Bryan Neumeister — Direct/Cross/Redirect
468 linesTHE COURT: Allright. Do you have another witness? Okay. Yes.
MS. LECAROZ: Mr. Depp calls Bryan Neumeister Your Honor. Neumeister Your Honor.
THE COURT: Okay. Bryan Neumeister. Mr. Neumeister.
[SECTION HEADER]: BRYAN NEUMEISTER, a witness called on behalf of the plaintiff and counterclaim defendant, having been first duly sworn by the clerk, testified as. follows:
MS. LECAROZ: Could you please state your full name for the record. =A_It's Norbert, N-O-R-B-E-R-T, Bryan — I go by Bryan— B-R-Y-A-N, Neumeister, N-E-U-M-EI-S-T-E-R.
MS. LECAROZ: Could you start by describing your educational background, please? 21. My educational background, well, I graduated from Cal State University Northridge 42 years ago with a degree in political science. From then on, I've been working professionally in photography, totally unrelated, for the past 42 years, and that would also include videography, audio, and a few other different binary-related tasks.
MS. LECAROZ: Where do you currently work?
BRYAN NEUMEISTER: Town USA Forensic.
MS. LECAROZ: What is USA Forensic?
BRYAN NEUMEISTER: USA Forensic is a digital forensics company. We are boutique. We're very small. We work - we have offices in Grosse Pointe Farms, Michigan, and in Phoenix, Arizona. We work with varying types of clients because to us data is data, and it takes no side. So we can be ending up working for prosecution, defense, law enforcement, the Innocence Project. We have a contract with the Department of Defense. We do classified and unclassified work. We've done classified work with various agencies. We've worked with DOJ, and I've worked in 23 countries as a photographer.
MS. LECAROZ: What's your title at USA Forensic?
BRYAN NEUMEISTER: CEO.
MS. LECAROZ: Did you also found USA Forensic?
BRYAN NEUMEISTER: Originally around 1990, it was called Skymeister. And that's because of my -- the amount of helicopter photography time I have. About twenty -- about ten years ago, we changed it to USA Forensic while still doing a lot of the same tasks.
MS. LECAROZ: And you described, I think, some of the entities that you work with. What kind of work do you do for those entities that you mentioned?
BRYAN NEUMEISTER: We do audio forensics, which is clarifying audio, for example sting operations or audio that may have been picked up on surveillance or any other type of recording, removing background sounds, video clarification. We do a lot of work with Axon police cameras.
MR. MURPHY: I'm going to object to relevance. Based on the discussion we had earlier, this experience has absolutely nothing to do with anything. May 25, 2022
THE COURT: Allright. Do you have an objection to him being moved in as an expert in the field?
MR. MURPHY: Well, she hasn't moved yet. I'm objecting to the relevance of the testimony on the subject matter right now.
THE COURT: I'll overrule the objection.
MS. LECAROZ: Thank you, Your Honor.
MS. LECAROZ: Go ahead, Mr. Neumeister, You can continue, 12. A We do a lot with Axon police cameras because they don't really handle low lux levels or low light levels very well, so we clean up -- we're beta testers for a program called iNPUT-ACE, which is part of the Axon. company used by police officers. We clarify their cameras to better see what happened at night, for example, in different scenes. We do the same with surveillance cameras, any kind of camera, cell phone cameras. Also do software forensics, computer forensics, and cell tower forensics along with photographic forensics.
MS. LECAROZ: What types of cases do you work on?
BRYAN NEUMEISTER: It can be anything from Fortune 500s to it can be anything from a pro per, which is a person that's actually just representing themselves, in a smaller case to a lot of homicide cases, defamation. It can be any kind of case that requires cell phone extractions or computer extractions. Could be money laundering, could be Department of Defense identifying a voice, that type of thing. Satellite imagery, basically anything with binary information.
MS. LECAROZ: Have you been retained as an expert before?
BRYAN NEUMEISTER: Oh, yes. I would say we average about 150 to 200 cases a year. In the last four years, we've done over 600 cases, and that would be in U.S. federal courts, U.S. district courts, various state courts throughout the United States. We just wrapped up a case that was an overseas case, wrapped up yesterday. We do U.S. military court. We have a case coming up in front of the U.S. Supreme Court. So it's really - I've done quite a few U.S. District Court cases.
MS. LECAROZ: Have you testified as an expert in digital forensics before?
BRYAN NEUMEISTER: Yes. What people sometimes don't understand is that only about 2 percent of all cases go to trial. So 98 percent of the time, you're actually just doing the forensic work and giving it to the parties. And as we say, data is data; it really doesn't take a side. We don't have a narrative. So very often, it's just providing the data for the attorneys to work with or the parties.
MS. LECAROZ: Have you ever been excluded from testifying as an expert regarding any work that you performed?
BRYAN NEUMEISTER: But you have to take into account that sometimes there might be curbs put on what - for example, in this trial, there's certain boundaries, or if you're working with a pro per or with an attorney that is not very familiar with electronics. And the thing is, again, they teach Latin in law school, not binary, and binary is the universal language these days. So sometimes in the legal system, it's hard to explain to attorneys what exactly we're doing, so we try to break it down and make that work.
MS. LECAROZ: What is digital forensics?
BRYAN NEUMEISTER: Digital forensics is anything that you are using, like your television set, your cell phone, your computer, anything that runs off of binary information that has coding in it.
MS. LECAROZ: How long have you worked in digital! forensics?
BRYAN NEUMEISTER: Well, I actually-started off in the analog, so it's been 40-some-odd years. I started off as cameraman. My first cameras were film cameras. When I was a kid, my dad was a director of sales and sales service administration for the NBC television network on the West Coast, so I grew up around television cameras. My first cameras were cameras people might not have heard of: Leica, Hasselblad, cameras like that. I trained with some of the best photographers around at the time: William Wegman, Niall Latham, really excellent photographers. And I started shooting videotape from helicopters, and I logged on 140,700 hours of video. And at that time oddly enough, since we were the only helicopter, television helicopter, we were the only helicopter in Phoenix at the time. The sheriff's department did not have a helicopter. The police department did not have a helicopter, nor did Air Evac. So we ended up doubling up, being a news crew as well as an air rescue crew.
BRYAN NEUMEISTER: So as far as forensics, analog probably from 1980 to 1990, and digital from 1990 through current.
