Importance Of Metadata In Reviewing Evidence

The Johnny Depp v. Amber Heard trial has caused a lot of interesting discussion the last few weeks as we get a look inside the private lives of celebrities. All court proceedings are open to the public, however, most are not televised so we rarely get to see a trial take place let alone one that gives us a deep look inside famous lives like this one does.

This trial is a defamation trial, but it really plays more like a divorce trial. There are a lot of salacious details about drug use, excessive drinking, careless spending, hangers on, and the “team of people” that surrounds these celebrities in their day-to-day life. There is also a lot of alleged violence; violence that appears to have been perpetuated by both of them. Throughout the trial we’ve heard she was the aggressor, he was the aggressor and that they engaged in mutual combat. Ultimately the jury will decide which of these scenarios is true.

However, when we get past all the fancy things of their lives, you see that these celebrities are fallible people just like the rest of us leading ordinary lives with a lot less drama. They make bad decisions. They fight with their spouses, children, and family members and have dysfunctional relationships. They just want to be loved and appreciated for who they are not what they can do for others or what they can buy like the rest of us. We often see these people and think that they don’t have the same problems that we do but the fact is they do, except theirs often occur in a fishbowl with other people watching.

We’re watching this unfold because in a 2018 opinion editorial (op ed) published in the Washington Post, Heard claimed that she was a victim of domestic violence. She never mentioned Depp by name, instead she said “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” She was ostensibly referring to her restraining order filed against her ex-husband Johnny Depp and the alleged impact her speaking out had on her career.

Depp alleges that he is the victim of domestic violence at the hands of his ex-wife and the op ed cost him his career. Depp claims that she severed his finger, defecated in their marital bed, hit him, caused problems with his children, and ultimately that Disney fired him as Captain Jack Sparrow costing him $42 million dollars. Heard claims that Depp had a problem with drugs and alcohol and was a dangerous person. So far the evidence shows that both of them behaved badly and tried to put the best possible spin on the situation.

They both recorded each other in their daily lives and that evidence will most likely tell us much of what happened in their lives – however audio recordings do not always fully and accurately reflect what is happening. He has testified that he recorded to prove to her what she said because she would say horrible things and then later deny it. She hasn’t told us why she recorded yet but so far the evidence demonstrates that she started taking pictures and recording long before he did. Some evidence was offered that they recorded at the direction of their therapist to help them communicate better.

Regardless of why they recorded one another, this kind of evidence is abundant in today’s cases. Between social media, text messaging and the ability to quickly record both audio and video with smart phones, nearly everything is captured for posterity. The first thing I ask a new client is what evidence they have in terms of audio or video recording, social media, and texts. The lack of such evidence tends to show quite a bit too.

This trial demonstrates how much we document the monotony of everyday life. We no longer live in the moment; we live to record the moment to share it publicly later to prove the greatness of our lives. If something is significant in any way, we take a picture of it in our selfie society – grandma taught us a long time ago that a picture is worth a 1000 words. Ms. Heard took a lot of pictures along the way to document the alleged abuse and Mr. Depp’s excessive ways. She took photos of the alleged injuries she sustained. Her home photos are now being compared to media photos taken at or around the same time of her injuries.

Depp has alleged that Heard doctored the photos and/or enhanced the photos with makeup. Heard alleges that she used makeup to cover up the injuries in the media photos. I admittedly have not had the time to watch all the testimony but I’ve yet to hear from or see any testimony from an expert on any of the photos. Expert testimony on the validity of the photos seems to be missing information which could substantiate or unsubstantiate either side's allegations. For a photo to be admitted into evidence it has to either be stipulated to by both parties or the sponsoring party must testify that it is an accurate depiction of the scene it depicts. Sponsoring testimony should included the who, what, when, where, why, and how of the photo and any information based on the changes to the photos.

Sometimes the only way to find out if a photo has been altered is to look at the metadata in the electronic photo. All electronic data has metadata that is imbedded in the media. Metadata call tell you when a photo was taken, where it was taken, the device used, and whether the file has been altered. All of this is important to know whether the photos taken by Heard herself or the media have been altered or enhanced in any way, whether to create bruises where none existed or to clear them up. One article I read on the importance of metadata stated “If a photo is worth a thousand words, then metadata is worth a million!”

For instance, there is an app that anyone can download on their phone and create photos with realistic looking bruises. I learned about this app in a case where one parent alleged the other parent injured the child. Photos were allegedly enhanced with the app called “Fight Photo Editor.” Proper analysis of the metadata was an important deciding factor in determining whether allegations were true or trumped up. Additionally, very early in my career, before phone cameras were significantly used, I tried a case in federal court that involve 4 tractor trailers being involved in a crash on the Turner Turnpike which resulted in the loss of 2 lives and life changing injuries to others. Metadata was extremely important to that case because a big issue in the case was whether the second tractor trailer involved in the accident could timely see the first tractor trailer to take evasive action to avoid hitting it. The truck and tractor were turned over on their side with the undercarriage facing the second oncoming vehicle which was my client. From the photo it looked like the underside of the truck was highly visible and something that the second truck should have easily seen. But when we delved into the metadata there were questions about the type of camera used to take the picture, the candlepower of the flash versus the candlepower of the headlights, the distance between the flash and the headlights lighting up the bottom of the car and many other factors. If the photo was taken at face value it appeared that the truck was highly visible and reflective when in reality the bottom of the truck was dirty and dark and not really reflective. The exploration of the meta data and these factors was a very important deciding factor in the case. I hope as this Depp/Heard trial moves forward we will see a photo expert who will come forward to discuss the photos those taken by the media and Ms. Heard to help us all resolve wheat we think happened between these 2 in their relationship.