Case 1:19-cv-05758-DLC Document 97 Filed 08/05/21 Page 1 of 32
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`Plaintiff,
`
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`19cv5758 (DLC)
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`
`OPINION AND ORDER
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`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------- X
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`
`:
`ANDREA ROSSBACH,
`:
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`:
`:
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`:
`-v-
`:
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`MONTEFIORE MEDICAL CENTER, NORMAN
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`MORALES, and PATRICIA VEINTIMILLA,
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`Defendants.
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`:
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`-------------------------------------- X
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`APPEARANCES:
`
`For plaintiff Andrea Rossbach:
`Daniel Altaras
`Derek Smith Law Group, PLLC
`One Penn Plaza
`Suite 4905
`New York, NY 10119
`
`For defendants Montefiore Medical Center, Norman Morales, and
`Patricia Veintimilla:
`Jean L. Schmidt
`Nina Massen
`Littler Mendelson, P.C.
`900 Third Avenue
`New York, NY 10022
`
`DENISE COTE, District Judge:
`
`The defendants in this employment discrimination case have
`moved to dismiss this action, as well as for the imposition of
`monetary sanctions against plaintiff Andrea Rossbach, her
`counsel Daniel Altaras, and the Derek Smith Law Group (“DSLG”),
`her counsel’s law firm. Their motion is based on this Court’s
`finding, following an evidentiary hearing, that Rossbach had
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`
`
`
`
`
`Plaintiff,
`
`
`19cv5758 (DLC)
`
`
`OPINION AND ORDER
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------- X
`
`
`:
`ANDREA ROSSBACH,
`:
`
`:
`:
`
`:
`-v-
`:
`
`:
`MONTEFIORE MEDICAL CENTER, NORMAN
`:
`MORALES, and PATRICIA VEINTIMILLA,
`:
`
`:
`Defendants.
`:
`
`:
`
`-------------------------------------- X
`
`APPEARANCES:
`
`For plaintiff Andrea Rossbach:
`Daniel Altaras
`Derek Smith Law Group, PLLC
`One Penn Plaza
`Suite 4905
`New York, NY 10119
`
`For defendants Montefiore Medical Center, Norman Morales, and
`Patricia Veintimilla:
`Jean L. Schmidt
`Nina Massen
`Littler Mendelson, P.C.
`900 Third Avenue
`New York, NY 10022
`
`DENISE COTE, District Judge:
`
`The defendants in this employment discrimination case have
`moved to dismiss this action, as well as for the imposition of
`monetary sanctions against plaintiff Andrea Rossbach, her
`counsel Daniel Altaras, and the Derek Smith Law Group (“DSLG”),
`her counsel’s law firm. Their motion is based on this Court’s
`finding, following an evidentiary hearing, that Rossbach had
`
`
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`Case 1:19-cv-05758-DLC Document 97 Filed 08/05/21 Page 2 of 32
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`fabricated documentary evidence she produced during discovery in
`this action. For the following reasons, the motion to dismiss
`is granted, and monetary sanctions are imposed on Rossbach,
`Altaras, and the DSLG.
`
`Background
`The facts set forth in this Opinion are derived from this
`
`Court’s March 11, 2021 Opinion and Order granting partial
`summary judgment to the defendants, see Rossbach v. Montefiore
`Medical Center, No. 19cv5758 (DLC), 2021 WL 930710 (S.D.N.Y.
`Mar. 11, 2021) (the “2021 Opinion”), the Court’s findings of
`fact at the April 22, 2021 evidentiary hearing in this case, and
`the parties’ submissions made in conjunction with the April 22
`evidentiary hearing. Familiarity with the 2021 Opinion is
`presumed.
`I.