MS. LECAROZ: How did you get started in it?
BRYAN NEUMEISTER: Really by osmosis. I started in the production field. I usually don't do that much TV work anymore. I did do -- I did shoot part of an episode, a program called Planet Earth for the BBC last year. I don't normally do television anymore; it's just 99 percent forensics. But I got started because very often, as -- working in the helicopter, we'd be asked to work for a police department or a rescue or a chase or whatever the Situation might be. And since I'd be videotaping it, they would ask me to break it down frame by frame, and analyze it using what's called a time base corrector in the day. And so word got out that I could do unusual things because I'm pretty good with machines, and it just ended up. More and more people started calling, and it just became a full-time job.
MS. LECAROZ: Have you received any professional certifications in forensics?
BRYAN NEUMEISTER: Yes. But, again, most hackers and people who do interesting work don't have any certifications because a certification is usually like a week-long course. I've been doing this stuff 42 years. My partner, Matt Erickson, he's actually
MR. MURPHY: Objection, Your Honor, to the partner is not testifying to his qualifications on relevance.
THE COURT: All right. I'll sustain the objection.
MS. LECAROZ: Mr. Neumeister; can you just describe which professional certifications you have received?
BRYAN NEUMEISTER: For cell phones, Oxygen, which is a program similar to Cellebrite. These are programs that are used by law enforcement and by private parties to extract data from cell phones that has deleted or -- which is critical in a lot of cases, deleted data -- or just to what we call "image a cell phone." In other words, get every bit of data that's possible on a cell phone, and, again, every cell phone is different. The next would be in cell tower forensics.
MS. LECAROZ: Are you a member of any professional associations in your field?
BRYAN NEUMEISTER: Yes. IEEE, which is the International Engineering society, and the reason I belong to that is about 40 percent of the world's white paper on electronics are published through IEEE. So- they have a huge database on anything from microwave technology to telephone transmission technology. Anything that I might work with, they might have a white paper on it. Also, with the Auto Engineering Society, AES, I'm a member of that. I lecture to AES. There's a few others, but, again, they're just mainly to have a repository of information.
MS. LECAROZ: Have you received any honors or awards?
BRYAN NEUMEISTER: Yes. I've received about 80 honors and awards. I have -- for videography, I've got a total-of 12 Emmy award statutes, but I've been the principal in 39 Emmy awards, which means I've written music for the program and the program has won the Emmy award for music, but it was given to the production company, which happens a lot. I won for best editing. I won for best ACE editing, which is computer editing, best sound. I've won -- I've done the music to a piece that won in the Gold Lion at the Cannes Film Festival.
BRYAN NEUMEISTER: I've done the music for a piece that ran that won the gold at the Calgary Film Festival I've got a whole lot of awards from Associated Press and different companies from doing documentaries and news
MS. LECAROZ: Have you published any works in the field of digital forensics?
BRYAN NEUMEISTER: Yes. And they're mostly articles, about a half dozen or so. We don't have much time, and I don't usually do it. But it was basically on -- most of my work deals around clarifying or authenticating. So it was basically the things I published were on clarification of digital files.
MS. LECAROZ: Have you appeared on TV as an expert in digital forensics?
BRYAN NEUMEISTER: Yes.
MS. LECAROZ: Where?
BRYAN NEUMEISTER: CBS, NBC, ABC, BBC, Discovery Channel, number of different things.
MS. LECAROZ: Any particular examples of things that you've spoken on T’V about?
BRYAN NEUMEISTER: Boston bombings how the frame averaging was done on that sort of things like that Again we get calls a lot but I don't sneak specifically about cases I just speak specifically about cases I just speak about technology
MS. LECAROZ: Have you given any public lectures in the field of digital forensics?
BRYAN NEUMEISTER: Yes. We get asked quite often, but due to our schedule, it's a little rough. We do what's called Inns of Court. We do — we speak in front of private investigator groups. We do attorneys continuing legal education. Just Audio Engineering Society, just we try to hit a few a year, and that's about what our schedules will allow, given our time.
MS. LECAROZ: Your Honor, at this point, I'd like to tender Mr. Neumeister as an 14-expert in the field of digital forensics.
THE COURT: Any objection?
MR. MURPHY: No objection, Your Honor.
THE COURT: Allright. So moved.
MS. LECAROZ: Mr. Neumeister, turning to the work you've done in this case, what have you done?
BRYAN NEUMEISTER: I was asked to analyze the photographs — or photographs of purported injuries to Ms. Heard...
MS. LECAROZ: And what was the purpose of that analysis?
BRYAN NEUMEISTER: To authenticate photos or to review and see if they were altered in any way.
MS. LECAROZ: What did you analyze to reach your opinions?
BRYAN NEUMEISTER: Well, I analyzed groups of photos that were submitted by Ms. Heard's legal team,
MS. LECAROZ: What work did you do to analyze those photographs?
BRYAN NEUMEISTER: Well, normally we start off by looking at the — what's called "EXIF data." The EXIF data is the binary data that's encoded into a photograph. It tells you, for example, if the flash fired, if — what the operating software version was of the cell phone or camera that shot a photo, what type of lens was used, what the F-stop was. There's literally about a thousand lines of code in the EXIF data on a JPEG photo. So we would start with an EXIF editor or an EXIF viewer.
MS. LECAROZ: Anything else that you looked at?
MS. LECAROZ: Anything else that you looked at?
BRYAN NEUMEISTER: Yes. When we're dealing with RGB cameras, which are red-, green-, and blue-channel cameras, which would be a cell phone or a basic home camera; they're based on RBG channels. We did four types of scopes. We would do a vector scope. We do a luminance scope. We do a wave form scope and then what's called an RBG parade. And those scopes analyze different things. The vector scope analyzes where the different types of colors are headed in. For example, it's broken up into reds, magenta, different areas on a -- on a scope.
BRYAN NEUMEISTER: We would take a look at that to see if there's anything out of the normal for the type of camera being used. In other words, would there be above a certain percentage of chroma? And chroma means color saturation.
MR. MURPHY: Objection, Your Honor, Outside the scope. If we can approach, we would like to.
THE COURT: Allright. Do you want to approach? OPA A Mm RW NR May 25, 2022
THE COURT: Yes, sir.
