HR Alert: Preserving Evidence in a Discrimination, Harassment, or Retaliation Lawsuit

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It’s an unfortunate fact that employees are increasingly making claims against their employers, whether legitimate or not. These claims may be at an administrative agency such as the EEOC or NY Division of Human Rights or they may be in a State or federal court. Employers can be sued for many reasons, including alleged harassment and retaliation, and one of the most important aspects of a lawsuit is evidence.

Therefore, it’s important for employers generally to be familiar with the rules for preserving and producing evidence in a lawsuit. In order to see these rules in action, let’s take a look at a recent lawsuit between a former employee and a medical center located in the Bronx.

Rossbach v. Montefiore Medical Center – A Cautionary Tale

In 2023, the United States Second Circuit Court of Appeals released an opinion finding that a woman named Andrea Rossbach, who brought sexual harassment claims against her employer, Montefiore Medical Center, had fabricated a key piece of evidence in the case.

Rossbach worked as a registered nurse in the pediatric emergency department for the Medical Center from 2014 to 2018 when she was terminated for violating the hospital’s drug and alcohol policy. In response, Rossbach brought a sexual harassment and retaliation suit against the Medical Center claiming that her supervisor sent her sexually-explicit text messages.

During the trial, Rossbach introduced evidence of a PDF file containing screenshots of the alleged text messages. Rossbach claimed that she received the texts on an iPhone 5, yet the screen had several severe cracks and “ink bleed” that prevented her from taking a screenshot. Since she apparently could not take screenshots with her iPhone 5, she took pictures of the explicit text messages with her new iPhone X. Rossbach testified that she later traded in the iPhone X after it began to malfunction.

The court identified several inconsistencies with Rossbach’s story. For example, Rossbach claimed that she took a photo of her cracked phone screen displaying the text messages, yet the image produced at trial did not display any cracks. In addition, an expert witness testified that the text messages were not consistent with an iPhone 5 due to differences in the font style, emoji design, and icon appearance. Finally, Rossbach had refused during discovery to provide an accurate passcode for the iPhone 5 and had discarded the iPhone X before the lawsuit began, all quite suspicious.

In the end, the court dismissed the lawsuit, concluding that Rossbach had not only committed perjury but had also spoliated the evidence, which is legalese for destroying relevant evidence. In addition to the dismissal, the court ordered Rossbach to pay to the defendant over $150,000 for Montefiore’s attorneys’ fees along with other expenses related to the lawsuit.

What’s the Moral of the Story for Employers?

This lawsuit may have involved a former employee fabricating and destroying evidence, yet these same rules apply to employers that face a claim.

In a lawsuit, a party is liable for spoliating, or destroying, evidence if:

  • They had an obligation to preserve the evidence at the time it was destroyed;
  • The evidence was destroyed with a culpable state of mind; and
  • The evidence was relevant to a claim or a defense.

Let’s go through these rules step-by step so you know exactly what’s expected of you when preparing for a lawsuit.

Parties – whether individuals or companies – have an obligation to preserve evidence where they have any notice that the evidence in question will be relevant to a pending or threatened lawsuit. This notice can be given when the lawsuit is filed and the party is served with a summons and complaint. In addition, this obligation arises where a party should have known that the evidence may be used in a future claim or lawsuit. As a consequence, you should keep track of all emails, documents, phone messages, and anything other kind of evidence that could be used in connection with a claim or threatened claim.

Next, an individual or company that destroys evidence must have had a culpable state of mind when doing so. Courts don’t require that the evidence be purposefully destroyed, however. So what does that mean for your company? If anyone in management or a supervisory role has reason to know a claim is percolating or an employee may have threatened to bring a suit, and they don’t warn others to preserve evidence, that can create the required negligent, or careless, state of mind.  Consequently, if destruction of evidence is merely negligent, then a person or company can be held responsible for spoliation. This means that where there’s an obligation to preserve evidence, a party can be liable for destroying that evidence even if it’s done by accident. Therefore, you want to begin preserving evidence if you even suspect that a claim may be made against you or your business.

Finally, for a ruling on spoliation, the evidence must be relevant to a claim or defense. This means that the lost or destroyed piece of evidence must make a fact more or less likely to be true. For example, the actual existence and presentation of the explicit text messages in Rossbach would have made it more likely that Rossbach was the victim of sexual harassment. So if you think something may be connected to a claim or a defense in any way, you should take steps to preserve that evidence. This can also include text messages, voicemails, and other e-evidence from company phones and personal cell phones.

What Should A Business Do?

Keep in mind that these rules typically are analyzed on a case-by-case basis. So you should always seek advice from legal counsel about what evidence must be preserved, when it should be preserved, and how it should be preserved. As the saying goes, the best defense is a good offense. Otherwise, you may end up like Andrea Rossbach, and that’s never a good place to be.

The Coppola Firm has employment law litigators with over two centuries of collective experience. Our insights into proactive steps as well as our considerable courtroom experience provides comprehensive guidance to our employer clients. If you have questions or would like to see if The Coppola Firm is a good fit for your business, give Lisa Coppola a call at 716.839.9700 ext. 101. We’re always happy to help.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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