`Rossbach’s Claims and the Events Leading to the Evidentiary
`Hearing
`Rossbach filed this lawsuit on June 16, 2019. Her
`complaint alleges federal, state, and New York City
`discrimination and tort claims arising from two related sets of
`events. Rossbach alleged that she was subjected to a campaign
`of sexual harassment by defendant Norman Morales, her
`supervisor. The complaint also alleges that, after she objected
`to Morales’ sexual harassment, Morales and defendant Patricia
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`2
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`Veintimilla retaliated against her, which culminated in her
`firing by Montefiore. The defendants moved on November 20, 2020
`for summary judgment on some of Rossbach’s claims –- primarily
`those related to Rossbach’s discharge -- and the 2021 Opinion
`largely granted that motion. Most of the claims stemming from
`Morales’ alleged sexual harassment remained for trial.
`On March 15, 2021, the defendants sought leave to move to
`dismiss Rossbach’s remaining claims with prejudice and for
`sanctions against Rossbach and her counsel. As a basis for this
`relief, the defendants alleged that certain documentary evidence
`produced during discovery had been fabricated, citing a forensic
`analysis of that evidence. The defendants further alleged that
`Rossbach had spoliated evidence and committed perjury at her
`deposition in this case. Later that day, Rossbach was ordered
`to notify the Court if she intended to engage a forensic expert
`to analyze the disputed evidence. On March 19, Rossbach
`informed the Court that she intended to engage an expert, and
`the Court ordered the parties to submit their respective expert
`reports in anticipation of an evidentiary hearing. Those
`reports were submitted on April 16.
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`3
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`II. The Evidentiary Hearing and the Court’s Findings of Fact
`Regarding to the Disputed Evidence
`On April 22, the Court held an evidentiary hearing
`regarding the allegations of fabrication of evidence.1 Daniel L.
`Regard II and Joseph Caruso testified as forensic experts for
`the defendants and Rossbach, respectively, and Rossbach also
`testified. The Court received the expert reports of Regard and
`Caruso as their direct testimony, and they were subject to cross
`examination regarding that testimony at the hearing. Rossbach
`was subject to both direct and cross examination at the hearing.
`At the conclusion of the hearing, the Court found by clear and
`convincing evidence that Rossbach had fabricated the disputed
`text message evidence and had given false testimony about how
`the evidence had been produced. As a result, the defendants’
`request to move to dismiss and for sanctions was granted. The
`Court’s findings of fact are outlined below.
`A.
`The Allegations Against Morales and the Disputed
`Evidence
`In her complaint, Rossbach alleged that Morales, who was
`one of her supervisors, subjected her to, among other things, a
`series of unwanted sexual comments and to unwanted sexual
`touching. Rossbach never made a formal complaint regarding this
`
`
`1 Due to the ongoing COVID-19 pandemic, the evidentiary hearing
`was, with the consent of the parties, conducted via
`videoconference.
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`4
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`alleged conduct,2 however, and there is very little documentary
`evidence that supports her claims. The primary piece of
`documentary evidence supporting Rossbach’s allegation that she
`was sexually harassed by Morales is the following image that
`purports to depict a series of text messages sent by Morales to
`Rossbach.
`
`This image is a fabrication.
`The image was produced to the defendants twice. The image
`was first produced to the defendants during discovery on May 20,
`
`
`
`
`2 Rossbach claims that she orally complained about Morales’
`sexual harassment to Patricia Veintimilla, a supervisor, and to
`her union representative, but there is no written documentation
`of these complaints.
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`5
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`2020 as a PDF file entitled “P000104.pdf.” After Rossbach’s
`deposition on October 29, 2020, the defendants requested the
`image in its original format, and Rossbach produced a JPEG file
`entitled “P000371.jpg.” The two images are in all material
`respects identical, save for their computer file format.
`B.
`Chronology of Events Surrounding the Disputed Evidence
`Rossbach claimed that she received the text messages
`
`displayed in the image from Morales on the iPhone 5 that she
`used during 2017. She testified during her deposition that
`during 2017 her iPhone 5 developed “severe screen cracks.”
