Rossbach v. Montefiore Medical Center

Background

Andrea Rossbach brought federal, state, and New York City discrimination and tort claims based on alleged sexual harassment by her supervisor, Norman Morales, and alleged retaliation by Morales and Patricia Veintimilla that culminated in Montefiore Medical Center firing her. The defendants previously moved for summary judgment, and the court’s March 11, 2021 opinion largely granted that motion, leaving most claims based on Morales’s alleged sexual harassment for trial.

The defendants later sought dismissal of the remaining claims and sanctions after asserting that Rossbach had fabricated documentary evidence, destroyed or failed to preserve electronic evidence, and committed perjury. The central disputed evidence was an image that purported to show sexually suggestive text messages from Morales to Rossbach. Rossbach gave different accounts about the condition of the iPhone 5 allegedly used to receive the messages and how the image was created. The phone could not be unlocked for forensic examination using the passcode Rossbach provided, and Rossbach had disposed of the iPhone X that she said she used to photograph the iPhone 5’s screen.

Evidentiary Hearing and Findings

At an April 22, 2021 evidentiary hearing, forensic experts testified and Rossbach testified. The court found by clear and convincing evidence that Rossbach fabricated the disputed text-message image and gave false testimony about how it was produced. The court concluded that the image was not a photograph taken by an iPhone X, did not depict messages as they would appear on an iPhone 5, contained interface features inconsistent with any iPhone operating system, and was not an authentic photograph.

The court also found that Rossbach engaged in spoliation—the intentional loss or withholding of electronically stored information relevant to the case—by refusing to provide the correct passcode for the iPhone 5 and disposing of the iPhone X without preserving its data. The court characterized the conduct as a willful and persistent campaign of fabrication, spoliation, and perjury intended to mislead the court and the defendants.

Dismissal

The court dismissed the action with prejudice under its inherent power to sanction misconduct and, alternatively, under Federal Rule of Civil Procedure 37(e). The court determined that dismissal with prejudice was the only appropriate sanction because lesser measures, such as excluding the evidence or giving a jury instruction, would not adequately address the misconduct or deter similar conduct. The court also stated that a trial would likely turn on Rossbach’s credibility and would be a pointless waste of judicial resources after the jury learned about the fabrication.

The court rejected Rossbach’s attempt to relitigate the evidentiary hearing through a late expert declaration and additional evidence concerning alleged harassment. It also rejected her argument that credibility determinations had to be left to a jury, explaining that a district court may independently investigate whether it has been defrauded and make factual findings for that purpose.

Monetary Sanctions

The court imposed a monetary sanction against Rossbach under its inherent power in the amount of the defendants’ attorneys’ fees, costs, and expenses associated with investigating and litigating the fabrication, including the sanctions motion. The same monetary sanction was imposed against Altaras and the Derek Smith Law Group.

The court found that Altaras negligently or recklessly failed to meet his responsibilities as an officer of the court, including by failing to investigate the evidence after defendants raised concerns, failing to ensure preservation of the phones and their data, submitting Rossbach’s later declaration, and continuing to litigate the case. The court also found that Altaras unreasonably and vexatiously multiplied the proceedings, supporting sanctions under 28 U.S.C. § 1927. The sanction against Rossbach, Altaras, and the Derek Smith Law Group was assessed jointly and severally, meaning each could be held responsible for the full amount. The opinion states that a later scheduling order would address calculation of the sanction, but it does not state the final dollar amount.

The defendants also sought sanctions under Federal Rule of Civil Procedure 11, but the court held that those sanctions could not be imposed because the defendants had not followed Rule 11’s required procedure for serving the motion before filing it.

Disposition

The court dismissed the action with prejudice. It also imposed a joint-and-several monetary sanction against Andrea Rossbach, Daniel Altaras, and the Derek Smith Law Group for the defendants’ attorneys’ fees, costs, and expenses associated with addressing Rossbach’s fabrication, under the court’s inherent power and 28 U.S.C. § 1927.