The internet is full of warnings about fake images. Everything from invoices to photographs can be manipulated. You have probably seen the iPhone commercial where the mom is taking pictures of the son. Then, when he is reviewing those pictures, he sees one with his mom in the mirror, and with a touch of finger she is gone. How easy would it be to escape liability by removing a bucket that someone ultimately tripped over?
My first exposure to a fraudulent document in the construction world was a certificate of insurance.
It was on the typical ACCORD form. But there were certainly things that did not look right. The policy number contained letters and numbers almost like a complex password. There were different fonts in the various boxes.
Sure enough, when I sent the demand for defense and indemnity, the insurance agent responded to say they represented no one by that name or business. Around that time, the Texas Supreme Court issued a case where it stated a certificate of insurance is not worth the paper it is written on. Who knew this was just the tip of the iceberg?
A Fake Safety Operations Manual!
But what really caused me to write this article was a recent situation. A client asked a distributor for a manufacturer’s safety operations manual. At first, the vendor told the client that the manual did not exist. But then, (seemingly through AI) the vendor cobbled together an instruction safety operation manual for a mechanical item. Had it not operated properly, the item could seriously hurt or kill someone.
The clues were several sections that were not applicable to the item and multiple typographical errors and mis-matched page numbers. When questioned further, the distributor admitted that they had indeed created the manual from scratch.
As attorneys, authentication of a document or photo can be a threshold question to whether it is admissible. This was a big issue when items were faxed and cut off, blurred, or otherwise unreadable. These days, with scanned in documents, there is occasionally still a problem. But not nearly as much. Though now, we face another much more difficult challenge–manipulation of documents, photos and videos—and more importantly, how to spot them.
When obtaining photographs, make sure to ask for the native versions and confirm date stamps. Cross-reference other objects in the photographs to make sure they were in place at that time. Check daily records to confirm when certain tasks and items were completed. For instance, was the final grade finished before or after the logo sign was installed on site? That tipped me off in one case.
Look for odd images, what looks like three arms, and one much shorter than the other. On videos, people moving a mechanical fashion is another tip off.
Unfortunately, the fakes are getting better and better, and harder to spot.
Don’t take any document or picture for granted. Text messages are sometimes the main exhibits in cases. If a photo is in a text message, make sure to retain the entire message with time and date.
Things are no longer the way they seem. The old adage “trust but verify” is more true today now than ever!
Matthew L. Motes is a partner in the Fort Worth office of Shackelford, McKinley & Norton, LLP, and can be reached at 682-339-9870 or [email protected]. The firm also has offices in Dallas, Austin, Houston and New Orleans with a strong foundation in all areas of construction law and construction/design defect litigation.
