Philip Favro, Driven: Fabricated Text Message Case Highlights the Importance of Emojis in E-Discovery

Extract from Philip Favro’s article “Fabricated Text Message Case Highlights the Importance of Emojis in E-Discovery”

Emojis are an important aspect of everyday communication in 2021. Given their ubiquity, there should be little surprise that emojis have become a key source of evidence in civil and criminal cases. This was certainly the case in Rossbach v. Montefiore Medical Center (S.D.N.Y. 8/5/21).

In Rossbach, the court determined that a purported salacious and inappropriate text message plaintiff submitted in support of her harassment and retaliation claims had been fabricated based on (among other things) characteristics of the “heart eyes” emoji embedded in the message. Rossbach emphasizes the evidentiary importance of understanding the complexity of what appear to be simple emojis and highlights recommendations for how lawyers can effectively handle emojis in discovery.

Rossbach v. Montefiore Medical Center
In Rossbach, plaintiff claimed she had been sexually harassed and then wrongfully terminated by her former employer. At the heart of plaintiff’s claims were text messages a co-worker allegedly sent her.

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