This is a rare case law post with pictures to illustrate the issues and was recommended to me for coverage by several people, including Tom O’Connor and Judge Peck. In Rossbach v. Montefiore Med. Ctr., No. 19cv5758 (DLC) (S.D.N.Y. Aug. 5, 2021), New York District Judge Denise Cote, based on “clear and convincing evidence” of the plaintiff’s fabrication of an image of a text exchange between her and her supervisor, dismissed the action “with prejudice as an exercise of its inherent power to sanction and pursuant to Fed. R. Civ. P. 37(e).” A monetary sanction in the amount of the defendants’ attorneys’ fees, costs, and expenses associated with addressing the plaintiff’s fabrication was also assessed jointly and severally against the plaintiff and her counsel.

Case Background

In this employment discrimination case involving claims of sexual harassment and wrongful termination, the primary piece of documentary evidence supporting the plaintiff’s allegation that she was sexually harassed by her supervisor (Morales) was this image that purported to depict a series of text messages sent by Morales to Rossbach.

To the bottom of which Judge Cote added this statement: “This image is a fabrication.”

The image was produced to the defendants twice, first as a PDF and then as JPEG file.  The plaintiff claimed she received the messages on her iPhone 5, but because the phone was so damaged (with a cracked screen and ink bleed, among other issues) she claimed she couldn’t take a screenshot of the message from the phone itself. So, she claimed that she took a picture of the text message exchange on the iPhone 5 screen using an iPhone X, but the image did not show any screen cracks or ink bleed to back up the plaintiff’s story.  The image also lacked metadata typically associated with a picture from an iPhone X and additional analysis illustrated that it was not a photograph at all.

The image also did not depict text messages as they would appear on an iPhone 5, which only supports up to iOS version 10.  The inconsistent characteristics included: the icon depicting the phone’s level of battery charge; the font size and style in the header; the icons in the lower portion of the header; the design of a “heart eyes” emoji in the purported message from Morales to Rossbach…and the icon for the iMessage Apps feature in the footer.  As Judge Cote noted in the notes: “The ‘heart eyes’ emoji depicted in the image is the version displayed on iPhones running OS 13 or later. Because the visual characteristics of a text message displayed on an iPhone depend on the iPhone’s OS, this version of the emoji is not displayed on iPhones running OS 10, even if the text message is sent from an iPhone running OS 13 or later to an iPhone running OS 10. As noted above, the iPhone 5 is not capable of running OS 13.”

Here are the differences between versions of the “heart eyes” emoji (courtesy of Emojipedia):

On March 15, 2021, the defendants sought leave to move to dismiss Rossbach’s remaining claims with prejudice and for sanctions against Rossbach and her counsel for fabrication of evidence.  In a March 19 Declaration, submitted after the defendants notified the plaintiff that they were contesting the authenticity of the text messages, the plaintiff changed her explanation of the state of her iPhone 5. She claimed that in March 2020, she sought to recover the text messages from Morales stored on her moribund iPhone 5, and that she attempted to take a screen shot of the text messages but was unable to do so because the iPhone 5’s screen was broken and flickered erratically. Instead, she placed a finger on the screen of the iPhone 5 to prevent it from flickering and used the camera feature of her iPhone X to take a picture of the screen of her iPhone 5 at a moment when the screen was not flickering.  In the same declaration, the plaintiff also stated that she turned in her iPhone X after it began to malfunction and didn’t preserve any data from it.  She did provide the iPhone 5 for forensic examination, but the passcode she provided to open the phone was incorrect.

Judge’s Ruling

Judge Cote described next steps as follows: “On April 22, the Court held an evidentiary hearing regarding the allegations of fabrication of evidence…Daniel L. Regard II and Joseph Caruso testified as forensic experts for the defendants and Rossbach, respectively, and Rossbach also testified. The Court received the expert reports of Regard and Caruso as their direct testimony, and they were subject to cross examination regarding that testimony at the hearing. Rossbach was subject to both direct and cross examination at the hearing. At the conclusion of the hearing, the Court found by clear and convincing evidence that Rossbach had fabricated the disputed text message evidence and had given false testimony about how the evidence had been produced. As a result, the defendants’ request to move to dismiss and for sanctions was granted.”

Considering monetary sanctions for plaintiff’s counsel on top of case dismissal, Judge Cote added: “In short, at every step of these proceedings, Altaras failed to take reasonable steps to preserve critical evidence and failed to recognize the gravity of his client’s misconduct and its implications for his own duties. He instead burdened the defendants and this Court by suborning his client’s perjury and making frivolous and procedurally improper legal and factual arguments. A monetary sanction against Altaras and DSLG is warranted…and the Court imposes a monetary sanction under its inherent power and § 1927. As with the monetary sanction against Rossbach, the monetary sanction shall be in the amount of the defendants’ attorneys’ fees, costs, and expenses associated with addressing Rossbach’s misconduct.”

So, what do you think?  Should plaintiff’s counsel have shared in the monetary sanctions due to the plaintiff’s fabrication of evidence?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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