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Can Metadata Support an Implied Finding of Photographic Fabrication at Trial?

Posted on July 25th, 2014

Metadata and the process of understanding its uses is an ever-growing study in the field of litigation. With each passing week we see new opinions that seek to address the implications metadata can and does have on the process of eDiscovery. With that, we turn our focus to William R. and Susan Knoderer v. State Farm Lloyds, et al., (Tex. App. July 10, 2014) and the court’s outlook on whether metadata can be accurately used to support an implied finding of photographic alterations.

The case involved Defendants’ request for “death penalty” sanctions against Plaintiffs, which were granted after the trial court came to the conclusion that the Plaintiffs had acted purposely in fraudulently misrepresenting, altering, and deleting evidence. One of the key issues was whether or not metadata could accurately prove that photographic evidence had been altered by Plaintiffs.

The photographs in issue were six images that helped to buffer Plaintiffs’ claims that they did not purposely cause water damage to their house in order to have it fixed under their insurance contract before a mold clause expired.

Defendants specifically alleged that:

1. The data/time metadata had been altered to make the photographs appear to have been taken the day after the leak.

2. The numbering of the files differed from the automatic format and there was no gap in the sequence of the photographs with the automatic format numbering, which supports alteration;

3. The copyright metadata filed was set to “WRK” – an option not available until an update that occurred significantly later, and again supported alteration; and

4. The shuttercounts values confirmed a lack of a gap in the sequence of the photographs.

Plaintiffs attempted to controvert Defendants’ opinions with testimony that stated:

1. The files could have been corrupted and then recovered, which would explain the automatic numbering and shuttercount conflict; and

2. Copyright metadata could have been added after the photograph had been taken by either the camera or photo-processing software such as Adobe Photoshop.

Evidence gleaned from metadata found on Plaintiffs’ hard drive showed that Plaintiffs had run two different “scrubbing” software programs after the trial court ordered the hard drives produced.

The Texas Court of Appeals stated that while Plaintiffs put forward persuasive arguments for alternatives to photographic fabrication, they were not so persuasive as to be conclusive. Taking the metadata showing the destruction of computer data relating to the six photographs into consideration, the metadata relating to the Defendants’ claims of alteration certainly allows a reasonable inference that the photographs were fabricated.

However, the appeals court reversed the trial court’s imposition of “death penalty” sanctions, finding that the sanctions should not be used to adjudicate the merits of a party’s claims or defenses.

Did You Know: A Single JPEG or TIFF image file contains around 296 common pieces of metadata that are likely to be embedded with it.

ILS – Plaintiff eDiscovery Experts

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