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#CaseoftheWeek Episode 37: Sanctions Due to Fabrication of Text Messages

We are back from ILTACON 2021 and ready for all new episodes of #CaseoftheWeek. In Episode 37, eDiscovery Assistant Founder and CEO, Kelly Twigger discusses when a forensic expert can identify fabricated text messages by knowing the way data appears on specific versions of the iPhone. The case we are analyzing is Rossbach v. Montefiore Med. Ctr., 2021 WL 3421569 (S.D.N.Y. 2021), August 5, 2021. The case was presided over by United States District Judge Denise Cote of the Southern District of New York.


Good morning and welcome to our #CaseoftheWeek for August 31, 2021. My name is Kelly Twigger. I am the CEO and founder of the eDiscovery Assistant and the principal at ESI Attorneys. Thanks so much for joining me this week.

I want to start this week by sending out our best to all of those affected by Hurricane Ida. We have many friends and colleagues in the area, including a member of our team at eDiscovery Assistant. Most of them have had to evacuate given the loss of power. You are all in our thoughts and prayers, and we hope that things are able to recover quickly.

There are numerous other issues going on in the world between the ongoing pandemic, exiting Afghanistan, people still unable to pay their bills. We send all of our best thoughts and prayers to all of you who are suffering at this time.

Through our partnership with ACEDS, each week we choose a recent decision in eDiscovery that highlights key issues for litigators and those involved in the eDiscovery process. We talk about the practical implications of that decision for you, your practice, and for your clients.

There is a link to the case, the public link that appears on eDiscovery Assistant to today’s decision, in the comment section on whatever platform you’re viewing us on, whether that be LinkedIn, YouTube, Facebook, or Twitter. You’ll also see a link to our 2020 eDiscovery Assistant Case Law Report, which walks through some dynamics of the cases that came about in 2020. We’re on a record pace for additional cases this year, with just over 2000 cases already in 2021.

We also invite you to check out our recently updated website at ediscoveryassistant.com and to sign up for our blog at eDiscoveryAssistant.com/blog, where you can receive our weekly Case Law newsletter, including the transcript and video of this #CaseoftheWeek podcast or video cast, I should say, as well as our regular blog posts about all things eDiscovery.

We’re continuing our posts about ESI protocols, and I’m excited for some new topics that came up while I was at ILTA last week. It was great to be back in person with some folks at ILTA last week. Also still a little scary with conditions going on in the pandemic, and we hope to be able to be with some of our friends again soon.

All right, let’s get into this week’s case. Our decision this week comes from the case of Rossbach v. Montefiore Med. Ctr. This is a case in the Southern District of New York, and this decision is from Judge Denise Cote on August 5th of 2021.

As I mentioned, the link is available to you in the comments section to be able to read the opinion. I think it’s worth reading, particularly because the Court goes through a real breakdown on the facts here. That’s what’s important to the analysis. We talk regularly on #CaseoftheWeek about how the facts of the specific decision really are what gear the analysis. It’s very difficult in eDiscovery to take one case and really analogize it to your particular situation without paying specific attention to the facts, because just one little change in the facts can alter the analysis dramatically.

What happened here? Plaintiff filed a complaint in June of 2019 alleging a campaign of sexual harassment against her by her supervisor and a subsequent retaliation after she complained, which led to her termination. On summary judgment, the Court dismissed the retaliation claims, but the harassment claims remained.

The issue that we’re looking at today is where the plaintiff alleged that her supervisor subjected her to a series of unwanted sexual comments and sexual touching. In fact, the plaintiff never made a formal complaint. Other than what we’re we’re going to look at today, there was very little documented evidence to support her claims.

Now, I just want to be clear before we go on that my recitation of the facts here today, and what occurs in this particular case, is in no way any sort of bearing on my opinions regarding sexual harassment. It’s a real problem in the world, and in this particular case there were some real issues that undermined the plaintiff’s case. But my discussion today is in no way of commentary on whether or not the allegations here were true.

