Metadata in Digital Photography: The Need for Protection and Production of this Silent Witness

• Author: James E. Bibart
• Position: James 'Ted' Bibart, J.D., Capital University Law School; B.A., The Ohio State University. I would like to thank my wife, Nkechi (without whom the achievement of my life's dream would not be possible), and daughter, Isabella, for their patience and support in the completion of this work and my legal training as a whole. I would also like to...
• Pages: 789-830

METADATA IN DIGITAL PHOTOGRAPHY: THE NEED FOR PROTECTION AND PRODUCTION OF THIS SILENT WITNESS JAMES E. BIBART * I. I NTRODUCTION We cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seals the similitude of the object on the photograph put before the jury; it would be more accurate than the memory of witnesses, and as the object of all evidence is to show the truth, why should not this dumb witness show it? 1 The preceding commentary on the importance of photographic evidence was offered by the Supreme Court of Georgia in 1882, 2 yet even today the validity and pertinence of the statement remains. In fact, the power of the court’s observation shined clairvoyant light on a future component of modern photography that the Georgia court could not have imagined at the time: metadata. 3 The area of discovery encompassing electronically stored information (ESI) is ever evolving, and rules of civil procedure and evidence are being stretched and manipulated to accommodate the demands of advancing technology and its role in litigation. American dependence on smart phone technology is pervasive and has paved the way for daily capture of the digital photograph. In litigation, a picture truly paints a thousand words and can be Copyright © 2016, James E. Bibart. * James “Ted” Bibart, J.D., Capital University Law School; B.A., The Ohio State University. I would like to thank my wife, Nkechi (without whom the achievement of my life’s dream would not be possible), and daughter, Isabella, for their patience and support in the completion of this work and my legal training as a whole. I would also like to thank John Gordon for giving me the opportunity to assist him on the case that inspired this Comment, and Professors Susan Gilles and Margaret Cordray for their expertise in refining my analysis. Finally, I would like to thank my mother, Lois Bibart, for her unwearied love and support and my father, Richard L. Bibart, in serving as a role model, a mentor, and a most powerful witness. 1 Franklin v. State, 69 Ga. 36, 43 (1882). 2 Id. at 43. 3 Metadata is a set of data that provides information about other data. In this Comment, digital photography metadata includes information about a photograph, such as the date and time the photograph was taken, the location of the photograph, which device took and stored the photograph, whether the image was altered (and when and how), and even what type of camera lens was used to capture the image. (continued) 790 CAPITAL UNIVERSITY LAW REVIEW [44:789 the most influential piece of testimony in determining the fate of a case. When this independent corroboration of witness testimony is available, the interests of expedient justice on the merits of the case support the corroborating evidence’s relevance and admissibility. Metadata—defined as “information about information”—embedded in digital photography provides just that corroboration. 4 This Comment examines, through the lens of metadata in digital photography, the symbiotic relationship of decisional law with the Federal Rules of Civil Procedure and Federal Rules of Evidence, and the corresponding role of judicial analogy in assimilating new technological forms in trial advocacy. The confluence of these perspectives arrives definitively at the following: metadata within a digital photograph should always be presumed relevant; 5 preserved in reasonable anticipation of litigation; 6 disclosed in its native format; 7 authenticated by evidence describing the process or system used to produce the result and a showing that the result was accurate; and afforded heightened levels of protection from spoliation by the newly-proposed Rule 37(e) 8 in the Federal Rules of Civil Procedure. This Comment stands among the many that seek to overcome the mountainous obstacles found in the way of uniform judicial treatment of ESI and seeks to provide a foothold for climbing the mountain so clarity may reign. To accomplish this task, system metadata within digital photographs is a scalable pass through that mountain. The familiarity and prevalence of the technology, and the comprehensibility and fidelity of its creation, provide a recognizable path to begin the climb. This Comment analyzes representational cases not only to demonstrate the problem, but also to diagram the solution. The 2014 proposed amendments to the Federal Rules of Civil Procedure reveal a groundswell of judicial innovation becoming codified in the rules, and also support the proposal presented here. Through judicial analogy, the relatively new technology of metadata in digital photography is assimilated by linking it to an already existing form: photographs themselves, particularly those introduced as substantive evidence under the “silent witness” doctrine. Judicial treatment of photographic evidence, spanning over a century, provides the precedent to employ analogical reasoning for a sound theory for the orderly treatment of metadata in digital photographs. And by this 4 See Thomas Y. Allman, The Impact of the Proposed Federal E-Discovery Rules, 12 RICH. J.L. & TECH. 13, 15 (2006). See also infra Part II.B.2. 