The incorporation of digital photography as a form of data collection in the practice of law raises interesting issues that warrant consideration, or perhaps even policy decisions.  This letter describes the state of digital and film-based data collection as it relates to the legal community.  Two questions will be addressed: "What does it mean?" and "Why should attorneys care?"

What Does It Mean?  In two words, data storage.  A digital image file created by a digital camera, and chemical alterations to plastic film created by a traditional film-based camera are both forms of data storage.  Light, reflected off or created by an object or scene is transformed by a camera into a medium that allows later retrieval of a facsimile of that object or scene.  Digital cameras transform the light coming through the lens by a computer that assigns values to represent the color and intensity. In a traditional camera, film is altered physically by the light coming through the lens to represent colors and intensity.  When film is processed in a chemical bath, those changes are fixed.  Therein lies the first concept that counsels should address.  Digital data is not "fixed" in an unalterable state.  Even if the original digital memory media is saved, the practice of writing over image files makes it nearly impossible to authenticate the original image.

Why Should Attorneys Care?  Deleting an image file is akin to destroying data after it was collected, that may otherwise have become evidence.  Enron and Arthur Andersen financial debacles found out how unfriendly the environment can be if data is destroyed.  Many people believed that Enron’s data was evidence.  Should counsel have allowed their representatives to make the decision on what to destroy in the field by the press of a button on a digital camera?  An argument could be made that this would be no different than pressing the button on a shredder.  So what should be done? Make a policy decision not to allow anyone using a digital camera to delete image files?  Maybe, but unless the media was new and permanently maintained, it may not help.

A camera is nothing more than a tool.  Digital and film-based cameras are different tools that perform similar functions.  Direct storage of digital images has several advantages over print film.  The LCD screen on the digital camera allows immediate retrieval of the image file for viewing and critique. Image files can be indefinitely overwritten until the user is satisfied with an image.  The data can generally be quickly exchanged or copied to other media.  With the exception of a Polaroid back on a 35-mm camera, film-based cameras do not allow the user to immediately view the data collected on the film.  This creates an element of uncertainty.  Since it is advantageous to remove uncertainty, there is a psychological attachment to the digital medium as being "better".

Is digital better, or is it better just because it makes the user feel more confidant in knowing that data is collected? If an image is taken to collect data or facts and not aesthetics, we need to focus on how much data is being collected.  However, there is no direct way to compare digital images which are measured in pixels, to film which is measured in lines of resolution and granularity.  Nevertheless, we can make some gross generalizations. It is generally accepted that a minimum digital image file size to capture most of the data on a single 35-mm negative is 18 megabytes.  Even the five-megapixel digital cameras collect only about two-thirds this much data per image.  Digital is fast approaching the quality of film, but it is not there yet.  Once the data storage problem in digital is ironed out, the only limitation it will have, like film, is optics.  This is why it is so important for attorneys to begin to address the matters of data integrity.

The problem of preserving the integrity of digital media is not that people will alter or manipulate images.  The problem lays in the perception that it is so easy to do and difficult to prove.

How can the integrity of a "fluid" media be preserved?  Digital data can be easily copied, easily and cheaply manipulated, transformed and shot across the county at the speed of light.  Most jurors would know that for about thirty dollars in software we could make our kid’s fish look bigger than dad’s.  The photograph in my web site was doctored to give me whiter teeth, a healthy twinkle in my eyes and tame a few wild tufts of hair.  I considered trimming thirty pounds, but did not want to push it too far.  Now if I had not told you this, could it be proven that changes were made to the original digital image of me in my office?  The answer is theoretically yes, but practically speaking, no. Why do I say "no"?  Because it would be cost prohibitive and require sophistication that few possess.  Even then, the findings may be subjective.  The integrity of digital data will be difficult to preserve and will remain suspect unless a generally accepted industry framework is established.

Until the industry reaches that point, the following are a few recommendations to be on the safe side: use both mediums.  Photograph in film and scan the negatives to yield digital image files.  This way we have the best of both worlds.  The vast amount of secure data collected in film with the cost effectiveness and ease of use of the digital format.  Use films with fine resolution and specifically designed for compatibility with scanning.  There are situations when a digital camera is essential.  For instance, a digital camera connected to laptop and cell telephone can email images directly from an inspection site to waiting parties in a meeting elsewhere.

It is advisable to distribute images in discovery in both print and digital formats.  Labs automatically do not print severely underexposed or overexposed images.  Therefore, when photographs are exchanged, it is likely that not all the images will be produced.  However, an image not printed or produced may be the one to use at trial.  A problem develops in attempting to use an image not previously produced in discovery.  Think of an image of a hair hanging from a headliner, that may prove the linkage to an injury mechanism.  An image of the hair may be 98% black or underexposed, but the filament of hair and edge of the headliner are perfectly exposed. Unfortunately, the image may not be printed because the lab processor read the image as underexposed.  Therefore, scan all images and produce a set of digital image files in addition to prints.

The above-described recommendation is not a solution; it is a bridge during acceptance of digital photography in the practice of law. The intention of this letter is to provoke a thoughtful discussion intended to develop a solution, a framework for incorporating digital photography into the practice of law.  Digital data collection in the form of photography is a fantastic opportunity. If the integrity of the data collected in the midiums cannot be preserved, the opportunity may be lost or significantly delayed.  What do you think?