THE LAWYERS WEEKLY
January 20, 2012 | 27
BUSINESS
CAREERS
Discovery involves
much more than words
Photo
Continued From Page 25
But the search for metadata doesn’t end
with the basic photo and file and any of its
versions. For example, certain Adobe Systems
Inc. software products save specific metadata
in a separate XML text file called a sidecar
file. Certain file types don’t allow metadata to
be added to them.
“It could be a licensing issue, the format
might need to be resaved and recompressed
to save that information [in the file],”
explains Colin Smith, senior solutions architect for Adobe.
You sometimes just can’t bring a file to a
legal proceeding in its original format—it
may be lost or not even exist, and the best you
can do is rely on a copy of it.
But there is a workaround.
In his book Video Evidence: a Practitioner’s
Manual, Toronto-area lawyer Elliott Goldstein
explains that workaround by quoting “Legal
Ramifications of Digital Imaging in Law
Enforcement”, a 2000 article by Erik C. Berg.
The workaround essentially entails
answering the following questions:
“Whenever an image is altered, the altera-
tion must be disclosed to the court,” Goldstein
writes. “The party seeking admission of the
‘enhanced’ (altered copy) image must also ten-
der the ‘original’ (unretouched, source) image.”
Philip Fodchuk, principal of Urgentis
Digital Crisis Solutions Inc., uses a straight-
forward technique to inform the court how he
captures video.
“If we can’t get a video file, we can play it
back on-screen and record it using [screen-recording] tools like Camtasia,” he explains.
“It lets me record everything that’s hap-
pening on my screen, including everything
we’re doing on screen—changing settings,
running the tool— so it’s very clear how we’re
doing this.”
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Web pages aren’t just ‘pages’
Lawyers may need to show photos, audio
and video clips in the context of a web page to
which they were posted. That’s when they
must capture entire web pages and not just
the elements they want to show.
It’s easier said than done. “These pages are
not just like pages of paper,” says Nevin at
McCarthy Tétrault. “They’re a collection of
small bits that are displayed together. A Face-
book wall, for instance, consists of a number
of photographs and links to other places. It’s a
great big digital scrapbook.”
“One webpage we captured had 96,000 ele-
ments. It would load into Summation as
96,000 records. Capturing all that information
in a way that you can rebundle it as it appears
to the user is a technological challenge.”
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Never work off the original file
If you want to dissect or examine a file, do
your work using a copy. Computers might
change file metadata even if you make a copy
but you aren’t likely to compromise the chain
of custody of the original to an extent that you
couldn’t explain during legal proceedings.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Don’t ‘prepare’ multimedia files
“If a client or lawyer sends me a video clip
saying ‘these are the 12 minutes we’re interested in,’ I ask: ‘So where are the other 400
hours?’ ” Fodchuk says.
“They’re just trying to be helpful,” he
explains. “It might be okay if they explained
what they did, what tools they used, so we can
understand what they changed, but nine times
out of ten, they don’t.”
In other words, the remaining time might
not be germane to the case, but if you don’t
disclose all the video to opposing counsel,
the other side might complain that you’re
hiding something. n
PICTURE THIS INSIDE THE IMAGE
Disputing or defending
the authenticity of a
multimedia file can hinge
on knowledge of the file’s
metadata. For instance,
seeing one creation date
in an image and another
in that image file’s
metadata ought to raise
eyebrows. What’s in a
picture? A lot more than
smiling faces. Here’s a
sampling of metadata to
check in various types of
multimedia files.
creation date method of creation
source aperture setting (F-number)
pixel height and width colour
representation flash mode creation
software exposure time (shutter
speed) ISO speed (sensitivity)
compression GPS location resolution
metering mode exposure program
exposure compensation frame count
focal length format date of
conversion from analog initial
source copyright information and
descriptions thumbnail for
previewing a picture
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ENZO SALLESE
Commercial Real Estate
TEL: 416.369.4107
EMAIL: esallese@mindengross.com
toronto
Welcome to our
neWest Partner
We are pleased to welcome John r. owen as a Partner to the
Baker & mcKenzie toronto office.
With over 25 years of experience in canadian income tax law, John
joins the more than 450 lawyers in our Global tax Practice who provide
comprehensive global tax advice.
recognized as a leader in tax by Chambers Global: World’s Leading
Lawyers for Business, John is similarly acknowledged by The Canadian
Legal Lexpert Directory for corporate tax and by Best Lawyers in Canada
as one of canada’s leading tax lawyers. John is also ranked as a
leading lawyer by LexisNexis Martindale-Hubbell and is recognized in the
area of tax law by Woodward White’s The Best Lawyers in Canada.
Please join us in
welcoming joHn to
our team!
Baker & mcKenzie has provided
sophisticated legal advice and services
to many of the world’s most dynamic
and global organizations for 60 years
through more than 3,800 locally
qualified, internationally experienced
lawyers in 70 offices in 42 countries.
john r. owen
Partner
+1 416 865 6947
john.owen@bakermckenzie.com
Baker & mcKenzie International is a swiss Verein with member law firms around the world. In accordance
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