5 See infra Part III.C.1. 6 See infra Part III.C.3.a. 7 See infra Part III.C.3.a. 8 FED. R. CIV. P. 37(e), Failure to Preserve Electronically Stored Information. 2012] METADATA IN DIGITAL PHOTOGRAPHY 791 route, inroads into the area of ESI permit the common law treatment of metadata in digital photographs to evolve into less proscriptive rules applicable to both the discovery process and to judicial proceedings. The result will be hope for more prescriptive rules of civil procedure and evidence in the area of ESI, greater notice to litigants, lower cost of discovery, and more cases decided on the merits. A. Evolution and Influence of Digital Photography and Cell Phone Cameras Photography revolutionized trial advocacy, 9 and the photograph has been described as having “changed the world.” 10 Photography has experienced drastic change, especially after the appearance of the first digital camera in 1975. 11 Digital photography is now considered “the only commercially viable method [of photography].” 12 With the advent of cameras in cell phones, individuals are capable of capturing an untold number of photographic images. 13 At the end of 2014, an estimated 7.3 billion cell phones were in use, 14 and 83% of those cell phones were camera phones, equating to over 6 billion cameras in the world equipped to capture digital images at a moment’s notice while connected to mobile networks. 15 At least 3.5 trillion photographs are estimated to exist, and “as a society [we] take approximately as many photographs [every two minutes] as were taken in the 1800s.” 16 Therefore, a vast majority of the photographs in existence and—to a greater degree—those taken in the last fifteen years, have been captured using digital cameras; namely, cell phone cameras. 17 9 Sumner, supra note 1, at 406. See also Kansas City M. & B. R. Cov. Co. v. Smith, 8 So. 43, 44 (1890). 10 Thomas Maddrey, Photography, Creators, and the Changing Needs of Copyright Law, 16 SMU SCI. & TECH. L. REV. 501, 501 (2013). 11 Id. at 511. See also Brian Barakat & Bronwyn Miller, Authentication of Digital Photographs Under the “Pictorial Testimony” Theory: A Response to Critics , FLA. B. J., July/August 2004, at 38. 12 Maddrey, supra note 10, at 504. 13 See id. 14 Joshua Pramis, Number of Mobile Phones to Exceed World Population by 2014, DIGITALTRENDS (Feb. 28, 2013), http://www.digitaltrends.com/mobile/mobile-phone-world-population-2014. 15 Tomi T. Ahonen, The Annual Mobile Industry Numbers and Stats Blog — Yep, This Year We Will Hit the Mobile Moment, COMMUNITIES-DOMINATE.BLOGS (Mar. 6, 2013), http://communities-dominate.blogs.com/brands/2013/03/the-annual-mobile-industry-numbers-and-stats-blog-yep-this-year-we-will-hit-the-mobile-moment.html. 16 Maddrey, supra note 10, at 512 (citing Jonathan Good, How Many Photographs Have Ever Been Taken?, 1000 MEMORIES (Sept. 15, 2011), reproduced at https://rleephotography.wordpress.com/2012/11/15/3500000000000-images-and-counting. 17 See supra text accompanying notes 11 – 16. (continued) 792 CAPITAL UNIVERSITY LAW REVIEW [44:789 B. The Proliferation of Metadata and Its Prevalence in Litigation Metadata rose to prominence in litigation along with the groundswell of electronic documents. 18 Electronic documents contain metadata that describes the history, tracking, or management of the electronic media. 19 The large and growing amount of information created and stored electronically has been estimated to account for 92% of all new information. 20 Although metadata was “reviled at one point as being useless and totally irrelevant to any judicial proceeding,” 21 litigants and the judiciary quickly took note of the significance of this electronically stored information and corresponding metadata, and soon found it “of more value” than paper counterparts 22 because “metadata shows the date, time and identity of the creator of an electronic record, as well as changes made to it.” 23 Metadata is categorized in three types: substantive, embedded, and system. 24 Substantive metadata is produced by “the software used to create the document,” describes the document, remains with the document when moved or copied, and is “useful in showing the genesis of a particular document” and its history of revision. 25 Embedded metadata is “inputted into a file by its creators or users,” such as formulas used to create spreadsheets, “but . . . cannot be seen in the document’s display.” 26 System metadata, such as that found attached to digital photographs, “reflects automatically generated information about the creation or revision” of electronic media, and is recognized as “most relevant” if authenticity of the electronically stored information is at issue. 27 18 Mike Breen, Nothing to Hide: Why Metadata Should Be Presumed Relevant, 56 U. KAN. L. REV. 439, 440 (2008). 19 Id. at...