How to Obtain Proper Digital Discovery, Part I: Photography

Metadata information from a photo taken with a Sony camera

You may ask, why should I care about any of this data? Acquiring such information can be potentially critical, especially depending on your cases’ scenarios. For example, knowing what types of lenses were used to create specific digital images and/or videos, could be crucial in determining what you are viewing within such digital imagery. A wide-angle lens will make things in the background look much farther away, while a zoom lens will make these same objects or people appear much closer. If you need to reconstruct the scene from photographs, take note whether or not your scene has changed in any substantial ways since the time of the incident. Such differences could mean that recreating the scene and events that took place, through the use of digital imagery (including moments that occurred prior, during and/or post the time of your incident) may be dependent on whether you can definitively understand how and with what device(s) your digital imagery was captured. This metadata could be imperative to reverse-engineer how, what, where and why such event(s) occurred.

Secondly, the date and time information is often extremely important. We quite often see cases where the precise time a photograph was taken could be one of the most crucial facts within any given case. For example, we recently worked on the Tubbs Fire litigation, in part, identifying precisely where each photograph/video was taken. Concurrent to this effort, we also paired these locations with exact time information acquired through witness testimony and/or through embedded metadata. This combination of time and place was key to establish the actual sequence of events, leading up to and through the progression of the fire.

But remember, you cannot use what you do not have! When you first start discovery on a case, you may well have no idea what will be important until later in the case. However, if you do not ask for digital imagery properly in discovery, you will not have the metadata that could be critical later on. For that reason, when you make a discovery request for digital imagery, always ask for the original electronic images/video with all metadata intact. Never accept a PDF with the images, or worse, a color paper copy of the photographs instead of the originals. In addition to losing the metadata of an image, the resolution of such images could be extremely low, preventing its use for other purposes within litigation, such as using the photo within photogrammetry programs to place that photograph precisely into a 3D model. Or more simply, it may not be possible to zoom into a copy of the photograph to look for items not readily apparent. This in part is why “original electronic images/video with all metadata intact” is so important.

In the next post within this series, we’ll examine different techniques for uses of digital imagery within litigation.