`During the last few days of November 2017, soon after the date
`of the final alleged text message from Morales, her iPhone 5
`developed an “ink bleed” effect on its screen and she was unable
`to view text messages.3 During December 2017, Rossbach replaced
`her iPhone 5 with a new iPhone X. She stored the iPhone 5 in a
`drawer in her home. She claimed she was unable to transfer data
`from her iPhone 5 to her iPhone X.
`
`
`3 In a March 19, 2021 declaration (the “March 19 Declaration”)
`and at the evidentiary hearing in this case, Rossbach changed
`her story. She claimed that the phone did not, in fact, have an
`ink bleed effect on its screen until 2020, when she dropped the
`phone onto a tile floor in her kitchen. Her Declaration and her
`testimony at the evidentiary hearing were given after she
`learned that the defendants had raised questions about the
`authenticity of the image.
`
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`6
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`On January 5, 2018, Montefiore fired Rossbach, and in May
`
`2018, she filed a complaint regarding Montefiore with the Equal
`Employment Opportunity Commission (“EEOC”). In March 2019, the
`EEOC gave Rossbach a right-to-sue letter, and in June 2019,
`Rossbach filed the instant lawsuit. A pretrial scheduling order
`was issued on January 14, 2020.
`
`At Rossbach’s October 29, 2020 deposition, she testified
`about receiving the text messages from Morales. She also
`testified about the creation of the image of those messages,
`claiming that, because the iPhone 5 “screen was extremely
`damaged,” she could not take a screen shot of the Morales text
`messages on her iPhone 5, but that she took a picture of her
`iPhone 5 screen with her iPhone X and sent the picture to
`Altaras. She confirmed that the passcode for the iPhone 5 is
`0620, and that she had given the iPhone 5 to her attorney.
`After the deposition, counsel for the defendants requested from
`Altaras the original image provided by Rossbach, and Altaras
`produced to the defendants the P000317.jpg file.
`
`In the March 19 Declaration, submitted after the defendants
`notified the plaintiff that they were contesting the
`authenticity of the text messages, Rossbach changed her
`explanation of the state of her iPhone 5. She claimed that in
`March 2020, she sought to recover the text messages from Morales
`
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`7
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`stored on her moribund iPhone 5, and that she attempted to take
`a screen shot of the text messages but was unable to do so
`because the iPhone 5’s screen was broken and flickered
`erratically. Instead, she placed a finger on the screen of the
`iPhone 5 to prevent it from flickering and used the camera
`feature of her iPhone X to take a picture of the screen of her
`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 defendants’ counsel in PDF format as
`P000104.pdf. The image as produced does not show any signs of a
`cracked screen, an ink bleed, flickering, or Rossbach’s finger.
`
`In the March 19 Declaration, Rossbach also averred that, in
`September 2020, the iPhone X that she had used to take the
`picture of her iPhone 5 screen began to malfunction. She took
`her iPhone X to a retail store operated by her cell phone
`service provider, where she was informed that the iPhone X could
`not be repaired and that she would need to trade it in for a new
`phone. She disposed of her iPhone X and did not maintain a copy
`of the data stored on her iPhone X. The defendants were not
`afforded the opportunity to examine the iPhone X or its
`contents.
`
`The defendants sought the production of Rossbach’s iPhone 5
`for a forensic evaluation. Rossbach provided the iPhone 5 to
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`8
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`Altaras, and on October 7, a courier retrieved the iPhone 5 from
`Altaras’ home. The phone was delivered to Consilio, a forensic
`services provider, along with a handwritten note that read
`“Passcode: 0620.” Consilio staff observed that the screen of
`the iPhone 5 was cracked but that there was no apparent “ink
`bleed” or flickering on the screen. The forensic evaluation
`process required Consilio staff to first unlock the iPhone 5 by
`entering its passcode. The evaluator attempted to unlock the
`device by using the “0620” passcode, but the device did not
`unlock and displayed a message stating that the device would be
`disabled for ten minutes. A Consilio evaluator then made a
`second attempt to unlock the device by entering the “0620”
`passcode, but the device displayed a message that the “0620”
`passcode was incorrect and that the device would be permanently
`disabled if more than 10 failed attempts to unlock it were made.