MR. MURPHY: So this is what was part of the brief, Your Honor. He's talking about these technical elements: Chroma, chromatic values, pixels, and none of these things appear in expert disclosure. And my understanding is that's also beyond of Your Honor's ruling this morning about EXIF metadata.
THE COURT: Okay.
MS. LECAROZ: So he is -- he is talking the things that he looked at, and it's the process of his analysis.
THE COURT: I can --
MS. LECAROZ: Right. But there is -- trying while I find his designation. So you can see here, Your Honor, in his designation, goes through -- these.are the vector scopes and the chroma stuff that he's talking about right now. And this is where it's disclosed in his report, that this was something that he looked at when he was analyzing these photos.
MR. MURPHY: Your Honor, there are little color schemes there. He has never explained what those are about, what they mean. He doesn't talk. about any ‘of that in his disclosure. They literally have a picture, and he's not testifying about what it means for the first time. That's the basis of my objection. That's outside.the scope of the disclosure and outside the scope of Your Honor's ruling.
MS. LECAROZ: This was provided prior to his deposition. They had an opportunity to ask if they weren't sure what these things were or what they meant.
THE COURT: Is it in is disclosure? I guess is the question.
MS. LECAROZ: This is the disclosure.
THE COURT: This is the disclosure. You're saying that the pictures are there but didn't explain it?
MR. MURPHY: The testimony about what it means is not stated in this disclosure. And as the case law in the brief said, Your Honor, she's saying "had the opportunity in deposition," and the case law from the brief is crystal clear. That is not an adequate response. It has to be in the disclosure.
THE COURT: I'm going to sustain the objection.
MS. LECAROZ: Okay. Thank you, Your Honor.
MS. LECAROZ: Mr. Neumeister, based on the analysis you performed in this case, have you formed any opinions? 14. A _ Pardon?
MS. LECAROZ: Based on the analysis that you've done in this case, have you formed any opinions? 17. A Yes.
MS. LECAROZ: What are they?
BRYAN NEUMEISTER: Well, three basic ones. One, as quite a number of the photos have been through a photo — at least one, possibly, checksum —
MR. MURPHY: Objection, Your Honor. on NAA WN NS NO Objection, Your Honor. Foundation. Which photos is he referring to? We have to go through this one by one.
THE COURT: All right. The ones in evidence.
MS. LECAROZ: Mr. Neumeister, in terms of the photos that you looked at and that you formed opinions about, do you understand if they've been submitted as evidence in this case?
BRYAN NEUMEISTER: Yes.
MS. LECAROZ: Okay. What conclusions have you formed about those?
MR. MURPHY: Same objection, Your Honor. That doesn't cure the issue of the objection. We have to go through this. Which photos is she talking about? Which ones in evidence? What exhibit numbers? That's the basis of the objection.
MS. LECAROZ: We're talking generally about opinions right now, Your Honor, and then we're going to get into some specifics.
THE COURT: I think we have to go straight to specifics first of all May 25, 2022
MS. LECAROZ: Okay.
MS. LECAROZ: Mr. Neumeister, have you prepared a demonstrative that aids in your testimony with respect to any of the photos that you looked at in this case?
BRYAN NEUMEISTER: Yes.
MS. LECAROZ: I'd like to pull up Plaintiffs Exhibit 1303. Your Honor, if I might approach,
THE COURT: All right.
MR. MURPHY: Your Honor, I would again object. We can approach to discuss it.
THE COURT: Okay. You want to approach?
THE COURT: Yes, sir.
MR. MURPHY: These photos are in the disclosure. They are not.in evidence. There's no foundation for him to testify about them.
THE COURT: Is this part of the evidence?
MS. LECAROZ: So this is the issue, So this is the issue, Your Honor, that we discussed earlier.
THE COURT: Right.
MS. LECAROZ: The photo that's in evidence is a picture of a photo.
THE COURT: Right.
MS. LECAROZ: But you --
THE COURT: Let's start with that photo, so we'll have it and it's in evidence. And then you can -- then we're going to go from here.
MR. MURPHY: I'm saying, Your Honor, AHAI, 1824, AHA520, none of these are in evidence; therefore, he cannot testify.
THE COURT: I understand. It's part of his expert testimony. He's going to testify to it. As long as he directs it to something that is in evidence, I'm going to allow him to testify to this.
MR. MURPHY: In my - right. But he cannot testify to this because it's not in evidence is my other argument.
THE COURT: Understand what your argument is, but I'm allowing him to testify to this after we have connected it with something that's in evidence, okay Thank you
MS. LECAROZ: Tom, can we pull up Exhibit 170A, which has been admitted into evidence.
MS. LECAROZ: Mr. Neumeister, is this -- does this photo appear to be one that you have analyzed as part of-your analysis in this case?
BRYAN NEUMEISTER: There were many versions of this photo. I would say there were dozens of different versions with different chromatic values, different file sizes, different physical sizes. Some had been through Photos 1 or Photos 3, which are photo editing software programs.
MS. LECAROZ: Your Honor, at this time, I would like to show Mr. Neumeister's demonstrative, Plaintiff's Exhibit 1303.
THE COURT: Allright. Any other objection?
MR. MURPHY: I would object again, Your Honor, because the photograph in 170A is not in evidence.
THE COURT: Allright.
MR. MURPHY: But I mean the photograph is in evidence. The -- none of the photographs he wishes to show the jury are in evidence.
THE COURT: 1303 is in evidence over objection -- not in evidence, I'm sorry -- as a demonstrative.
MS. LECAROZ: Just as a demonstrative.
THE COURT: I'm sorry.
MS. LECAROZ: Could we publish to the jury, please. 14. Q And, Mr. Neumeister, what does this show about the photos that you analyzed? Well, they appear to be similar; however, if you look below at the file sizes, one on the left is 712 kilobytes. The one in the middle is 489 kilobytes, and the one on the right is 524 kilobytes. Now, what's unusual! about that is these photos will not digitally fingerprint with each other; they won't hash. In other words, to 1) May 25, 2022 forensically, they don't match, But the thing is, you could say, "Well, it was sent through email. Maybe it's a different size." The file sizes, for example, would be, possibly. Yeah, you can select the file size you send a photo, but there's no way to authenticate any photo that was presented in the way the evidence was collected.