We are before the Court in this decision on a motion for sanctions. The defendant here alleged that forensic analysis of evidence produced by the plaintiff showed that it was fabricated and that the plaintiff spoliated evidence, as well as committing perjury at her deposition regarding the fabrication of the evidence, and her lack of preservation of multiple mobile devices. The overriding issue with the plaintiff’s evidence in this case are really those inconsistencies in her testimony and the evidence regarding the preservation of her iPhone 5, which is the first mobile device that she had at the time of the alleged text messages that are at the core of this case, and her subsequent iPhone X that she bought to replace the iPhone 5.

Now, if you’re an iPhone user or a mobile device user, you know that the difference between five iterations of a device means that there were tremendous technological developments between the time the iPhone 5 existed and the time the iPhone X came out. In this particular case, the plaintiff alleged that she received text messages from her supervisor on the iPhone 5, but that subsequently the screen on her iPhone 5 became cracked and it developed an ink bleed on the screen, making it impossible to view text messages. She then kept the iPhone 5 and a drawer, but was not able to transfer the data to her iPhone X. That’s important, because if you know when you log back into your iCloud account, if you have a saved iCloud backup on an older phone, you log back into a new phone, you can download that existing content onto your phone, and you’ll have all previous text messages. But she was not able, according to her testimony, to transfer the data from her iPhone 5 to the iPhone X. That’s issue number one.

She then did keep the iPhone 5 in a drawer. She did preserve that mobile device. At her deposition, the plaintiff testified that she used her iPhone X to take a picture of the text messages from her supervisor on the iPhone 5. But when the defendant challenged the authenticity of the image that the plaintiff provided, she then changed her story. She stated that she attempted to take a screenshot of the text messages on the iPhone 5, but was unable to do so because the iPhone 5 screen was broken and flickered erratically. She said that instead, she placed a finger on the screen of the iPhone 5 to prevent it from flickering and use the camera feature of her iPhone X to take a picture of the screen of the iPhone 5 at a moment when the screen was not flickering. She then used the iPhone X to send the photograph to her counsel, who produced it to the defendant’s counsel.

The new evidence of whatever picture was taken and associated metadata now rest supposedly on the iPhone X. Right? We still have the iPhone 5. The question is where the evidence is from the iPhone X. But when the image is produced, and I’m going to show it to you here in just a minute, it does not show any signs of a cracked screen, any ink bleed, any flickering or the plaintiff’s finger. Another time, plaintiff suddenly claimed that the iPhone X started to malfunction, and she took it back to the store where she was told it could not be repaired. She then disposed of the iPhone X, which is the device that would have had the photograph and any appropriate metadata with the photograph, and did not keep a copy of the data so the defendant was unable to examine the iPhone X or any of its content.

With regard to the iPhone 5, though, the plaintiff did provide that phone for forensic examination to the defendants. However, the passcode that she provided did not work so the defendant was not able to conduct a forensic examination of that iPhone 5. A visual inspection of the iPhone 5 did reveal that the screen was, in fact, cracked, but there was no ink bleed or or flickering of the screen, as the plaintiff had alleged.

Let me jump here and show you the key image that was at issue here. You’ll see this image in the actual link to the case.

All right. You can see the image that’s here. This is allegedly the text messages that were sent from the plaintiff’s supervisor to the plaintiff making the comments that were the basis for plaintiff’s sexual harassment claims. Now, what about this image was problematic?

The Court really looks at this particular situation after the defendant’s conducted an analysis of the image, and there were multiple reasons that this image, which purported to display text messages, was fabricated. First of all, as you can see from it, there are no cracks on the screen of the image or any ink bleed or any photograph of the plaintiff’s finger at all.

Secondly, the Court indicated that the plaintiff’s testimony regarding the image changed materially over time. Her credibility regarding the existence of the image and this being a true and, in fact, actual depiction of text messages from her supervisor was not credible.

The Court also found that the image “lacked the characteristic metadata attached to photographs taken with the iPhone X.” Once you look at the images, color characteristics, and a visual assessment of the image shows that it’s not really a photograph at all.