`Counsel for the defendants asked Rossbach to provide the correct
`passcode for the iPhone 5 at her October 29 deposition, and
`Rossbach testified that the passcode was “0620.” Because
`Rossbach did not provide the correct passcode to unlock her
`iPhone, Consilio staff were unable to unlock it and conduct a
`forensic evaluation.
`As noted, Rossbach provided her March 19 Declaration after
`defense counsel had notified Altaras of their conclusion that
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`9
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`the images of the purported text messages were a fabrication.
`Defense counsel engaged Regard to assess the authenticity of the
`images after receiving the P000317.jpg file from Altaras. On
`February 11, Altaras and defense counsel met with Regard. At
`the meeting, Regard described the basis for his conclusion that
`the image was a fabrication, including the obvious point that
`the P000317.jpg image did not show any cracks on the screen of
`her iPhone 5. After that meeting, Rossbach provided the March
`19 Declaration in which she claimed, contrary to her deposition
`testimony, that at the time she took a photograph of her iPhone
`5 screen, it was not cracked. She instead asserted that the
`iPhone 5’s screen flickered erratically at the time she took the
`photograph of the screen. Rossbach’s March 19 Declaration
`claims that the cracks and the “ink bleed” only developed when
`she dropped the iPhone 5, which was after she took the
`photograph of the iPhone 5 with her iPhone X. Rossbach had not
`mentioned the purported flickering issue in her deposition
`testimony.
`C.
`Findings of Fact Regarding Fabrication and Spoliation
`The evidence that Rossbach fabricated the text message
`evidence is overwhelming. The Court’s findings of fact at the
`April 22 hearing included the following.
`
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`10
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`First, the P000317.jpg image produced by the plaintiff is
`not consistent with Rossbach’s testimony regarding its creation.
`At her deposition, she explicitly stated that in 2017, her
`iPhone 5 had developed severe screen cracks that rendered it
`effectively unusable and that it developed an “ink bleed” that
`left her unable to view text messages. She further testified
`that as a result, she could not use the screen shot function on
`the iPhone to document the text messages purportedly sent by
`Morales, and that she instead had to photograph her iPhone 5
`screen with her iPhone X in order to transmit this evidence to
`her attorney. But no screen cracks or ink bleed are visible in
`the document she contends is a photograph of the picture she
`took of her iPhone 5 screen, and those artifacts would have been
`visible in any authentic photograph of an iPhone 5 damaged in
`the way she described.
`Moreover, her testimony regarding the state of her iPhone 5
`changed in material ways over time. She testified in her
`deposition that the iPhone 5 had screen cracks in 2017. After
`the defendants called into question the authenticity of the
`image produced to them, she submitted the March 19 Declaration
`in which she repudiated her prior claim that the iPhone 5 had
`screen cracks in 2017. She instead claimed that the iPhone 5
`was unusable because of a screen flicker in 2017. Additionally,
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`11
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`she testified at the April 22 hearing that the screen cracks and
`“ink bleed” described in her deposition did not develop until
`she accidentally dropped the iPhone 5 after delivering the image
`to Altaras in 2020. By themselves, these inconsistent
`statements undermined the credibility of her testimony regarding
`the image.
`Second, while Rossbach claimed that the disputed image was
`a photograph of her iPhone 5 screen taken with an iPhone X, it
`was not. The P000317.jpg image file, which was purportedly the
`original photograph taken by Rossbach and provided to Altaras,
`lacked characteristic metadata attached to photographs taken
`with the iPhone X.4 The absence of this metadata indicates that
`the image is not a photograph taken by an iPhone X.