MS. LECAROZ: And so what conclusions do you draw from that?
BRYAN NEUMEISTER: Well, there's — this is just three of many of the same type of photos that are all different sizes, different chromatic — which means color —
MR. MURPHY: Objection, Your Honor. We just had a ruling on this.
THE COURT: Allright. I'll sustain the objection.
MS. LECAROZ: Mr. Neumeister, stick to your opinions that relate specifically to what you analyzed about the EXIF data, please.
BRYAN NEUMEISTER: All three of these photos had to go through some type of transformation to change sizes.
MS. LECAROZ: We can take that one down.
MS. LECAROZ: You mentioned Photos 1.5 and Photos 3.0 earlier, I believe.
BRYAN NEUMEISTER: Photos —
MS. LECAROZ: What is that?
BRYAN NEUMEISTER: Photos 3 and Photos 1.5 are editing programs that Macintosh, or Apple, put out with their product. It's for editing photos. In other words, you would put.a photo in, and you would change the colors or you would crop it or you would clarify it by, you know, enhancing, for example, the sharpening or you could darken it. But when you save a photo through an editing program, you leave a mark on the EXIF data.
MS. LECAROZ: And what is the EXIF data? The EXIF data is a data that is embedded in a photograph that tells you a lot about the paragraph. And, again, in the early days when we were using film cameras, you would write down the F-stop, which is the light setting; you would write the type of lens you use; the time of day; the type of film stock; the type of filters you're using. Now, with digital cameras, that's done electronically. And there's about a thousand lines of code, of which 50 are probably important, that tell you what the camera is doing.
MS. LECAROZ: So what's the significance of EXIF data in your photo analysis?
BRYAN NEUMEISTER: Well, in this situation, I can see that normally, where the operating system of the camera would be, which means the version that the — of operating system the phone is running on, you would normally see something like — I'll throw just out an arbitrary number — 9.1.3 operating system for iOS, which is Apples iPhone operating system. Instead of saying that, it says, "Software: Photos 3.0" or "Photos 1.0." That means that the photo had to be rendered, which means composited together, in an editing program.
MS. LECAROZ: Did you prepare a demonstrative that
MS. LECAROZ: Did you prepare a demonstrative that shows some of your analysis of some of the EXIF data of the photos in this case?
BRYAN NEUMEISTER: Yes, I did.
MS. LECAROZ: Okay.
MS. LECAROZ: Can we pull up 1304, please. Your Honor, may I approach?
THE COURT: Okay.
MS. LECAROZ: Permission to publish as a demonstrative, Your Honor.
THE COURT: Any objection? Any objection, Mr. Murphy?
MR. MURPHY: I'm sorry, Your Honor. My cocounsel was talking to me. I'm so sorry.
THE COURT: Just to publish it as a demonstrative?
MR. MURPHY: No objection as a demonstrative.
THE COURT: All right. Thank you. We'll publish it as 1304, just as a demonstrative. 21. Q And, Mr. Neumeister, are these images in this demonstrative excerpts from the report you May 25, 2022 prepared in this case?
BRYAN NEUMEISTER: Yes, they are.
MS. LECAROZ: What do they show?
BRYAN NEUMEISTER: On this particular photo, and on all of them, it shows the first few lines of EXIF data, the ones that would be most important for this photograph. So for example of things you would see, the very top line would be the make of the phone; it's an Apple iPhone 6. And then the resolution is 72 pixel per inch, 72 to 1, and instead of where it says "software" on a normal iPhone photo, it would — instead of saying "Photos 3," it would say the software version, for example 9.3.1. And then you've got the date and the time of the photo below that, and which is really easy to change in an EXIF editor.
BRYAN NEUMEISTER: And below that, you have things like the - like the flash. You've got the exposure type, how long the exposure was. So what you just highlighted there, again, was the date and time. So that's universal time code minus whatever area you're in in the time code minus whatever area you're in the world.
MS. LECAROZ: Anything else you want to shows us with this demonstrative?
BRYAN NEUMEISTER: Yeah. Just below that, if you look, there's some things that would say, for example, "a directly photographed image." That is not going to be necessarily accurate once it's been through an editor. All those pretty much say that. So when you're looking at scene type or autoexposure, these are things that really don't matter all that much. What will matter is, for example, if you're taking notes, the focal length would be important, the pattern of metering. Things like that, to a photographer, would be important.
BRYAN NEUMEISTER: And again, this is just a few lines, and the reason I put these in there was just to explain a bit what EXIF data is. The actual thing I'm trying to point out is the fact that instead of an operating system, it shows the editing program that was used on this photo.
MS. LECAROZ: Are there additional photos that you did this analysis for?
BRYAN NEUMEISTER: Yes. Many.
MS. LECAROZ: Can we scroll to the next page, please, Tom.
MS. LECAROZ: Is there anything about this photo that you noted as part of your analysis, Mr. Neumeister?
BRYAN NEUMEISTER: Yes. Again, it's, you know, right there, you've got Photos 3.0 on that particular photo. And I think, you know, we've pretty much covered what the stuff is, but again, you see the "Photos 3.0." And again this could not come out of an iPhone this way. This would go into a computer, be edited and rendered through the photo editing -- photo editor, and this would then be embedded in the EXIF data.
MS. LECAROZ: Do you have other photos in this demonstrative?
BRYAN NEUMEISTER: Yes.
MS. LECAROZ: Allright.
MS. LECAROZ: Can we scroll to the next page.
BRYAN NEUMEISTER: Same thing. You've got up here and at top, you've got the Photos 3.0, and this is throughout a lot of the photos that are in evidence or versions of the photos in evidence were gone through Photos 3.0 or Photos 1.5, an earlier version.
MS. LECAROZ: Can we scroll to the next page please, Tom.
MS. LECAROZ: And what about this one?
BRYAN NEUMEISTER: Same thing. Photos 3.0, and again, in the photo editing app, you can do an awful lot of things. So when you see Photos 3.0, first of all you know it's not anywhere near an original. There's going to be compression artifacts because it's a JPEG file.
MR. MURPHY: Objection, Your Honor. Beyond the scope of your ruling.
THE COURT: Allright. I'll sustain the objection. Next question.
MS. LECAROZ: Move to the next page of this demonstrative, please. May 25, 2022
BRYAN NEUMEISTER: And, again, same thing. You've got the Photos app.
