In this case, the emoji meant that the evidence was false and clinched an accelerated win.
An emoji says so much with so little.
It’s not every day that a lawsuit is dismissed due to emoji use. In a recent sexual harassment case, a smiley-face-with-heart-eyes emoji was one of the smoking guns.
This modern example of digital forensics shows the impact subtle changes in tech can make to a case, and how data authentication isn’t always black-and-white. Sometimes, it’s yellow and red.
The decision in this lawsuit has gained traction. News services including law360.com, lawstreetmedia.com, and ediscoverytoday.com have featured it because the decision highlights the power of eDiscovery – one of our specialties at iDS.
Determining the authenticity of data-driven evidence in this landmark case was an honor. iDS’ proven methodologies safeguarded innocent employees from falling prey to fake evidence, and the case will serve as a guide for future eDiscovery litigation.
The case brought sexual harassment, retaliatory firing, and hostile work environment claims to the forefront. Let’s dive in and see what this case can teach you about evidence.
Case Building: Brownies and Revenge
The plaintiff was working as a nurse in a hospital. She claimed her supervisor subjected her to sexual harassment for years. She said when she went to the hospital with complaints, her concerns were dismissed and she was later dismissed. She alleged she uncovered an affair her supervisor was having with another registered nurse, and that this nurse poisoned the plaintiff’s career by giving the plaintiff a brownie with marijuana in it.
A week after the plaintiff said she consumed the brownie, she showed up to work for an overtime shift. She wasn’t at her best. Her hands were shaking and she wasn’t making eye contact. She’d been pulled from the hospital floor last year for similar behavior. This time, the plaintiff was subjected to a drug test.
The hospital’s drug and alcohol policy required any employee who “reports to work under the influence of alcohol or illegal drugs will be disciplined up to and including immediate discharge.”
According to court documents, she tested positive for her prescriptions of Adderall and Xanax, but marijuana and the synthetic opioid Tramadol turned up as well. She and three other hospital employees were discharged. The plaintiff alleged that the hospital wrongfully terminated her for unknowingly consuming a special brownie. The brownie was part of a scheme to have her discredited and dismissed. The pre-alleged sexual harassment was the motive for the brownie, and her text messages were supposed support her alleged sexual harassment, but the plaintiff made a mistake when she fabricated her evidence. She forgot to account for iOS updates.
Text v. Context
The plaintiff turned over her phone with a passcode that never worked, however she separately presented a sexually charged text thread she said came from her supervisor. She said she accessed the alleged thread by taking a photo of her old phone using another newer phone. Her process was suspect, but her suspicious behavior didn’t get to the heart of the matter: To prove the texts were sent to her within the given timeframe, she had to prove she received the text on her iPhone 5.
An iPhone 5 can’t operate on any software higher than iOS 10. And, on the iPhone, the fonts and emojis are intertwined with the operating system. Emojis have gone through subtle changes in presentation and shading with different iOS updates, and the plaintiff’s “evidence” features an emoji with glossy eyes indicative of an iPhone running on iOS 13. This version could not exist on an iPhone 5. The court dismissed the plaintiff’s lawsuit against the hospital. Sad face.
- eDiscovery is more than just words.
As more and more of our lives are digitized, the traces and characteristics created by the systems we use can be as important, or more important, than the words we type.
- Everything is interconnected
IN a digital world, our evidence is digital and we all have tools that can create and edit digital files. As a result, it’s actually fairly easy to make a good fake. However, it’s hard to make a great fake, and it’s virtually impossible to make a perfect fake. Unexpected details, like the operating system used to create the text, and connected systems like the phone and the cell service company, can help form an accurate timeline of reliable evidence. You never know what will be important when it comes to eDiscovery. An experienced eDiscovery Consultant can test many aspects of the available data.
iDS provides consultative data solutions to corporations and law firms around the world, giving them a decisive advantage – both in and out of the courtroom. Our subject matter experts and data strategists specialize in finding solutions to complex data problems – ensuring data can be leveraged as an asset and not a liability.