`Additionally, analysis of the image’s color characteristics, as
`well as a visual assessment of the image, indicates that it is
`not a photograph at all.
`Third, the image does not depict text messages as they
`would appear on an iPhone 5. The iPhone text message
`application that the image purports to depict is a component of
`the iPhone operating system (“OS”), which means that the version
`
`
`4 Metadata is “[i]nformation describing the history, tracking, or
`management of an electronic file.” Fed. R. Civ. P. 26(f)
`advisory committee’s note (2006).
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`12
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`of the iPhone OS used on a given iPhone determines the visual
`characteristics of text messages displayed on that iPhone. The
`last version of the iPhone OS supported by the iPhone 5 is
`version 10.5 For instance, certain characteristics of the font
`and icons in the iPhone text message application will be
`consistent on all iPhones using OS 10.6 But the image produced
`by Rossbach and Altaras contains characteristics not consistent
`with OS 10 or any other version of the iPhone OS available on
`the iPhone 5. These include the icon depicting the phone’s
`level of battery charge; the font size and style in the header;
`the icons in the lower portion of the header; the design of a
`“heart eyes” emoji in the purported message from Morales to
`
`
`5 As a point of comparison, the most recently released version of
`the iPhone is the iPhone 12. See https://www.apple.com/iphone/.
`The most recent version of the iPhone OS is version 14, which
`can be utilized only by the iPhone 6s and newer iPhone models.
`See https://www.apple.com/ios/ios-14/.
` Rossbach’s expert Caruso agreed that all iPhones using the same
`OS have the same default interface characteristics. But he
`added that an iPhone user may adopt a non-standard interface
`configuration for their phone by changing the device’s settings
`or “jailbreaking” the device to allow for modifications not
`approved by Apple. Caruso, however, did not testify that a
`settings change or jailbreaking of an iPhone 5 could produce the
`specific interface anomalies that Regard described, did not
`examine Rossbach’s iPhone 5, and did not interview Rossbach to
`ask whether she had jailbroken her phone. Moreover, Rossbach
`did not testify that she had changed her iPhone’s interface
`settings or that her iPhone was jailbroken. She also testified
`that she lacked technical savvy.
`
`
` 6
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`13
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`Rossbach;7 and the icon for the iMessage Apps feature in the
`footer.
`More to the point, the image contained elements that are
`not consistent with any iPhone OS. For instance, the contact
`bar displayed in the image shows Morales’ full first and last
`name, while an authentic iPhone OS image would display only his
`first name. The blank text entry box at the bottom of the image
`is also inconsistent with an image of an authentic iPhone
`interface, because all versions of the iPhone OS show the words
`“iMessage” or “Text Message” in an empty text entry box,
`depending on the protocol that the iPhone will use to send the
`message. Finally, the font used in the image differs, albeit
`subtly, from that used to display text messages on iPhones.
`In sum, the evidence at the evidentiary hearing
`conclusively demonstrated that the image was not of text
`messages received on an iPhone 5, that it was not a photograph
`taken by an iPhone X, that the image is not an authentic
`representation of how text messages received on an iPhone would
`be displayed, and that the image was not even a photograph. As
`
`
`7 The “heart eyes” emoji depicted in the image is the version
`displayed on iPhones running OS 13 or later. Because the visual
`characteristics of a text message displayed on an iPhone depend
`on the iPhone’s OS, this version of the emoji is not displayed
`on iPhones running OS 10, even if the text message is sent from
`an iPhone running OS 13 or later to an iPhone running OS 10. As
`noted above, the iPhone 5 is not capable of running OS 13.
`14
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`a result, there is clear and convincing evidence that Rossbach
`fabricated the image and engaged in perjury and spoliation to
`prevent discovery of that fabrication.