MS. LECAROZ: Okay. And I believe there's one final photo in this demonstrative. What about this one?
BRYAN NEUMEISTER: Again, if you look up there, it says "Photos 3.0" on that particular photo.
MS. LECAROZ: We can take that one down. Your Honor, I have a little bit left. I don't know if you wanted to --
THE COURT: Allright. You want to take our afternoon -- let's go ahead and take our afternoon recess. Just do not discuss the case, and do not do any outside research. Thank you.
MS. LECAROZ: Thank you.
COURT BAILIFF: All rise.
COURT BAILIFF: All rise.
COURT BAILIFF: All rise. Please be seated and come to order.
THE COURT: All right. Are we ready for the jury?
MS. LECAROZ: May we approach for just one moment?
THE COURT: Okay.
THE COURT: Yes, ma'am. MS, LECAROZ: So just -- sorry, Dana. Understanding your ruling on the chromatography issue, I just want to, if it would be all right, instruct the witness before we go to the next --
THE COURT: I know. We just need to talk about it and tell him --
MS. LECAROZ: Just to tell him I don't --
THE COURT: Do you have any objection to that?
MR. MURPHY: If that's all she's saying, and that's -- yes. No objection to that.
THE COURT: Ali right. Are we ready for the jury?
MS. BREDEHOFT: Yes, Your Honor. Sorry. I'I'm sorry.
THE COURT: All right. Okay. You can be seated. Your next question.
MS. LECAROZ: Thank you.
MS. LECAROZ: Mr. Neumeister, do you have another demonstrative prepared that shows a photo with EXIF data reflecting that it was saved in Photos 3?
BRYAN NEUMEISTER: Correct. Photos 3, yes.
MS. LECAROZ: Your Honor, we have a
MS. LECAROZ: Your Honor, we have a video of these photos, and we're happy to play it once so that counsel can review, if that's all 3. right.
MR. MURPHY: May we approach, Your Honor?
THE COURT: Okay.
MS. LECAROZ: You don't even want to see it first.
MR. MURPHY: I know what it is. I know what the video is.
THE COURT: Okay.
MR. MURPHY: The two photographs in the video are not in evidence, Your Honor.
THE COURT: If they're not in evidence, it doesn't come in.
MS. LECAROZ: Your Honor --
MR. MURPHY: It's ALHS7 and ALHS58, right?
MS. LECAROZ: Correct. But they -- DX708 is, and it's the same photo.
MR. MURPHY: It's visually the same ne May 25, 2022 photo, but it's not the same.
MS. LECAROZ: It's consistent with your ruling, Your Honor.
THE COURT: I've already taken care of that argument. So what part of the video doesn't have a video --
MS. LECAROZ: So he has different versions of that same photos, one that has been through a photo editor, the Photos 3 app, and one that does not indicate that it's been through Photos 3. So it just shows back and forth between the two version of the photo.
MR. MURPHY: And the basis of my objection is that neither of those photos are in evidence. That's -- well, it's beyond the scope of Your Honor's ruling, I understand that. But again, they're showing -- I would absolutely object to it being admitted as an exhibit at trial because they're not in evidence. I will still object as demonstrative, but I'm not sure if Your Honor's already going to rule against me or not because, again. the photos are not in evidence.
THE COURT: But it's the same -- it's the same depiction on a photo that's in evidence. It's just not --
MS. LECAROZ: And I'm happy to pull up the defendant's exhibit that is the same first.
THE COURT: All right. We'll see that first.
MS. LECAROZ: Yeah.
THE COURT: And then I'll allow it, okay?
MS. LECAROZ: And just to be clear too, Your Honor, on this demonstrative, it says "DX1322" because there's even yet another version that he looked at that was on the defendant's exhibit list at 1322. He didn't know, obviously, which one was coming into evidence, and so when he --
THE COURT: So what are we going to --
MS. LECAROZ: I can do both, but Defendant's 1322 is not in evidence yet. Defendant's 708 is.
MR. MURPHY: I would object to the Transcript of Jury video. I know what it is. It says at the bottom, "Defendant's Exhibit." It's going to be incredibly prejudicial for them to use a video that has a defendant's exhibit number on it. That cannot be shown to the jury.
MS. LECAROZ: Can we cover it up?
THE COURT: Yeah, you can cover it up. Because it's just a demonstrative.
MR. MURPHY: If they can cover it up -- if they can cover it up, yes.
THE COURT: If you can cover it up, you can show it.
MS. LECAROZ: Yeah. Let me consult with my tech. Okay. Allright. We took care of that, Your Honor.
THE COURT: Thank you.
MS. LECAROZ: May we publish? Or would you like to see it?
MR. MURPHY: I'd just like to see it first, Your Honor.
MS. LECAROZ: Okay.
MS. LECAROZ: Okay.
THE COURT: And which demonstrative is this going to be, then?
MS. LECAROZ: This is Plaintiff's 1305, Your Honor.
THE COURT: All right. Thank you. Could you play it, There you go.
MR. MURPHY: Subject to Your Honor's ruling, that's fine.
THE COURT: All right. So 13 -- marked as Plaintiffs 1305 and used as demonstrative. You can publish it to the jury.
BRYAN NEUMEISTER: Yes, ma'am
MS. LECAROZ: Can you publish it.
MS. LECAROZ: So, Mr. Neumeister, what was depicted to May 25, 2022 in that video?
BRYAN NEUMEISTER: The same photo treated two different ways. One was marked with the original — or with the operating system from the iPhone, which is iOS 9.3.1 on that particular photo. The one that says 9.3.1, there is a graphic below indicating it. The second photo is marked Photos 3, and it looks quite a bit different.
MS. LECAROZ: And just, Tom, could we pull up Defendant's 708.
MS. LECAROZ: Mr. Neumeister, does the image in Defendant's 708 appear to be similar, the same photo as what was depicted in your demonstrative? 14. A _ Yes. Actually it's the Photos 3.0 edit version.
MS. LECAROZ: Thank you.
MS. LECAROZ: We can take that one down, Tom.
MS. LECAROZ: Mr. Neumeister, you also formed an opinion about Defendant's Exhibit 712 and 713?
BRYAN NEUMEISTER: Correct.
