1. It seems the issue of reliability in using a file’s “Creation Date” may not have been considered by plaintiff’s counsel as an argument regarding when the pictures were actual taken. But, since that topic wasn’t raised by counsel, it couldn’t be addressed by the court. So the entire matter depended on the larger issue of access to mobile devices, which may be what plaintiff’s counsel wanted to do in the first place as a better argument.

    Aaron Taylor

  2. I used that argument 20 years ago when talking to judges that didn’t understand technology – although I’d put it “You wouldn’t let opposing counsel go rummaging through every filing cabinet, desk and trash bin in a party’s office – but that’s exactly what requiring the production of an entire hard drive image amounts to doing.” This is back when attorneys routinely tried to compel production of forensic images of every custodians’ computers in general civil litigation. It was overkill then, and it’s overkill now. I know it’s not true, but I’d like to think that maybe this judge heard me say that and it stuck… 😉

    That said, I couldn’t agree more with the decision here. It seems the real issue is that you have individuals making arguments over electronic data without really understanding what they are arguing. The file system metadata is often meaningless, and the embedded dates whenever available are always much more reliable and meaningful. The entire argument could have been avoided though with about 1 hour of an expert’s time. A few hundred dollars of expert advice and an affidavit from same would have saved untold thousands spent on motion practice and appellate practice. Such a waste… but sadly, all too common.

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