Issue Spotting in eDiscovery Part III: Photos and Video

The following is Part III in a multi-part series on issue spotting in ediscovery. Being able to identify the issues with existing and any potentially lost data early in your case allows you to understand risks and craft an appropriate strategy for dealing with your client’s data, and what you need to request from the other side and third parties. Each type of data has its own issues to consider, and this series will highlight some of those issues and how you should factor them into your discovery strategy for a matter. Part I in the series, How and When to Start covered understanding the big picture and creating a discovery strategy. Part II in the series, Social Media discusses the unique issues to be considered when social media is implicated in discovery.

Images and video present a huge issue in ediscovery for one simple reason — ediscovery tools are text based and images do not contain text. Managing images and video so that they are useful in the discovery process requires thinking strategically about how you will want to use them and how to code them effectively during review. With a little planning and some thoughtful coding, you can organize images so they can be located quickly. Let’s talk about how.

Identify Your Data and File Types Early

Images and video cover a huge range of data and you want to understand the file types and quantities/data volume included early in identification and collection. Not all platforms support all file types, and you may have to select a platform. The file types and support required for CAD images, for example, is very different than a photo image in a .jpeg file or a .img file from your iPhone. Most all review platforms support image files, but not all platforms support larger CAD files. Video presents even more challenges. The size of the file can prevent you from viewing it in your review platform even if loaded, requiring instead that the full file be downloaded to the desktop of the reviewer to be seen. And transcription of video is yet another issue — whether it is available so that you can search the text of the video transcript is key.

Many types of cases include images these days — think construction cases, intellectual property, disability, personal injury, etc. The ubiquitous nature of cell phones with cameras means that there are images and video everywhere that may be evidence. Think about the DOJ’s collection of video and images related to the January 6 Insurrection and you can start to see the issues associated with images. We’ve also covered the preservation of video on multiple editions of #caseoftheweek. Once preserved and collected, you have to know how to handle it.

File types for images may include:

  • JPEG or JPG. A compressed image file in which the quality of the image decreases when the file size decreases. Meaning that the compressed file is smaller than the original, exported file. Since JPEG images lose quality when they’re scaled, they’re considered raster images. Scaling a JPEG may cause a loss in quality and cause blurriness or pixilated images when scaled past the size of the original saved file. You’ll want to pay attention the the file size and resolution depending on how you want to use the image. Is there text on the photo or a person or object that you want to blow up for trial? You’ll need to make sure you have an acceptable file to make the enlargement possible. Of course, the trade off for larger images is larger data sets, and at a cost per GB, they add up.
  • PNG. PNGs are image file types used in web projects and web design. PNG files file type allows the user to preserve transparencies, which allows for a sharper image for the web. PNGs can’t be used for printing, so you’ll need to convert them for production purposes. But PNGs can also contain text or logos that you’ll want to code carefully in review. Make sure your lit support or vendor converts these files as needed, or they can be done on the fly.
  • GIF. A GIF is a bitmap image format that you often find in their animated form. GIFs typically live on banner ads or social media sites or in text or instant messaging applications. You’ll want to make sure your platform supports the full file so that they can be used in discovery and at trial.
  • TIFF. Tagged Image File Format is the file du jour in ediscovery, much to my dismay. TIFFS are raster files that contain a large amount of data. TIFFs do not lose image quality, and the original image data is maintained no matter the amount of times you copy, save or compress the original file. TIFFs work well for printing for trial exhibits because they can be scaled without losing quality.
  • PDF. The PDF is a file type created by Adobe, this universal file type aims to capture rich information from multiple applications. A portable document format gives you the ability to present information to a wide variety of audiences more easily since anyone with Adobe reader can view the image.

File Types for Videos May Include:

  • MP4. MPEG-4 Part 14 or MP4 is one of the earliest digital video file formats introduced in 2001, and is supported by most ediscovery platforms. An MP4 format can store audio files, video files, still images, and text and provides high quality video while maintaining relatively small file sizes.
  • MOV. MOV is a popular video file format designed by Apple to support the QuickTime player. MOV files contain videos, audio, subtitles, timecodes and other media types. It is compatible across different versions of QuickTimePlayer, both for Mac and Windows. Since it is a very high-quality video format, MOV files are much larger than MP4 or other video file types.
  • WMV. Designed by Microsoft, the WMV video format is widely used in Windows media players. WMV format provides small file sizes with better compression than MP4, making it popular for online video streaming. WMV format provides small file sizes with better compression than MP4.
  • FLV. FLV was a file format used by Adobe Flash Player until Flash was retired in 2021. The FLV is one of the most popular and versatile video formats supported by all video platforms and browsers, but is no longer supported since Flash was phased out.

Indexing your data and running a file types list prior to loading data will help you identify file type related issues that need to be addressed and what additional functionality you will need to support them during review, production and creating trial exhibits.

Organizing Image and Video Data

Okay, you’ve collected your data, indexed it and identified the issues with loading the various file types for images and video. The next step is being thoughtful about how to organize that data so you can find it again. Generally, image and video files are assigned file names upon export, and users rarely change those file names to reflect the content of the data, so the file name is useless as metadata to help you FIND a specific image when necessary. So, what can you do?

The simplest way to organize this type of data is by leveraging the coding panel in your review software. Spend time reviewing the collection of images/video and identify patterns for coding that will allow you to go back and find images when needed. For example, in a construction case, create a separate coding panel for various locations or specific defects that the images depict, so you can then sort by the codes you apply. Coding creates metadata that is then assigned to an image/video and allows you to sort on the specific metadata field. For example, in the construction case, if a collection of images depict construction flaws in the concrete floor poured for a structure, a code “concrete flooring” assigned to those images will create a filter to search that lets you find those images faster. Otherwise your team will have to scroll through ALL of the images you have, one at a time, to find what you are looking for. Being proactive in coding by thinking through what data exists is a much more effective and efficient strategy. Get as granular as you need to in order to let you filter to the images you need quickly for depo prep, identifying trial exhibits or resolving whether data has been produced.

Certain platforms can also assist in trying to filter through large volumes of images. For example, specific platforms will help you identify images with excess skin in them, helping identify pornographic or inappropriate content without manual review. Know what you need to do, what the end result needs to be, and make sure the software you are using supports that goal.

Video Translation

Video presents its own unique challenges because video has sound, and sound means words. More often than not, it will be helpful to have a translation of that video that can then be searched using word searches in the database. Not all platforms have video translation built in, and some that do charge extra for translation. So know it’s an issue, understand the associated costs, and consider the value of not having to spent 2-5 hours searching for the right video and then having to watch it in its entirety to prep a witness or prepare for a deposition or trial testimony.

Final Thoughts

The goal of this series is to help you understand spot issues in ediscovery for your matters. The above tips outline generally, and there are many, many more details not included here, what you need to pay attention to with images and video. Planning early will save you hours of searching for this information over and over in your database, even if you only have a few thousand documents. Generally, the smaller the case, the less dollars are available to re-review the same data for multiple reasons.

Plan how to deal with images and video early on in review, train your review team how to code them, or better yet, segregate them and have one or two reviewers code those files using the unique coding set up for images and video. Limiting the number of reviewers/decision makers on how to code images and video means less variance in how files are coded and lets those dedicated reviewers make more educated decisions vs. dozens of reviewers coding one or two images as they come across them. You’ll be happier with the final product and better able to leverage the images/video, especially when documents are produced just days before depositions need to take place.

Plan, plan, plan. Identify what you have and the associated issues. Then organize at the outset. You’ll spend less, know more and be better equipped to leverage the data in discovery for your client.

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