Viewpoint: Evidentiary Issues with Google Earth Images in Property Claims
In recent years, the use of Google Earth’s satellite imagery has become an increasingly common method for locating or viewing specific addresses. Google Earth uses high-resolution cameras to obtain satellite images, which gives users a bird’s eye view of nearly any location in the world. In producing these images, Google Earth automatically places certain markers and labels onto its images to assist with identifying specific locations.
Consequently, Google Earth has emerged as a potential source of information during the investigation of property damage claims and of evidence in the event disputed claims are litigated. As such, Google Earth images are a popular tool used both inside and outside the courtroom.
In the context of disputed first-party property claims, Google Earth images can be helpful in establishing a property’s pre-loss condition, changes in the property’s condition over time (including wear and tear), and the existence or non-existence of specific structures or property on the premises. These images can be particularly useful where the claimed loss potentially involves pre-existing damage that falls outside of the applicable policy period, which may have an impact on whether and to what extent insurance coverage is afforded under the applicable policy.
In litigated claims, the admissibility of such images may be critical for both insurers and policyholders alike. While pictorial testimony has typically been used to authenticate photographic evidence, courts are now drawing distinctions between ordinary photographs and Google Earth satellite imagery. Growing concern surrounding emerging technology that allows digital modification of online images has led some courts to apply evidentiary rules more stringently against parties seeking to rely upon Google Earth images. For instance, courts are analyzing closely the markers and labels of each image, with particular emphasis on date markers. Thus, for parties who wish to use Google Earth images in a litigation context, it is important to remain mindful of the potential challenges associated with the admissibility of such images.
While Google Earth uses some automatic labeling features, it also allows users to easily insert their own markers or labels onto satellite images, an act that some courts have deemed to impair the authenticity of the image. Accordingly, litigants should be mindful when making use of such tools, as such additions may affect the image’s admissibility.
Federal Rule of Evidence 901(b)(9) provides that evidence “describing a process or system and showing that it produces an accurate result” satisfies the requirement of authentication necessary for admissibility. Some courts have used this or similar language to exclude Google Earth satellite images that contain labels and markers in instances where no evidence has been presented to prove the accuracy of such labels and/or markers.
For example, an Illinois appellate court recently upheld a trial court’s decision to preclude consideration Google Earth satellite images that included timestamps in connection with a motion for summary judgment. In Ory v. City of Naperville, (Ill. App. Ct. May 11, 2023), the plaintiff had fallen while walking on a pedestrian bridge and filed two claims against the City of Naperville. The plaintiff asserted that the trial court had erred in granting summary judgment in favor of the defendant because, based on various Google Earth images taken over a period of several years, the city had constructive notice of the gap that existed between the bridge’s pavers.
The appellate court noted that, typically, judicial notice may be taken in circumstances presented in that case, such as “establishing geographical facts or determining the distance from one location to another.” However, the court held that the Google Earth images required additional authentication before they could be considered for purposes of summary judgment. In reaching its decision, the court found that Google Earth is typically authenticated by complying with Illinois’ own version of Rule 901(b) (9), which provides identical language to the federal rule. The court specifically held that because the plaintiff failed to show “how the photos [were] dated and show that the dates on the photos sought to be admitted [were] accurate,” the Google Earth images at issue were not admissible and could not be considered for summary judgment purposes.
Notably, however, the Ory court did not provide any guidance on how a party could establish to a court’s satisfaction that the dates on the images were accurate. This presents a potential challenge for future litigants who desire to use Google Earth images in the litigation context.
Only a few weeks prior to the Ory decision, the Massachusetts Land Court addressed both Google Earth images as well as Google Maps images. In Raccuia, Tr. Nicholas Realty Tr. v. Chen, (Mass. Land Ct. Apr. 4, 2023), the court recognized that, under Massachusetts law, the standard rule for authentication of ordinary photographs is that “they usually are authenticated directly through competent testimony that the scene they show is a fair and accurate representation of something the witness actually saw.” The court, however, held that:
If the purpose of the Google photo is more specific than confirming the general location or characteristics of a property – if, for example, the photograph is being used to identify a specific characteristic of land at a single point in time, or to measure the distance between the land and some other landmark – additional authentication may be required.
The Chen court placed particular focus on the purpose for which the defendant would utilize the Google Earth images in court. First, the court found that if the Google Earth images were used to confirm the existence and appearance of a particular fence on the defendant’s property, the most likely form of authentication would be pictorial testimony, and if such witness could not be obtained, further evidence would be needed.
Second, if the defendant sought to prove that the image was taken on an exact date, then the defendant could present (1) evidence that the image was computer generated “without any human participation;” (2) evidence of “confirming circumstances such as independent photographs taken by residents of that time period;” or (3) witness testimony specifically limited to the time period at issue. By listing these options for achieving authentication, the court rejected the plaintiff’s assertion that, absent testimony from an agent from Google or its affiliates, the defendant would not be able to authenticate the Google images. Ultimately, because the defendant’s use for the images was unknown, the plaintiff’s motion in limine was denied.
In reaching their respective decisions, the courts in both Ory and Chen relied on Jones v. Mattress Firm Holding Corp., 558 S.W.3d 732 (Tex. App.—Houston [14th Dist.] 2018, no pet.). In Jones, a Texas appellate court was similarly confronted with the admissibility of Google Earth images that included timestamps. The Jones court, relying on language identical to Rule 901(b)(9), held that because the party seeking to admit the images provided no evidence as to the manner in which the Google Earth photos were dated or any evidence that those dates were indeed accurate, the photos were deemed inadmissible. The court also refused to take judicial notice of the images’ authenticity on the basis that the plaintiff did not offer any source from which the court could determine the accuracy of the Google Earth photos. Accordingly, the Jones court concluded that the photos had not been authenticated.