MS. LECAROZ: Did you prepare a demonstrative that Did you prepare a demonstrative that shows --
MR. MURPHY: Objection, Your Honor. Exhibit 712 and 713 are outside the scope of the disclosure.
MS. LECAROZ: I can show you if you like, Your Honor.
MS. LECAROZ: So this one is also Defendant's 712 and Defendant's 713.
MR. MURPHY: I'I'm sorry. I don't understand Your Honor's ruling. If] could maybe have a continuing objection to --
THE COURT: You want to just do a continuing to the --
MR. MURPHY: Yes.
THE COURT: Are you going to do it for each of these? Or is this the last one?
MS. LECAROZ: This is the last one.
MR. MURPHY: Just to make the record.
THE COURT: Okay.
MR. MURPHY: A continuing objection to any photographs not specifically in his Transcript of Jury disclosure, then I don't have to keep doing this.
THE COURT: Okay.
MS. LECAROZ: I think it's specifically in his disclosure, but thank you, Your Honor.
THE COURT: All right.
MS. LECAROZ: All right. Could we pull up Plaintiff's Exhibit 1306, Tom And, Your Honor, this is another video that -- Oh, could you pause that, please. This is another video that we prepared. It's not published yet, so I'm happy to play it once through so that --
THE COURT: All right. Play it once through. This is 1306.
MR. MURPHY: What was your question? What exhibits are they? I'm sorry, Your Honor. What exhibits are these that are in this video? It doesn't say. I don't know.
THE COURT: Okay.
THE COURT: Okay.
MS. LECAROZ: Yeah. I tried to get my question out a moment ago. Defendant's 712 and 713, Your Honor.
THE COURT: Okay. 712 and 713. All right. Okay. 1306, then, will be a demonstrative as identified and can be published.
MS. LECAROZ: If we could, go ahead and play that, please, Tom.
MS. LECAROZ: And, Mr. Neumeister, what's your -- what do we see here in this demonstrative? 12. A There's Exhibit 712, I believe you have — I'm not sure of the Bates number — 712 and 713. They're two separate exhibits, except it's the exact same photograph that's been — one's been edited; one hasn't. Or J can't say one hasn't, but the colors have been modified in an editor.
MR. MURPHY: Objection, Your Honor. Beyond the scope of your ruling, talking about colors. Keeps happening.
THE COURT: Sustain the objection.
MS. LECAROZ: Thank you, Your Honor.
MS. LECAROZ: Mr. Neumeister, did you form an opinion in this case about the authenticity of the photos that you reviewed of Ms. Heard?
BRYAN NEUMEISTER: Well, first of all, you can't I can't, and nobody can, identify the authenticity of the photos, of any of the photos marked Photos 3, Photos 1, or just marked with the operating system number. And the reason is the manner of collection. So these came from an iTunes backup. Now, what is an iTunes backup? It's not —
MR. MURPHY: Objection, Your Honor. I'm sorry. You're beyond the scope of your ruling, EXIF metadata. This keeps happening.
MS. LECAROZ: Your Honor, may I approach on this one?
MS. LECAROZ: I-understand that your ruling is that he could opine as to the lack of authenticity or the lack of an ability to authenticity or the lack of an ability to determine the authenticity of the photos.
THE COURT: And he's already testified to that. So what's --
MS. LECAROZ: Yeah. So he's just explaining how he knows that. I mean, he has to be able to get the basis for his opinion.
MR. MURPHY: He can only do that based on the metadata. What he's doing now is well beyond. He's talking about forensic imaging process, not the actual metadata, and that is beyond the scope of Your Honor's ruling and it's highly prejudicial. I keep having to do this in front of a jury when Your Honor's ruled already.
MS. LECAROZ: J don't think it is beyond the scope of your ruling, Your Honor. He disclosed the issues with the authenticity of the documents.
THE COURT: I've already made a ruling on it though, so I'm going to sustain the objection. He's already testified that nobody could.
MS. LECAROZ: Okay.
THE COURT: If you want him to explain that without going into the --
MR. MURPHY: He can only rely on metadata, that's it.
MS. LECAROZ: Okay.
THE COURT: That was Your Honor's ruling.
MS. LECAROZ: Allright. That wasn't my understanding, so I apologize. Thank you, Your Honor.
MR. MURPHY: Objection, Your Honor. We just ruled on this. you're concerned about.
MS. LECAROZ: Mr. Neumeister, what's your opinion about the authenticity here?
BRYAN NEUMEISTER: There's no way for any forensic expert to validate any of these photos.
MS. LECAROZ: Thank you very much. No further questions.
MR. MURPHY: Good afternoon, Mr. Neumeister.
BRYAN NEUMEISTER: Good afternoon.
MR. MURPHY: Your only degree is in political science, correct?
BRYAN NEUMEISTER: 43 years ago, correct.
MR. MURPHY: And you have no degree whatsoever from any academic institution in computer science, correct?
BRYAN NEUMEISTER: That's correct.
MR. MURPHY: And you have no certifications in computer forensics, correct?
BRYAN NEUMEISTER: That's correct.
MR. MURPHY: From the opinions you've testified May 25, 2022 today, you relied on no data except for the I embedded EXIF metadata to support those opinions, correct?
BRYAN NEUMEISTER: Incorrect.
MR. MURPHY: What other data did you rely on for the opinions you've testified to today?
BRYAN NEUMEISTER: I was trying to explain, but you've kept it—
MR. MURPHY: What other data did you rely on for the actual opinions you've been able to testify to today besides EXIF metadata? 12. A _ The type of extraction that was performed? You're asking the question — I'masking for the actual opinions you testified to.
BRYAN NEUMEISTER: That is what I would use. I also use vector scopes.
MR. MURPHY: Objection. Your Honor, that was not responsive to my question, Your Honor.
THE COURT: If you want to, approach,
THE COURT: If you're going to ask him how he devised his opinions even ones that aren't in court, you didn't let him explain it because you said "devised."
MR. MURPHY: The opinions he testified to.
THE COURT: Right. And he testified to it and he's going to get into why he came to that conclusion, which I sustained your objection. But now you asked him, and so he gets to answer it.
MR. MURPHY: Understood, Your Honor.
MS. LECAROZ: Thank you, Your Honor.
THE COURT: All right. So, sir, you can answer that question.
BRYAN NEUMEISTER: Pardon?