The image does not depict text messages as they would have appeared on an iPhone 5. The forensic examiner looked at the specific image and said, “look, this image that you’re looking at here on the screen contains fonts and icons that would not have been available on the last operating system that was available for the iPhone 5, including the battery icon, font size and style, and the header icons and a lower portion of the header, the design of the heart eyes emoji and the icon for the iMessage apps feature in the footer.” That was all based on an analysis from an expert who was very familiar with various iterations of the iPhone and what was available on those individual operating systems to be able to create content. Essentially, we’re looking at this here and we’re saying, “look, Norman Morales is the name up at the top.” Normally, that would only have just the first name. Look at your text messages on your iPhone. You’ll see that all of your senders only have really the first name up here. This heart eyes emoji was not available for use on the iPhone 5. And then there are multiple other issues associated with the presentation of that image, which suggests that it was not at all on an iPhone 5.

There’s also less evidence to substantiate that, in fact, the plaintiff actually did take that picture with the iPhone X. But since the plaintiff got rid of the iPhone X, there’s absolutely no way for the defendants to be able to substantiate that that image actually existed or that there was metadata associated with it that would approve its authenticity.

Based on that evidence, the Court found that the image that was purporting to show the text messages was fabricated. Then the Court looked at the issue of sanctions.

I’m going to stop that display and let’s talk a little bit about what the sanctions the Court looked at. The Court here addressed the availability of sanctions under two different things. First, under its inherent power under 28 U.S.C. § 1927, as well as under Rule 37(e) of the Federal Rules of Civil Procedure. 28 U.S.C. § 1927 provides for sanctions against an attorney who is admitted to conduct cases in any court of the United States “who so multiplies the proceedings in any case, unreasonably and vexatiously may be required by the Court to satisfy personally the excess costs, expenses, and attorney fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927 is sanctions against plaintiff’s counsel and plaintiff’s counsel’s firm.

37(e), as we’ve talked about multiple times on #CaseoftheWeek, provides for dismissal as a sanction when ESI that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and that party acted with the intent to deprive another party of that information. That intent to deprive is what is key under Rule 37(e). We’ve had other situations where that intent to deprive has not been able to be shown and dismissal is not a routine sanction. It is a rare sanction, but it is one that the Court found here was appropriate.

Looking at these two sections, the Court found that dismissal was warranted, “as an exercise of this Court’s inherent power to sanction and deter fraud on the Court.” The Court found that there was absolutely no question that the evidence was fabricated and that the plaintiff engaged in, “an unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the action.”

The Court also found that at a lesser sanction, such as a monetary sanction, exclusion of evidence, or an appropriate instruction to the jury trial, would be insufficient to remedy the impact of this misconduct or to deter future misconduct. That deterrence, I think, is really a huge issue here. These courts want to deter this behavior.

The creation or fabrication of electronic evidence is easy to do. It’s easy to create an image like the one that was created in this particular case, using simple, off the shelf, sometimes free tools.  The courts need to be able to have a remedy to deter that conduct and here that remedy is dismissal.

The Court also imposed monetary sanctions on the plaintiff, and her counsel, and the law firm, stating that counsel negligently or recklessly failed to perform his responsibilities as an officer of the Court. This is really key. I mean, we don’t see a lot of instances where the counsel are sanctioned in addition to the client.

We saw it a little bit in the DR Distributors case, and we’re going to talk about that and how that conduct relates here. But in this particular instance, the Court found that the counsel had been given many opportunities to conduct an investigation. Considering that the text messages were the only real evidence here, the Court felt that counsel should have investigated that before even providing the information to the other side.

Counsel also made no effort whatsoever to deal with the inconsistencies in his client’s testimony. And there were multiple other pieces that the Court pointed to that were really a breakdown for the client in meeting his responsibilities. One, he failed to ensure that his client preserved the phones and the data stored on them, which allows clients spoliate evidence. Counsel went on to introduce an expert affidavit that did not even address the fabrication issues. He introduced evidence of questionable providence. He also filed a frivolous motion for sanctions. Really, what we had here from the Court’s perspective of how counsel’s representation went was just a continued pattern of really doubling down on this evidence that the plaintiff had regarding these text messages.