`III. Recent Procedural History
`At the April 22, 2021 evidentiary hearing, the Court
`granted the defendants’ request to move to dismiss and for
`sanctions. The Court proposed two scheduling options for the
`briefing of those motions: one proposed scheduling option
`required prompt briefing of the defendants’ motions, while the
`other proposed scheduling option was elongated to give counsel
`for the parties the opportunity to confer regarding a resolution
`of this action. Upon a representation from Altaras that an
`opportunity to confer could be fruitful, the Court adopted an
`elongated schedule for the briefing of those motions. The
`parties did not reach an agreement, and on May 27, the
`defendants timely filed a motion to dismiss and a motion for
`sanctions.
`Rossbach opposed those motions on June 3. With her
`opposition, Rossbach included an 18-page expert declaration
`dated June 3, 2021 (“Caruso Declaration”) and a declaration from
`Altaras that attached purported new evidence of Morales’
`harassment of Rossbach and one of her female colleagues. The
`motions became fully submitted on June 10.
`
`
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`15
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`Discussion
`The defendants have moved for sanctions in the form of
`
`dismissal of the plaintiff’s remaining claims in this action, as
`well as monetary sanctions against the plaintiff, her counsel,
`and her counsel’s law firm. They also seek an award of
`attorneys’ fees and costs stemming from their investigation into
`the fabrication of the text messages and the litigation of their
`resulting motion for sanctions.
`I.
`Legal Framework
`The defendants have moved for sanctions on several distinct
`grounds: the Court’s inherent power; Title 28, United States
`Code, Section 1927; and Rule 37(e) of the Federal Rules of Civil
`Procedure.8 This Opinion sets out the legal framework underlying
`each basis for sanctions before analyzing the defendants’
`motion.
`A.
`Inherent Power
`“Every district court has the inherent power to supervise
`and control its own proceedings and to sanction counsel or a
`litigant.” Mitchell v. Lyons Pro. Servs., Inc., 708 F.3d 463,
`
`8 The defendants have also moved for sanctions under Rule 11,
`Fed. R. Civ. P. When a party seeks Rule 11 sanctions, it must
`serve the motion on the party against whom it seeks sanctions,
`“but [the motion] must not be filed or presented to the court if
`the challenged paper . . . is withdrawn” within 21 days. Fed.
`R. Civ. P. 11(c)(2). Since the defendants have not complied
`with Rule 11’s procedural requirements, Rule 11 sanctions may
`not be imposed in this case.
`
`
`
`16
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`467 (2d Cir. 2013) (citation omitted). “Indeed . . . district
`judges have an obligation to act to protect the public,
`adversaries, and judicial resources from litigants and lawyers
`who show themselves to be serial abusers of the judicial
`system.” Liebowitz v. Bandshell Artist Mgmt., No. 20-2304-CV,
`2021 WL 3118938, at *7 (2d Cir. July 23, 2021). A district
`court’s inherent power to sanction includes the power to
`“sanction a party . . . to deter abuse of the judicial process
`and prevent a party from perpetrating a fraud on the court.”
`Yukos Cap. S.A.R.L. v. Feldman, 977 F.3d 216, 235 (2d Cir.
`2020). Fraud on the court occurs when “a party has sentiently
`set in motion some unconscionable scheme calculated to interfere
`with the judicial system's ability impartially to adjudicate the
`action.” Id. (citation omitted).
`A district court may use its inherent power to sanction a
`plaintiff by dismissing her case with prejudice, Shepherd v.
`Annucci, 921 F.3d 89, 98 (2d Cir. 2019), or by imposing monetary
`sanctions against a party or her counsel, International
`Technologies Marketing, Inc. v. Verint Systems, Ltd., 991 F.3d
`361, 367 (2d Cir. 2021). “Because of its potency, however, a
`court's inherent power must be exercised with restraint and
`discretion.” Id. at 368 (quoting Chambers v. NASCO, Inc., 501
`U.S. 32, 44 (1991)). Before a court may invoke its inherent
`
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`power to sanction, the party facing sanctions must be provided
`with “adequate notice and opportunity to be heard.” Shepherd,
`921 F.3d at 97.9 When the sanction is dismissal with prejudice,
`it must be supported by “clear evidence of misconduct and a high
`degree of specificity in the factual findings.” Mitchell, 708
`F.3d at 467 (citation omitted). The Court must find
`“willfulness, bad faith, or reasonably serious fault,” id.