THE COURT: You can answer the question.
BRYAN NEUMEISTER: Can you restate the question?
MR. MURPHY: I don't recall the question, Your Honor. We can move on.
MS. LECAROZ: Your Honor, maybe we could have the court reporter read it back.
MR. MURPHY: They could redirect.
THE COURT: No. What was the question, Judy?
BRYAN NEUMEISTER: I believe the question was what methodology did I use to make my findings.
THE COURT: Judy's voice has changed. That's --
BRYAN NEUMEISTER: Sorry.
THE COURT: Is that correct, Judy? COURT REPORTER: I don't know. I was looking for it when he started talking.
THE COURT: Okay. The requested text was read by the reporter as follows: I'm asking for the actual opinions you testified to. photo, in this --
MR. MURPHY: Objection to video, Your Honor. That's beyond the scope.
THE COURT: All right. If you could, just answer the question, sir.
BRYAN NEUMEISTER: When you're analyzing a photo, a digital photo, you look at the EXIF data; you use a vector scope; you can use a Pantone chart, if that's available, and that should be done, but that's a whole different deal. If I go into that, you'll object to it. So you'd also use a waveform scope; you would use an RGB parade; you can use a histogram, though in this case, it's not really all that relevant.
MR. MURPHY: You are not offering any opinions that any photograph in this case was intentionally modified by Ms. Heard, correct?
BRYAN NEUMEISTER: I'm just stating the fact that photographs were modified.
MR. MURPHY: But so you are not offering any opinion that any photograph in this case was intentionally modified by Ms. Heard, correct?
BRYAN NEUMEISTER: That's correct. to 1) May 25, 2022
MR. MURPHY: Can you please pull up Exhibit 170A.
THE COURT: Is.that Defendant's 170A?
MR. MURPHY: Defendant's 170, yes, Your Honor.
THE COURT: Thank you.
MR. MURPHY: So you offered testimony regarding this photograph during the direct examination, right,
BRYAN NEUMEISTER: There's --
MR. MURPHY: That's a yes or no, sir.
BRYAN NEUMEISTER: On a photograph like that. I don't exactly remember the photograph. There's so many different versions of the photograph, but, yes, I talked about that particular photograph.
MR. MURPHY: But on -- do you recall being deposed in this matter? IAAR ONS
BRYAN NEUMEISTER: Yes.
MR. MURPHY: And you were under oath?
BRYAN NEUMEISTER: Yes.
MR. MURPHY: That was on April 6, 2022?
BRYAN NEUMEISTER: I believe.
BRYAN NEUMEISTER: I believe.
MR. MURPHY: May I] approach, Your Honor?
THE COURT: Yes, sir. Thank you.
MR. MURPHY: So, Mr. Neumeister, if you could, please turn to page 76. And when I say pages, those are the little pages in the four boxes, not the page at the top.
BRYAN NEUMEISTER: Okay.
MR. MURPHY: And do you see page 76, line 3, you 10:were asked on April 6, “Anywhere in your 1} April 1st, 2022 expert disclosure, do you offer 12.any opinions regarding the authenticity or lack of authenticity of the specific photograph produced as ALH7101?" Response, "Can I refer to my report to see if that specific number is in the report? "Yes." Response, "Not that specific photo. I just grabbed three out of the batch." Do you see that?
BRYAN NEUMEISTER: Yes.
MR. MURPHY: Can you please pull up Exhibit 517 or Defendant's 517
THE COURT: Thank you.
MR. MURPHY: You are not offering any opinions regarding this specific photograph, right, Mr. Neumeister?
BRYAN NEUMEISTER: That's correct. My testimony has been limited here.
MR. MURPHY: And you are not offering any opinion that any photograph was visually doctored by Amber, correct?
BRYAN NEUMEISTER: Not by—I can't put the person who might have done it.
MR. MURPHY: Well, you're not offering an opinion that a photo was visually doctored by anybody, are you?
BRYAN NEUMEISTER: I'd have to see each photo. There's no way to authenticate any of these photos based on what I received.
MR. MURPHY: So you testified about Photos 3. Do you recall that testimony?
BRYAN NEUMEISTER: Correct.
MR. MURPHY: Photos 3 is a photo editing and photo sorting application, correct?
BRYAN NEUMEISTER: It's a photo editor and photo sorter, as are a number of editors.
MR. MURPHY: So when you reference Photos 3.0, you never deny any time independent re --
MR. MURPHY: Strike that, Your Honor.
MR. MURPHY: So when the software of a photograph in the EXIF metadata says "Photos 3.0," that could be just saying that photo was saved in Photos 3.0, correct?
BRYAN NEUMEISTER: Unless you looked at a scope of the photos. That would tell you that the parameters of the photo do not meet that of the cell phone that it was taken on.
MR. MURPHY: But the notation Photos 3.0 in the software EXIF metadata, that does not in and of itself mean the photo was edited in Photos 3.0, correct?
BRYAN NEUMEISTER: It means that you've recompressed the photo, and it will not hash, or digitally fingerprint, with the original photo.
MR. MURPHY: But it does not mean in and of itself that it was visually edited in any way in Photos 3.0 correct
BRYAN NEUMEISTER: Again, it's not the same photo because you're using lossy compression once you save it, so you would change the photo.
MR. MURPHY: So if you could, please turn to page 233 of that transcript, and line 20. Do you see a question, "When it says EXIF software, okay, Photos 3.0" -- on to 234 -- “That's just saying it was saved in Photos 3.0, right?" ON NM AWN Response: "Saved in 3.0, that's correct. "QUESTION: That notion in and of itself does not mean that photo was edited in 3.0, right? "ANSWER: That's correct." ‘Did I read that correctly?
BRYAN NEUMEISTER: Yes.
BRYAN NEUMEISTER: A file has not changed visually just because it's been processed through Photos 3.0, correct?
BRYAN NEUMEISTER: That's incorrect.
MR. MURPHY: Can you look at page 128 of your deposition, please. At the bottom, line 20, do you see, "QUESTION: But the file changed visually just because it has been processed through Photos 3.0? “ANSWER: You know, obviously, I understand what you're asking. From a technical point, yes, because of the compression. You get down to scopes and artifacts, yes, it has changed. on NAR WK et Was it intentionally changed? We don't know. In other words, did somebody save it in there and just save the photo? We don't know.” Did I read that correctly?
