On June 20, 2018, we published a blog post entitled “A Digital Picture is Worth a Thousand Words – but is it Authentic?” Not long after that posting, I participated in a five day jury trial in which the issue of spoliation of digital photographs became a central issue. The spoliation issue arose in a medical malpractice action that involved the post-surgical care provided by a podiatrist who had surgically removed the patient’s fungal toenail, a bone spur and a bunion all related to her big toe that was ultimately amputated due to an alleged infection. Based on these allegations, the appearance of the toe and the timing of that appearance were central to the determination of whether our client met the standard of care in his post-surgical care of the patient.
Analog Handling in the Digital Age
The plaintiff produced printed photographic images of her toe in discovery. Though she acknowledged that the photos were taken on a digital device, she did not initially produce digital images. As the litigation progressed, we sought the original digital images and sought a spoliation instruction when they were not produced. Just prior to the first trial date this past summer and shortly after the trial court ruled for the first time that it would issue a spoliation instruction, plaintiff advised us that she had located a digital camera and a cell phone, both of which contained digital images of her toe. We sought a continuance and requested that the devices be maintained until our forensic specialist could download the images and their metadata. The Court granted our requests.
Shortly after the continuance of the original trial date, we met with plaintiff’s counsel and examined the phone and the camera. We discovered some interesting things. First, the images on the digital camera that were sharper due to having more pixilation lacked any date or time metadata. The images from the cell phone, though they had less pixilation, had metadata with dates and times intact that fit with the sequence of events laid out in the plaintiff’s medical records. We also noticed that several print images had no corresponding digital image. We learned through follow up discovery that a second phone had been used to take digital images of the plaintiff’s toe during the relevant time period but that the phone had been lost without its images being preserved.
When we compared the digital images that we obtained from the two devices that were produced against the previously produced print images, we identified significant differences in appearance. We retained a digital photography expert to define those differences. Ultimately, prior to trial, we filed a motion that sought to exclude the photos from the camera and the print images from the lost phone. We made two arguments with respect to the photos from the digital camera. First, that without a witness testifying as to when those images were taken, there were issues with authenticity and prejudice under Rules 901 and 403. We also argued based on the distortion of the print photos that had been produced and plaintiff’s original failure to preserve the digital images, the plaintiff should be sanctioned because her conduct prejudiced our client by creating tremendous extra and unnecessary litigation costs because we had prepared to go to trial twice. We also asked for a spoliation instruction given the fact that the plaintiffs had acknowledged that she and her husband had chosen not to preserve or produce digital images when they clearly had a duty to do so since she initiated the lawsuit within weeks of her last visit with our client.
The Court ultimately excluded print photos for which no digital images had been produced and limited the digital photos from the camera that could be presented to the jury at trial and also allowed for a spoliation instruction. At trial, we used our forensic specialist to establish the date and time of the images from the recently produced phone. Those images coincided with several of the plaintiff’s visits to our client and were consistent with our client’s description of the appearance of the plaintiff’s toe that was at issue. We believe that this consistency between the medical records and the images enhanced our client’s credibility. When the plaintiff worked to introduce the two undated images from the digital camera that the Court allowed, we were able to impeach the plaintiff because she had offered testimony of at least three different times in which the key picture may have been taken during the course of the case.
1. To the extent a party acknowledges having digital photographs potentially relevant to the case, whether it is a client or it is the opposing party, the photographs and metadata should be preserved.
2. Look beyond the image, examine the metadata. As noted in my previous blog post, the metadata can have essential information that can be utilized to corroborate testimony or to contradict testimony. This can be a major tool to build or undermine credibility of a witness.
3. You need to know when to call in the experts. Here, we hired a forensic specialist to get the images and metadata from the devices in a defensible way. We also consulted with an expert in digital photography when we compared what had been produced to us in print copy against the appearance of the original digital image. Many factors can impact the appearance of a print photo from whether the image was cropped to the size of the photo paper upon which it was printed to whether the printer was running low on certain types of ink. Those are some unintentional impacts that may occur. In today’s age, modification of digital images is easy to do and metadata typically will show what modifications were made and when, if any. By engaging a specialist in digital photography pretrial, we had objective data and an expert opinion to enhance our argument. Had we gone to trial when the case was first scheduled, the jury would have been left to rely on images that distorted the appearance of the plaintiff’s toe in a material way.
Practitioners need to take care with handling digital images. In today’s day and age, there is little justification, if any, for producing print copies of photos. A printed picture may be worth a thousand words, but a digital image with metadata is worth thousands more.