How often have you accepted a printed rendering of a digital picture as authentic? For those of us practicing since the 90s or earlier, we have often accepted a witness’s testimony that a printed picture is a fair and accurate depiction of the witness’s personal observation. However, when a digital image comes into play and small details in the image could make a big difference, should we ever agree to accept anything other than a digital copy of the original digital picture with all original metadata?
Authentic or Not?
Today, “photographs” are most often created as digital image files with embedded metadata that provides significant additional information about the properties of the picture. Given the ease with which one can modify digital images on personal computers, phones, and within apps, agreeing that a printed picture is authentic without comparing it to the original digital image file could allow the admission of evidence, modified from its original form, that is prejudicial to your case. If the timing of the photo is relevant (time of day, weather conditions, time of year, etc.) and you do not get the original metadata for the picture, you will lose the ability to verify the picture was taken at a relevant time and in relevant conditions. For example, GPS metadata in pictures can verify the specific locations of the pictures. You can verify those questions with the metadata and no longer have to rely solely on a witness’s testimony. The metadata may open up opportunities for effective cross-examination.
Getting What You Need
If opposing counsel produces prints of digital images but does not produce the digital image file, there are several steps to consider. A follow-up call about the missing digital files should resolve the issue. If not, consider formal discussions and motion practice if necessary. Formal discovery should seek information about:
1. the device used;
2. how the party transmitted the image from the device at issue to the print photograph;
3. the location of the original digital image file and seek its production with all metadata intact;
4. whether any copies of the digital image file were created and whether they still exist; and
5. if the original and digital copies no longer exist, the circumstances of their deletion/destruction.
The Bottom Line
When dealing with a digital picture as the producing party, you must take care to understand what data comes along with the photo and to preserve such data as it may become very important, depending on its nature and the issues in the case. Failure to handle such pictures properly can raise issues of spoliation and authenticity. Metadata with digital images may be a rich resource and neither party in litigation should ignore them.