Here’s what happens when a judge catches a plaintiff fabricating evidence of sexual harassment


Spoiler alert: it often doesn’t end well for the plaintiff or their lawyer.

For example, let’s discuss this Second Circuit decision in which a plaintiff had sued her employer and two of its employees, asserting claims of sexual harassment during and retaliatory discharge from her employment.

For a time, it appeared the plaintiff had some smoking-gun evidence: a series of sexually suggestive text messages that one of the defendants allegedly sent to her. But the defendants called BS and sought sanctions against the plaintiff, her lawyer, and the lawyer’s law firm, contending that these text messages were a forgery.

Apart from the defendant denying that he ever sent the text messages, the plaintiff’s deposition testimony was suspect. She testified that she received the text messages on an iPhone 5 with a cracked screen, which made it impossible to take a screenshot of the texts. So, she took a photo of the text messages using a new iPhone X. Curiously, the photo did not depict any cracks in the screen. Additionally, the passcode she provided the defendant’s discovery vendor could not unlock the iPhone 5.

Later, the plaintiff filed a sworn statement with the court that she reviewed her iPhone 5 in March 2020, when the screen was not cracked but was malfunctioning and flickering. She claimed that she used her iPhone X to photograph the text messages “in a moment while the screen was not flickering” to send them to her lawyer. Then, she gave her iPhone 5 to her lawyer, which they could not unlock because, sometime after she took the photograph of the text messages, someone dropped the phone, resulting in the cracked screen that she had previously testified existed at the time she took the photograph. The plaintiff further asserted that the iPhone X she used to take the photograph also began to malfunction, and she traded it for a new phone.

Courts have inherent power under the Federal Rules of Civil Procedure and U.S. law to sanction parties and their lawyers for failing to preserve electronically stored information and vexatious litigation. Here, the district court found clear and convincing evidence that the plaintiff had fabricated the text messages, falsely testified about their production, and spoliated evidence to conceal her wrongdoing. The court also found that the lawyer had facilitated the plaintiff’s misconduct.

As a sanction, the court dismissed the lawsuit and fined the plaintiff, her lawyer, and the law firm for attorney’s fees and costs (six figures!). The Second Circuit affirmed but noted it was unclear whether the lawyer had acted in bad faith. So, it remanded the case for the lower court to conduct that analysis.

And, wouldn’t you know it? The case was promptly settled.

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