In 2015, the Ninth Circuit Court of Appeals, in holding that Google Earth images with automatically labeled GPS coordinates could not constitute hearsay, provided some similar guidance to that in Chen. In United States v. Lizarraga-Tirado, (9th Cir. 2015), the court suggested that Google Earth images could be authenticated through “a Google Earth programmer or a witness who frequently works with and relies on the program.”
Although the issue of authentication was not raised in Lizarraga-Tirado, the court held that it could take judicial notice of the fact that the GPS coordinate marker at issue “was automatically generated by the Google Earth program.” In taking judicial notice, the court relied upon its own reproduction of the marker by entering the GPS coordinates reflected on the Google Earth image. The court’s experiment produced “an identical [marker] to the one shown on the satellite image admitted at trial.” This method of authentication seems to be reliable for the purposes of pinpointing a specific property’s location using Google Earth, but the challenge remains to provide authentication for the property’s condition at any given point in time as depicted in a Google Earth image.
As the above decisions highlight, Google Earth images’ admissibility may be subject to heightened scrutiny under rules of evidence when timestamps are present. To increase the likelihood of admissibility, however, it may be beneficial for litigants to provide (1) proof that the Google Earth program independently created the labels (i.e., timestamp), which may be difficult to obtain from a practical standpoint; or (2) a reliable witness to provide foundational testimony, which is particularly focused on the date and time reflected in the at-issue Google Earth image, rather than solely on whether the items in the image exist in the form depicted.
Some courts, however, are less inclined to take a strict approach regarding the admissibility of Google Earth images, even when date and time could be relevant.
For example, in 2020, a Louisiana appellate court found that images from Google Earth were admissible without heavily scrutinizing the method of authenticating those images. In Walker v. S.G.B.C., L.L.C., writ denied, 296 So.3d 1070 (La. 2020), the plaintiff sought recognition of a historical servitude of passage from his property that was landlocked. To show that a gravel pathway existed on the purported right of way, the plaintiff offered several Google Earth images of his property. Such images included dates from three separate years.
Relying on Louisiana Code of Evidence Article 901, the defendant argued that plaintiff could not submit the Google Earth images because the “[p]laintiff did not: (1) have the creator of the images testify to their authenticity; (2) get a certification from Google that the images were what they purported to be; and (3) have an expert testify that the images were accurate depictions of what they claimed to be.”
In response, the plaintiff argued that Louisiana Code of Evidence Article 901(B)(1) provides that the testimony of a witness with personal knowledge satisfies the authentication requirement necessary for admissibility of evidence, and that because each image was recognized by all trial witnesses, including the defendant, with each witness confirming the existence of the at-issue pathway, the images were admissible. The Walker court agreed with plaintiff’s interpretation of Article 901 and found that the images had been properly authenticated, despite the images being dated.
Although courts appear to be divided on the issue, the admissibility of Google Earth images may depend heavily on the specific facts of the case and the purpose for which the images will be offered (i.e., whether the date and time associated with the images are pertinent issues in the case). Furthermore, as the law further develops regarding Google Earth images, experts’ use of such images could be more heavily scrutinized, though at present, courts have generally allowed experts to rely on Google Earth images.
In light of the popularity of utilizing Google Earth images as evidence, two states have recently implemented new statutes or procedural rules to address Google Earth images in an effort to facilitate their admissibility.
In 2019, the New York State Legislature added Section 4532 to the New York Civil Practice Law and Rules, requiring courts to take judicial notice of information taken from, among other things, a global satellite imaging site. To obtain judicial notice, the proponent must, thirty days before trial, give notice of their intent to use the particular image. The opposing party will then have until ten days before trial to object. Absent an objection, the court will automatically enter judicial notice of the image.
Following this, in 2022, the Florida State Legislature similarly revised its evidence code to allow judicial notice of Google Earth images. Florida, however, requires only that the proponent offer notice to the opposing party “within a reasonable time or as defined by court order.” The same standard applies regarding the deadline by which the opposing party must object.
Unlike New York, which states that the proponent may provide the website address pathway, Florida mandates that such address must be provided within the proponent’s notice. Practically speaking, changes like these will streamline the admissibility of Google Earth images by allowing parties to enter such images into evidence without the need of further authentication, relieving proponents of Google Earth images of the burden some courts are likely to apply.
Note, however, that currently several courts disagree on whether it is even appropriate generally to take judicial notice of Google Earth images or Google Maps.
Whether other states will similarly adopt the changes that have been adopted in New York and Florida remains unclear; however, what is certain is that Florida and New York’s changes will lead to greater use of Google Earth images during litigation. The Ory, Chen, Jones and even Lizarraga-Tirado decisions demonstrate that some courts are willing to exercise strict adherence to evidentiary rules when it comes to the admissibility of Google Earth images.
Moving forward, litigants should be cautious of the manner in which they present Google Earth images, as judicial notice may not be available. Accordingly, litigants should be prepared to explore all methods, as outlined above, of establishing the proper foundation for any Google Earth images they wish to rely upon in court. As a practical matter, issues related to the admissibility of Google Earth images in a litigation setting may affect the methods by which insurers and insureds alike choose to utilize and authenticate Google Earth images during the claim investigation and adjustment process, knowing that those images may eventually need to be presented to a judge and jury.
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