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
SUMMARY

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 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... (see full summary)

 
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METADATA IN DIGITAL PHOTOGRAPHY:
THE NEED FOR PROTECTION AND PRODUCTION
OF THIS SILENT WITNESS
JAMES E. BIBART*
I. INTRODUCTION
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 th e 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. Metadatadefined
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 P roposed Feder al 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 andto a greater degreethose 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-
population-2014.
15 Tomi T. Ahonen, The Annual Mobile Industry Numbers and Stats BlogYep, 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), repr oduced at
https://rleephotography.wordpress.com/2012/11/15/3500000000000-images-and-counting.
17 See supra text accompanying notes 1116. (continued)

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