`(citation omitted), and must also consider “whether a lesser
`sanction would [be] appropriate,” Shepherd, 921 F.3d at 98
`(citation omitted).
`B.
`Section 1927
`The defendants seek sanctions against plaintiff’s counsel
`pursuant to § 1927, which provides that
`[a]ny attorney . . . 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 attorneys'
`fees reasonably incurred because of such conduct.
`
`28 U.S.C. § 1927. This provision allows a court to impose
`sanctions against both Altaras and his law firm, DSLG. Huebner
`v. Midland Credit Mgmt., Inc., 897 F.3d 42, 55 n.8 (2d Cir.
`2018).
`
`
`9 Rossbach and her counsel have been afforded adequate notice and
`opportunity to be heard in this case, and do not contend
`otherwise.
`
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`Section 1927 sanctions may only be imposed “when the
`attorney's actions are so completely without merit as to require
`the conclusion that they must have been undertaken for some
`improper purpose.” Johnson v. Univ. of Rochester Med. Ctr., 642
`F.3d 121, 125 (2d Cir. 2011) (citation omitted). As is the case
`for sanctions imposed pursuant to a court’s inherent power, a
`court must provide notice and opportunity to be heard before
`imposing § 1927 sanctions. Id. at 126. Before imposing
`monetary sanctions under § 1927, “a court must find clear
`evidence that (1) the offending party's claims were entirely
`without color, and (2) the claims were brought in bad faith --
`that is, motivated by improper purposes such as harassment or
`delay.” Huebner, 897 F.3d at 55 (citation omitted). When an
`attorney continues to defend a complaint even after learning of
`facts rendering the complaint “fatal[ly] flaw[ed],” he has
`engaged in bad faith conduct sanctionable under § 1927.
`Liebowitz, 2021 WL 3118938, at *10.
`C.
`Rule 37(e)
`Finally, the defendants seek dismissal as a sanction
`pursuant to Rule 37(e), Fed. R. Civ. P. That rule permits a
`court to “dismiss the action” if “electronically stored
`information that should have been preserved in the anticipation
`or conduct of litigation is lost because a party failed to take
`
`
`
`19
`
`
`
`Case 1:19-cv-05758-DLC Document 97 Filed 08/05/21 Page 20 of 32
`
`reasonable steps to preserve it, and it cannot be restored or
`replaced through additional discovery” and the court finds “that
`the party acted with the intent to deprive another party of the
`information's use in the litigation.”
`II. Analysis
`A.
`Dismissal
`An application of the aforementioned principles indicates
`that dismissal of this action is warranted as an exercise of
`this Court’s inherent power to sanction and deter fraud on the
`Court.10 Rossbach willfully and in bad faith fabricated evidence
`in this action and attempted to mislead the Court regarding her
`actions. There is overwhelming evidence that the image
`purporting to depict text messages was inauthentic and
`intentionally fabricated. In sum, Rossbach engaged in an
`“unconscionable scheme calculated to interfere with the judicial
`
`
`10 In the alternative, dismissal is also proper under Fed. R.
`Civ. P. 37(e). The evidence adduced at the hearing indicated
`that Rossbach intentionally deprived the defendants of access to
`the electronically stored information on her iPhone 5 by
`refusing to provide the correct passcode for the device. She
`even provided a false passcode when asked to provide the correct
`passcode for the device while she was under oath at her
`deposition. Rossbach also disposed of her iPhone X while this
`litigation was pending and did not maintain a copy of its data,
`even though she knew that it contained potentially relevant
`electronically stored information. This knowing and intentional
`spoliation was intended to deprive the defendants of their
`ability to investigate Rossbach’s claims in preparation for
`trial. In its own right, Rossbach’s spoliation warrants
`dismissal.
