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
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, Creator s, and the Changing Needs of Copyright Law,
16 SMU SCI. & TECH. L. REV. 501, 501 (2013).
11 Id. at 511. See a lso Brian Barakat & Bronwyn Miller, Authentication of Digita l
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 P ramis, Number of Mobile Phones to Exceed World Population by 2014,
DIGITALTRENDS (Feb. 28, 2013), http://www.digitaltrends.com/mobile/mobile-phone-world-
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),
16 Maddrey, supra note 10, at 512 (citing Jonathan Good, How Many Photographs Have
Ever Been Taken?, 1000 MEMORIES (Sept. 15, 2011), repr oduced at
17 See supra text accompanying notes 11–16. (continued)