BRYAN NEUMEISTER: That's correct. But, again, it says here that —
MR. MURPHY: That was my question, Mr. Neumeister.
BRYAN NEUMEISTER: Okay.
MR. MURPHY: So if the EXIF metadata software field lists the software as iOS, you have no reason to dispute that, correct?
BRYAN NEUMEISTER: Incorrect.
MR. MURPHY: Well, isn't data data? That's what you testified to, right?
BRYAN NEUMEISTER: It's very simple to modify EXIF data. It's—
MR. MURPHY: Did you find any evidence in this case of actual modification of EXIF metadata?
BRYAN NEUMEISTER: You can't — you can't authenticate any of these photos because of the way they were —
MR. MURPHY: That wasn't my question, Mr. Neumeister. Did you find any evidence of any modification of EXIF metadata of any photograph in this case? 13. A _ You didn't listen to my answer. My answer is there's no way to know because of the way the files were presented.
MR. MURPHY: So you found -- but you found no actual evidence of it, correct?
BRYAN NEUMEISTER: Nobody could—
MR. MURPHY: I'm not asking whether anyone else could, Mr. Neumeister. I'm asking did you yourself find -- you found no evidence of any modification of EXIF metadata of any photograph in this case, correct?
BRYAN NEUMEISTER: Now, J understand trying to control the narrative, but there's no way to answer that scientifically because given the evidence we were given, there's no way to positively or negatively answer that. It's not a question that can be answered.
MR. MURPHY: It is a question, Mr. Neumeister. The question is did you, yourself, you found no affirmative evidence of any modification of software EXIF metadata of any photograph in this case, correct? You found no actual evidence of that, did you? 14. A No one could tell either way because — I'I'm not asking about anyone else, Mr. Neumeister. I'm asking about you. Did you -- you found no evidence of that, did you?
MS. LECAROZ: Objection, Your Honor. Asked and answered.
MR. MURPHY: He's not answered what he found, Your Honor.
THE COURT: Overruled.
BRYAN NEUMEISTER: There's not a way to answer that the way you're asking a question. You have to restate it in a-— you're trying to control the narrative.
MR. MURPHY: Your Honor, he's not responding to the question.
THE COURT: I mean, could you just answer yes or no, sir, to the question?
BRYAN NEUMEISTER: It's not a yes-or-no question.
MR. MURPHY: Did you, yes or no, you found no evidence of EXIF metadata modification of any photograph in this case, correct? 14. A That's incorrect.
MR. MURPHY: = Okay. It is your opinion that the metadata of all photographs of purported injuries that Ms.-Heard has identified as her trial exhibits do not indicate that the photographs went through a photo editing application, correct?
BRYAN NEUMEISTER: Well, first of all, that's not answering a question because a lot of the exhibits that you have put up, they're not photographs; they're screen grabs. And they've been changed from an Apple format, which is JPEG, J-P-E-G, to a JPG Microsoft format, so you have actually changed the exemplars. You've changed the data yourselves. We actually ran EXIF data on some of your own examples that you've entered into evidence. They are not photos from an iPhone. Those were edited in -- on PC.
MR. MURPHY: I'm going to hand up a page from your disclosure.
MR. MURPHY: One second, Your Honor. May I approach, Your Honor?
THE COURT: Yes, sir. Thank you.
BRYAN NEUMEISTER: Thank you.
MR. MURPHY: So do you see on page 8 of your disclosure, Mr. Neumeister, it states, "The metadata of all of the photographs of purported injuries that Ms. Heard has identified as her trial exhibits do not indicate that the photographs went through a photo editing application." Did I read that correct?
BRYAN NEUMEISTER: That's correct. We're talking —
MR. MURPHY: No further questions, Your Honor.
THE COURT: Allright. Redirect.
MS. LECAROZ: Mr. Neumeister --
BRYAN NEUMEISTER: Yes. -- a moment ago, Mr. Murphy was asking you some questions about your opinion about the trial exhibits that Ms. Heard has offered in this matter, and he asked you about your opinion that they don't indicate that they've gone through a photo editing application, What can you tell us about that? Well, first of all, this last exhibit, it says, "metadata," not EXIF data. So that's two different things altogether. We're talking EXIF data, and on the report, I put metadata because I was requested to cover meta and EXIF data, So it's taken out of context.
BRYAN NEUMEISTER: The EXIF data is the — it's taken out of context. The EXIF data is the data based - that's embedded in the photo. Metadata can be the file data, about the file itself, two different things. So the way the data was collected, it was an iTunes backup is a backup -
MR. MURPHY: Objection, Your Honor. Backup's outside the scope of Your Honor's ruling. Beyond EXIF metadata.
MS. LECAROZ: I think you opened the door on the --
THE COURT: I'll overrule the objection.
MS. LECAROZ: Thank you, Your Honor. Go ahead.
BRYAN NEUMEISTER: An iTunes backup is only a backup of things that are on an iPhone that have not been deleted. It does not have the critical operating system. It doesn't have any of the files that would validate the path of a photograph in that phone. It does not have a lot of the log files. It does not have the knowledgeC database, which talks about usage of the phone and the patterns of how data was handled. All it is is the photos you decided to save, not the photos you deleted. So it's a very limited database. Without the system registry or without the system operating system, there's no way to tell because it's very easy to modify a photo on a phone and have it just read "iOS 9.3.1." But with the actual phone, if you are able to get ahold of the actual phone, and in 95 percent of all cases we work, we have the actual phones.
BRYAN NEUMEISTER: It doesn't matter the phones are 10 years old or 20 years old -- I don't know about 20 years old, but 10 years old. The reason is if people have something they want to keep as evidence, they don't throw out their phones. They don't recycle their phones. They save their phones. So people ask how are we doing phones on 13-year-old cases? Because people do not throw out evidence. They keep the phone. So in a situation like this, there are no forensic extractions. In fact, the extractions we were provided were backups of backups of iTunes, just exports. So it's third-generation, and there's no way to verify the file paths and the history of any single photo that we've looked at.
MS. LECAROZ: No further questions, Your Honor.
THE COURT: All right. Thank you, sir. You can have a seat in the courtroom, or you're free to go.
MS. LECAROZ: Thank you very much.