`
`
`
`20
`
`
`
`Case 1:19-cv-05758-DLC Document 97 Filed 08/05/21 Page 21 of 32
`
`system's ability impartially to adjudicate the action.”
`Feldman, 977 F.3d at 235 (citation omitted); see also King v.
`First American Investigations, Inc., 287 F.3d 91, 95 (2d Cir.
`2002) (defining “fraud on the court” as “fraud which seriously
`affects the integrity of the normal process of adjudication” and
`“does or attempts to defile the court itself”) (citation
`omitted).
`Given the severity and willfulness of her conduct,
`dismissal with prejudice is the only appropriate sanction for
`her actions. Overwhelming evidence indicates that Rossbach
`sought to defraud the Court and the defendants through a willful
`and persistent campaign of fabrication, spoliation and perjury.
`A lesser sanction -- such as a monetary sanction, the exclusion
`of evidence, or an appropriate instruction to the jury at trial
`–- would be insufficient to remedy the impact of this misconduct
`or to deter future misconduct.
`Moreover, if this case were to proceed to trial, the result
`is highly likely to be the same as if the Court were to dismiss
`this action now. Since there is limited, if any, documentary
`evidence of Rossbach’s claims of workplace harassment, the
`outcome of any trial would turn on a jury’s assessment of the
`credibility of Rossbach, Morales, and other key witnesses. But
`given that the jury would learn at trial of Rossbach’s campaign
`
`
`
`21
`
`
`
`Case 1:19-cv-05758-DLC Document 97 Filed 08/05/21 Page 22 of 32
`
`of willful fabrication and deception regarding this very claim,
`no reasonable juror would credit Rossbach’s testimony. A trial
`in this case would therefore be a pointless waste of judicial
`resources and impose an expensive and undue burden on the
`defendants.
`In her submission in opposition to the defendants’ motions
`to dismiss and for sanctions, Rossbach offers almost no argument
`as to why a sanction of dismissal is not warranted. Instead of
`acknowledging either the overwhelming evidence of fabrication or
`even her conflicting explanations about the retrieval of the
`text messages, she devotes her opposition almost entirely to an
`effort to relitigate the expert testimony at the April 22
`evidentiary hearing and to describe evidence of other alleged
`misconduct by Morales.11
`Through the Caruso Declaration, Rossbach seeks to introduce
`new evidence that purports to demonstrate the authenticity of
`the image. This Declaration is untimely. The parties were
`required to exchange expert reports in advance of the hearing
`and those reports constituted the direct testimony of their
`experts at the hearing. The defendants’ expert report was
`
`
`11 Altaras attempted to introduce some of this evidence at the
`April 22 hearing. The Court excluded this evidence because it
`was not disclosed to the defendants during discovery or, indeed,
`at any point before the April 22 evidentiary hearing.
`22
`
`
`
`
`
`Case 1:19-cv-05758-DLC Document 97 Filed 08/05/21 Page 23 of 32
`
`submitted on April 16, and Rossbach submitted her expert
`declaration on April 19. If Rossbach wished to introduce a
`supplemental expert report in support of her contention that the
`disputed image is an authentic representation of text messages
`sent to her by Morales, she should have done so in advance of
`the April 22 hearing or requested an adjournment of the hearing
`to prepare and produce the supplemental report. She did
`neither. At the hearing, Altaras had an opportunity to cross-
`examine Regard and confront his evidence of fabrication.
`Rossbach’s belated attempt to relitigate the April 22
`evidentiary hearing is improper.
`Moreover, this purported new evidence in the Caruso
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