Should Digital Pictures be Preserved?

Pictures can be valuable ways to quickly convey information and help illustrate testimony.  Nearly all photographs are now taken digitally.  Yet in many files I handle, someone will merely print the photograph and produce that printed copy.  Sometimes they will take a picture of the picture and then produce that file. In either scenario, the original, digital photograph is not kept or produced.  In a world where every photograph could be subject to filters and deep fakes are near reality, is keeping the digital file important?

Gilley v. Eli Lilly and Co.was a wrongful termination suit where the employee was terminated for allegedly falsifying timely completion of certain training requirements.[1]  To prove completion, Plaintiff used her phone to take digital photos of a certificate of training and provided a copy of the photos to Defendant.  Plaintiff did not preserve the “digital files of the photos.”  Defendant argued that the “the digital images—more specifically, the metadata attached to the digital images—‘could provide information regarding the precise date and time the photograph was taken and when it was saved to various locations.’”

The court agreed and found negligent spoliation of evidence.

The Court further finds that these images in their printed form are not equivalent to the images in their digital form. Plaintiff does not dispute that metadata, including the date and time the image was captured, are not available to the Defendant through the printed forms that have been provided to the Defendant. Moreover, the Court finds that this metadata has almost certainly been lost forever.

Plaintiff “knew or should have known that the digital images could be relevant to future litigation.”  Based on these findings, “a permissive adverse-inference instruction” was given “based upon [plaintiff’s] failure to preserve the digital images and their accompanying metadata.”

Someone might respond that what does it matter?  Couldn’t the plaintiff still testifiy when and where she took the photographs?  Perhaps, but she failed to keep the very evidence she asserted would support her position. 

[1] No. 3:10-cv-251, 2013 U.S. Dist. LEXIS 56755, 2013 WL 1701066 (E.D. Tenn. Apr. 2, 2013).