The Lawyers Weekly - January 20, 2012

THE LAWYERS WEEKLY
January 20, 2012 | 25

BUSINESS
CAREERS

hile defending a client against someone claiming damages for having become disabled, Dera Nevin’s case took a strange turn when a photograph sur- faced: It was “of a guy jumping across the finish line, hands in the air, after a half-marathon,” she recalls. “The photo clearly showed his bib number and his last name, which was quite unique, and the name of the race,” says Nevin, senior director for litigation support at McCarthy Tétrault LLP. Not so long ago, such evidence might have been supplied by old-fashioned gumshoe work of a private investigator staking out he race with a 35mm camera, and who might be called upon to swear over a bible to the photo’s legitimacy in a court of law. Not quite so today: In an age when the minutiae of people’s lives— written and visual, imperfect and pluperfect — often finds its way onto the Internet or an electronic gadget, all Nevin’s legal team had to do was put someone’s mousing hand to work. Trolling websites or devices for incriminating evidence would seem as easy as shooting fish in a barrel. But photos, audio and video clips collected online or from phones or tablets might not hold up during legal proceedings. “Challenging how counsel identifies, collects and preserves evidence is becoming standard practice in Canadian courts,” says Philip Fodchuk, principal of Urgentis Digital Crisis Solutions Inc. “The more you handle a file, the more you change its attributes.” Changing a file’s attributes raises a red flag for anybody seeking to challenge it. Such a scenario made the news in December involving Pakistani model Veena Malik who appeared on the cover of FHM India apparently naked and with a tattoo on her arm of ISI, the initials of Pakistan’s intelligence agency. It stirred controversy and now her lawyers are suing the men’s magazine, alleging the photos were doctored. Their likely first line of attack? The chain of custody of the photos. “If I take a photograph off the web, I don’t have true chain of custody back to the moment of creation,” Nevin says. “The chain of custody is implicitly flawed.” As it turned out, the photo that Nevin’s team found of the alleged disabled man didn’t need to go to court— she was able to rely on it another way. “The clerk I was working with discovered [that] photo using Google three days before a significant trial in which this individual claimed he was permanently disabled,” she recalls. “We called the company [that sponsored this race] and got his waiver form in which he said he was not aware of any physical, mental or emotional difficulty that would prevent him from participating in the race. “We had conversations with his attorney and arrived at a good result.” People and businesses create more multimedia— photos, audio and video — than ever, and lawyers increasingly need to handle it as effectively as they do text. But multimedia analysis remains outside most lawyers’ bailiwicks in part because of a dearth of widely available technology and a lack of expertise handling the technology. People usually make such changes inadvertently, especially since each application used to manipulate a file adds its own metadata to that file. For instance, consider a photograph taken on a digital cam- era: It might have the date the picture was snapped stamped on it. But there is a lot more information that is associated with the image in the background file — from aperture setting to resolution (some cameras can even record GPS location). More data is generated when the image is transferred to a computer, and if any application is used to manipulate the image — or, in modern parlance, if it has been ‘Photoshopped.’ W