Thursday, November 2, 2023

Maybe don’t forge texts if you want to win a lawsuit?

Andrea Rossbach, a registered nurse working at Montefiore Medical Center, claimed that her supervisor, Norman Morales, sexually harassed her. In support of her claim, she relied on a series of sexually harassing text messages Morales allegedly sent her, including messages in which he called her "hot," asked her to send him a photo of a G-string he gifted her.

Rossbach's claim, however, had one huge problem — the 2nd Circuit Court of Appeals concluded that those text messages did not exist. She created them after the fact to use as evidence in her claim.

At her deposition, Rossbach testified that she could not produce screen shots of the text messages because she had initially received them on an old iPhone with a badly cracked screen, and that instead she had to take a photo of the texts with a newer iPhone X, which she had also later disposed of. 

In awarding $157,026,27 in sanctions against Rossbach and dismissing her lawsuit, the trial court concluded that Rossbach willfully and intentionally fabricated evidence. It relied on the lack of any visible cracks in the produced photograph, which was inconsistent with Rossbach's testimony as to how the PDF was created. Further, the court also accepted Montefiore's expert's testimony that the PDF lacked any metadata associated with a photograph taken on an iPhone X or even a photo at all, and that the document did not depict text messages as they would appear on any iPhone because of differences in the appearance of icons, contact information, font size, font style, and emoji design.

The 2nd Cir. had little difficulty affirming the totality of the district court's sanctions against Rossbach, concluding that she acted with an intent to deceive and with sufficient bad faith. It called Rossbach's campaign one of "willful fabrication and deception" in which she "willfully and in bad faith fabricated evidence … and attempted to mislead."

No good ever comes from fabricating evidence. Especially in a world of digital breadcrumbs and metadata, you will be discovered, and, as this case illustrates, the consequences will be severe.