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August 26, 2021

Fabricated Text Message Highlights the Importance of Emojis in eDiscovery

emojis in eDiscovery

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.[1] 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.[2]

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. The text message string, as memorialized in the court’s opinion, reads as follows:

emoji text message

Plaintiff originally produced the above image in discovery as a PDF file and later, at defendants’ request, turned over a JPEG image file of the alleged message.

Defendants, however, found multiple problems with the purported text message string, together with implausible and shifting explanations from plaintiff regarding how she captured the image. Plaintiff asserted she received the messages on her iPhone 5, but because the phone was so damaged (cracked screen, ink bleed, and otherwise malfunctioning) she reportedly could not take a screenshot of the message from the phone itself. Instead, plaintiff explained that she took a picture of the iPhone 5 screen—with the text message string displayed—using an iPhone X. Nevertheless, the image of the text message that plaintiff produced did not exhibit any screen cracks or ink bleed, which should have been apparent if plaintiff’s explanation were credible.

Emoji Troubles for Plaintiff

In addition, based on the expert testimony offered by defendants, the court noted several other issues with the text message that challenged the credibility of plaintiff’s story. Among other things, the court observed that the visual displays on the message were inconsistent with an iPhone 5. Because an iPhone 5 cannot run an iPhone operating system (“iOS” or “OS”) beyond version 10, an iPhone 5 will not display certain information on a text message that could otherwise be shown in a message on iPhones running a later version of iOS. This includes certain aspects of the “heart eyes” emoji found in the message. As the court observed:

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. (emphasis added)

The differences between a “heart eyes” emoji on iPhones running iOS 13 versus iOS 10 or an earlier version are visually apparent, with the size of heart eyes being larger and the heart color in some instances being a deeper shade of red. Professor Eric Goldman, a nationally recognized emoji expert from Santa Clara University Law School, noted some of these differences in his post about this case. Professor Goldman also displayed the following chart from Emojipedia, which visually memorializes the changes the “heart eyes” emoji has undergone over various iOS versions:

emoji text message

The Court Orders Dismissal of Plaintiff’s Lawsuit and Imposes Monetary Sanctions

Once these and other problems with the purported text message were presented to plaintiff, she conveniently changed her recollection of events. However none of plaintiff’s efforts to substantiate her crumbling story impressed the court, which unequivocally found that plaintiff fabricated the text message and attempted to perpetrate a fraud on the court.

Drawing on its inherent authority, the court dismissed plaintiff’s lawsuit and imposed monetary sanctions on plaintiff and her counsel. In addition, the court found that dismissal was an appropriate sanction under Federal Rule of Civil Procedure 37(e)(2) as plaintiff had destroyed relevant, responsive evidence on both her iPhone 5 and her iPhone X with an intent to deprive defendants of that evidence in the litigation.

Handling Emojis as Evidence and Other Lessons from Rossbach

Rossbach is instructive on at least three eDiscovery issues.

First, Rossbach teaches that emojis may be an important source of ESI evidence in litigation. While they certainly won’t be critical in every action, hundreds of cases have found that emojis provide context and clarity on key issues in both criminal and civil matters. Counsel should be aware of this fact as they collect their clients’ ESI and seek discovery of relevant information from their adversaries.

Second, Rossbach provides guidance on how technological features impact the use of emojis as evidence. As Rossbach makes clear, emojis may display differently on different versions of Apple’s iOS. Similarly, different technology platforms (e.g., Apple, Google, Microsoft, Facebook, etc.) have different designs for the same emojis. Variances in OS versions within one platform or across technology platforms may result in an emoji being displayed differently on the recipient’s device than on the sender’s device. As Professor Goldman has repeatedly counseled, lawyers should accordingly determine how the emoji was displayed for both the sender and the recipient(s) and understand the technological particularities of the devices and operating systems for those involved in the message string. All of which will likely be critical for establishing an evidentiary foundation for the use of an emoji during dispositive motion practice or at trial.

The third and final point is one courts have underscored repeatedly in 2021: counsel must undertake a reasonable investigation of the evidence supporting a party’s claims or defenses. The court in Rossbach criticized plaintiff’s counsel—and ultimately imposed sanctions on him and his firm—for failing to do so. In particular, the court spotlighted counsel’s failure to collect and preserve relevant evidence from plaintiff’s iPhone 5 or iPhone X, which led to the loss of relevant communications that might have affected counsel’s analysis of the issues. It’s now axiomatic that lawyers must work with the client and investigate pertinent data sources to ensure relevant ESI is safely accounted for in litigation.

[1]Rossbach v. Montefiore Medical Center, No. 19-cv-5758 (DLC), 2021 WL 3421569 (S.D.N.Y. Aug. 5, 2021).

[2] Legaltech News originally published this post as an article on its website on August 16, 2021.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.