At the start of the era of e-discovery, electronically stored information (ESI)—a term not even coined at the time—was relatively straightforward. One could perhaps expect to encounter a small set of WordPerfect documents and a PST file or two. Times have changed; today we can expect ESI to be comprised of vast quantities of information from a multitude of communication and office systems. What has not changed—and indeed is now more crucial than ever—is the need for parties and counsel to maintain technological expertise around ESI and the e-discovery process. This was demonstrated in a recent decision from the Southern District of New York, where the defense’s adept handling of key evidence they suspected had been fabricated resulted in severe sanctions against the plaintiff and her counsel, including a dismissal with prejudice.
‘Rossbach v. Montefiore Med. Ctr.’
In the employment discrimination case Rossbach v. Montefiore Med. Ctr., 2021 WL 3421569 (S.D.N.Y. Aug. 5, 2021), the plaintiff alleged that her supervisor sexually harassed her on multiple occasions and that her objections to the harassment led to retaliation and her firing. As her primary documentary evidence of the alleged harassment, the plaintiff offered an image purportedly depicting three inappropriate text messages sent to her iPhone 5 in June and November of 2017. See id. at *2.