re unsure that a claim has merit simply because they don’t have the money or the resources to investigate it properly,” said Bennett Borden, chief data scientist and partner at Drinker Biddle.
The Drinker Biddle team set to work straightaway, pulling the email box contents for the former executive, his peers, superiors, and direct reports, loading data into Relativity, exploring the evidence, and using granular tagging and coding designations to organize the information and track the story as it unfolded.
And by “Whistleblower” We Mean “Extortionist”
Days one through three of this matter were dedicated to unraveling the facts, which meant digging through one million emails and thousands of complex financial reports they didn’t yet know existed.
Starting with the former executive’s performance appraisals, an organizational chart, and a couple of emails that favored the former executive’s position, the team found references to weekly meetings the former executive had had with his boss to bring up the accounting issues. Armed with key words and phrases found in the meeting agendas and presentation files, they ran keyword expansion, a feature of Relativity Analytics, to find new paths of investigation based on those terms.
“It reminded me of playing a game of Minesweeper. Our team would find a flag, and it would open up a whole new area, expanding our picture,” said Bennett.
“It reminded me of playing a game of Minesweeper. Our team would find a flag, and it would open up a whole new area, expanding our picture.”
As they reviewed documents, they built a timeline. And after they had Relativity Analytics form clusters of conceptually related content to help them prioritize their review, they layered responsiveness designations on top of the clusters which showed them where they could dig into new areas of intelligence. This workflow allowed Drinker Biddle to uncover who was speaking with whom, when, and why.
The team discovered that the former executive had been emailing his wife—an employment attorney— using his personal email account about how to create convincing evidence supporting his allegations. When Drinker Biddle got access to his personal emails—which he had forwarded to his work account—it appeared his wife had been giving him advice on how to put together evidence of a whistleblower claim, including email templates he could use to send to the company’s compliance officer to leave a falsified history of reporting the accounting issues to company officials.
Next, the Drinker Biddle team looked at the emails in the former executive’s draft email folder. Sure enough, the former executive had been putting together email drafts for the compliance officer before the company’s quarterly financial reports were even published. He would plug in the actual numbers once the financials were reported and click send.
The motive? According to the company’s policy, two poor performance evaluations in a row meant termination. The former executive had already received one poor performance evaluation, and saw the writing on the wall. So, he spent the next year falsifying a whistleblower defense that he could use to get a severance package or a settlement in the event he did get fired.
By day 4, Drinker Biddle had all the facts down, and could prove with certainty that the former executive had fabricated his whistleblower claim.
That Moment When Your e-Discovery Work Gets Opposing Counsel to Drop the Case
By now, the Drinker Biddle team had complete mastery of the facts and presented the former executive’s attorney with the evidence they found.
“This early on, plaintiff’s counsel will always believe you’re posturing,” said Bennett. “When we showed him we had absolute evidence that this complaint was not only fabricated, but that we could build an extortion case against his client, there was no argument left to him.”
The team received a response shortly after the presentation that the former executive’s attorney had dropped the case.
Defending the Company’s Financial Reports
Though they proved the former executive’s evidence was fabricated, there was still a big job ahead: proving to the outside auditors that the company’s financial reporting was accurate. The next two days were dedicated to tracking down the company’s actual accounting to confirm accuracy, using the same workflows in Relativity—identifying the relevant documents, putting together a narrative report of the timeline, and having the client's finance team and auditors review the information.
On day 7, Drinker Biddle proved there were no accounting irregularities in a presentation to the company’s CEO, its board of directors, and the outside auditor—eliminating the need to conduct a costly independent financial audit.
Stopped in Its Tracks
Because the former executive had been preparing his falsified defense before he was fired, he had an attorney ready to go, and the complaint was moving quickly. Drinker Biddle’s decision to get ahead of the evidence and start with the investigation—rather than waiting for the typical, plodding pace of discovery to unfold or moving to settlement—meant they had the strategic advantage of certainty at the very beginning.
“Once a complaint is filed in court, it’s not going away easily, so you might as well start investigating the evidence to figure out where your client stands before you get into all the usual inefficient and wasteful discovery.”
“Once a complaint is filed in court, it’s not going away easily, so you might as well start investigating the evidence to figure out where your client stands before you get into all the usual inefficient and wasteful discovery,” said Bennett.
The client spent $80,000 on the investigation, and within a week of getting the data, they knew exactly what happened. If the team had followed a traditional approach for discovery, they would have invested their time and resources focused on discovery requests, objections, document productions, and depositions. Or worse, move right to settlement. Drinker Biddle estimates they could have spent a quarter of a million dollars conducting a traditional e-discovery review, and an additional six figures on a financial audit to confirm the accuracy of their client’s quarterly reports.
“We were dealing with a really clever plaintiff—most companies would have settled because they don’t know how to get to the truth,” said Bennett. “Relativity helps us organize all the streams of evidence and provides the analytics capabilities we need to conduct an intelligent investigation, fast. Having mastery of the facts, with certainty, changes the game entirely.”
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