In the DR Distributors case, which we talked about in #CaseoftheWeek back in January, where we had a similar situation that the client engaging in bad conduct, that client there failed to tell his counsel about multiple additional sources of ESI. Then those sources were lost. In that case, when the counsel learned of the client’ conduct, they immediately brought it to the attention of the Court, and they immediately withdrew their representation. Here counsel doubles down, or at least that’s what it appears to be from the facts of the case. He continues the representation. He doesn’t make any way to conduct an investigation into the facts that are alleged to be fabricated. That really is the genesis or the basis for the Court awarding monetary sanctions under 28 U.S.C. § 1927.

Total monetary sanctions awarded in addition to the dismissal were in the amount of defendant’s attorney’s fees, costs and expenses associated with addressing the misconduct. I think that’ll be a whole other issue that’ll need to be briefed in terms of what those costs and fees are. They’re likely going to include the forensic examination of the information, all of the motion practice, the plaintiff’s deposition, anything that went on that was perpetuated by the fabrication of this evidence.

What are our takeaways for this case? Well, there’s a couple of things. I mean, really, as counsel, I look at, how did counsel on each side really look at this situation? And what kind of steps did they take?

It’s clear that counsel, for the defendants here really did an excellent job of challenging and disproving the authenticity of the image that serve as the basis for this case. That’s a good lesson. You need to pay attention. The smoking gun that you have is it really legitimate? You need to just be on the lookout for what are the ways in which you need to be thinking about the authenticity of information.

In this particular instance, the story that the plaintiff had was a pretty good indicator that there were some authenticity issues. The notion that you have an iPhone that has such problems that you have to take a screenshot of it from another phone, and then you subsequently lose the phone that you took the screenshot with — that story is pretty hard to buy, or it also could have been a series of events that was the perfect storm for the plaintiff. When it comes to authenticity, those facts put together in a story for the Court don’t really hold up.

Just because you receive information from your client does not necessarily mean it’s legitimate. You need to do the investigation to understand what you’re providing. Your obligations as an officer of the Court are not to provide information to the Court that you have any question about whether or not it is legitimate. If you learn that you have provided information to the Court that is not legitimate, you have got to fall on your sword. You have got to bring that to the Court’s attention. You have got to apologize and seek whatever remedies are going to be available for you and your client, as well as for the other side when that kind of thing arises.

The next takeaway really here is that there is a specific kind of expert here, and there are two experts that are mentioned in this case. One is Dan Regard, who is a friend and colleague who works with me planning the University of Florida eDiscovery Conference. He’s the President now at IDS. I believe he was with another organization at the time of this decision. Dan’s really knowledgeable in these types of issues—what’s available in terms of technology on the various iPhones. This is a great area of his expertise and of his colleague’s expertise, who is also on this case.

You have to find the right expert to be able to understand what you need and then what evidence can be provided. Dig into that. Don’t wait a long time to be able to find that information. If ever you’re in need of those kinds of information, you can always reach out, and we’ll be able to point you in a direction as well through the contacts that we have in eDiscovery universe.

Last takeaway. This really goes to plaintiff’s counsel and the sanctions that were levied against him and his firm. Your obligations to deal with ESI and litigation are very serious. They are also very complex. And there’s really no wiggle room in case law anymore for a lack of understanding or being a solo practitioner or even at a large firm. There’s just no excuse for ignorance on these issues, and the courts will hold you to task. They want to, I wouldn’t say make examples, but they want to present cases where lawyers are being held to the responsibilities that are provided to them under the Federal Rules of Civil Procedure and the state equivalents. You need to know and understand those obligations. This case is clear on that.

That’s our #CaseoftheWeek for this week. Thanks so much for joining me. I’ll be back next week with another addition of our #CaseoftheWeek from eDiscovery Assistant.

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Have a great week. Stay safe and healthy. Our best to our friends in Louisiana, and I’ll see you next week. Thank you.

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