Metadata about digital pictures are important, as discussed in two prior posts. They are so important in fact, that a local federal judge recently granted a new trial because them. The ruling underscored a point I previously emphasized.
Kraja v. Bellagio, LLC is an employment dispute. The plaintiff “testified that he took two photographs of the ‘Fat Andy’ sign at issue in this case. He testified that took the first photograph in June 2014 and that he took the second photograph in August 2014.” After trial concluded, defendant had the photograph’s metadata examined. It discovered both photographs were taken within 3 minutes of each other in August, 2014. “Kraja’s expert does not dispute that conclusion. Thus, Kraja testified falsely about the date he took the photograph that is trial exhibit 1.”
Bellagio moved for a new trial. “Not all false evidence should be the basis of a new trial. Witnesses may misremember facts and testify falsely without intending to do so. And the false evidence may not be important in the overall scheme of the trial.” The problem was how heavily Kraja had relied upon the photographs.
During opening and closing, Kraja’s counsel repeatedly called the photographs the ‘silent witnesses’ that contradicted the testimony of the Bellagio’s witnesses, even suggesting they were the ‘most important witness.’ The photographs were offered as unrebuttable proof that the Fat Andy sign had been displayed in the same location from June through September. Kraja’s counsel suggested in closing that the Bellagio’s witnesses lied because the photographs and videos do not lie.
The timing of the photograph was critical to the manner in which Kraja had presented his case, so a new trial was ordered.
Then the court addressed the elephant in the room.
Although Kraja presented the false evidence, Bellagio is not entirely without blame. Had Bellagio timely discovered this issue—and there is no reason it could not and should not have done so during the discovery period—a second trial would not be necessary. It is difficult to understand why Bellagio did not pursue this during discovery, given that each side’s story about the photograph was directly contradictory. Because Bellagio could have avoided this problem, fairness dictates that Bellagio reimburse Kraja for the fees and costs incurred in connection with the first trial.
I agree that the metadata issue could and should have been addressed during discovery, long before trial. Especially when digital photographs are at issue, the metadata can sometimes be more valuable than the photograph itself.
 No. 2:15-cv-1983, 2020 U.S. Dist. LEXIS 1424, 2020 WL 60233 (D. Nev. Jan. 6, 2020).