Ed. note: Please welcome our new legal technology columnist, Jeff Bennion.
A few months ago, an internet artist named Kyle Lambert posted a video proclaiming to be the “world’s most realistic finger painting,” which he made with a $6 iPad app called Procreate. That video has over 13 million views now. Little did he know, he was also teaching us all valuable lessons about e-discovery and the importance of metadata.
The painting was a reproduction of a photograph taken of Mr. Freeman by photographer Scott Gries in 2009. I know this because I found the original with a simple Google image search, right-clicked on the image, went to Properties and went over to the Details tab and saw that data embedded in the photo:
Also, the description in the YouTube video says so.
If you are like the 95% of people who don’t click on videos you see linked in articles, allow me to summarize for you….
The final product was awesome. In fact, it was too awesome. It looked just like the original photo, down to the bends in every wiry little beard hair:
The Internet was split over calling him a fake and thinking he was a miracle artist. Apparently, Procreate comes with a feature that records the strokes made to create a file. The makers of Procreate came to the aid of the Internet artist with a press release. They said they inspected the native file and confirmed that it was created in Procreate (by the way, here’s where you can buy a copy):
The .jpg export is still on Kyle Lambert’s webpage here, but the Procreate makers say that you need to see the larger resolution full-sized export to really see the finger strokes and appreciate its authenticity.
Actually, the metadata in the .jpg export on the website tells us quite a bit about the authenticity. If you right-click on the file “kyle-lambert-morgan-freeman-photorealistic-ipad-painting.jpg,” you can see the following:
The .jpg export was created in July 2011 in Adobe Photoshop CS6 — two years before Procreate v.2 came out. But that’s not the end of the metadata trail. If you open the file in Photoshop, you can see more of the metadata. The File/File Info command confirms that the “export” was in fact created in Photoshop CS6, and it also shows the codes for several hundred paste-or-place codes, which, in essence, are records of him moving things around in Photoshop:
Federal Rule of Civil Procedure 34(b)(2(E)(ii) says that if you do not specifically request the metadata-rich native files, the responding party has the option to give you the files in a “reasonably usable form.” What does that mean?
If the native file, like the .jpg export mentioned above, has valuable metadata in it, and you don’t ask for the files to be produced in native, the party might be able to just give you everything as a tiff or “print to PDF file” with all of that information erased. The advisory comment suggests that you can’t intentionally degrade a file format to remove information, but that requires a judge to understand what a “significantly degraded” file format is and how it affects searching electronically stored information.
So, the TL;DR version: ask for native files. They give you important information, and if you ask for them, the other side needs to give them to you.
Jeff Bennion is a solo practitioner from San Diego. When not handling his own cases, he’s consulting lawyers on how to use technology to not be boring in trial or managing e-discovery projects in mass torts/complex litigation cases. If you want to be disappointed in a lack of posts, you can follow him on twitter or on Facebook. If you have any ideas of things you want him to cover, email Jeff at email@example.com.