Hi Vicki. I have an e-discovery question for you.
We received a production electronically from a neutral 3rd party producing documents pursuant to SDT.
It appears they just copied the folders from their computers. However, some of the files don’t have file extensions.
For example, a letter from Company A to Company B might be saved as “CompanyB.ltr” so Windows Explorer says it is a “LTR File”. However, when I add the “.doc” extension, it opens in Word and the letter itself is readable. (I also tried with “.pdf” but it said the file was corrupt, so I know it has to be a Word document.)
Question No. 1: Can I change the file extensions in the production so if the attorneys open it, they can view it? It seems like whoever saved these documents had little to no idea what they were doing when they were naming files because they used periods for everything and didn’t put file extensions.
I know my attorneys aren’t going to understand this type of explanation; they just want to be able to open the document. I’m not changing anything, and it doesn’t affect the “modified” date on the folder.
At this point, we are not loading these documents into any sort of database, so metadata is not an issue.
Question No. 2: If there is a file that has some substance to it and then 100 pages of gibberish (code/random letters/stuff that doesn’t make sense and if I deleted it, the attorneys wouldn’t miss it), can I delete the gibberish and keep the relevant portion? Would that be “tampering” with the production?
I know my attorneys aren’t going to want to Bates number 100 pages of gibberish, and I know the company who produced it wouldn’t care if we made it make sense, but is that against the rules of e-discovery?
Do you just go back to the company, tell them to fix it, and ask them to reproduce it? Do you fix it? Do you have your IT guys fix it? Do you not fix it and just leave the big headache for everyone to struggle through?
Any thoughts are appreciated.
Note from Vicki: Since I am not qualified to answer the question from Puzzled Paralegal, I turned to Tom Mighell, Senior Consultant with Contoural, Inc., where he helps companies address their records management, electronic discovery, and litigation readiness issues. Here’s his explanation:
Dear Puzzled Paralegal:
There are a couple of questions I would want to ask, but I think I can give a mostly complete answer based on the information provided:
With regard to the files with bad extensions, don’t assume you aren’t altering the metadata just because you aren’t loading them into a database. The metadata can be altered by doing any number of things.
Instead, make a copy of the produced files, and keep the original files in a safe location – in the event you need to do something with them, they haven’t been altered.
Then you can work with the copy any way you want – if the goal is just to be able to read them, then yes, you can go ahead and change the extension until you find one that makes it readable.
Before you produce them to the other side, however, make a full disclosure, and say “these documents came with the wrong extensions – to make them readable, we changed the extensions – we are sending you both the altered versions, and the originals.”
(I’m not sure why the third party would change the extensions – typically I see extensions being changed if someone wants to hide a document so that it won’t be found by traditional search techniques. Is that a possibility here? Something to consider)
The documents with “gibberish” – do you know what the gibberish is? When documents are imperfectly converted, sometimes relevant text can appear as gibberish – do you know for a fact that the gibberish is nonsense information, and would contain no real words if it were converted?
If you can’t say Yes to that with 100% certainty, you need to go back to the third party and try to figure out what the gibberish is: Is it from a document conversion that messed up? Is there some other reason for the gibberish?
If it turns out that the gibberish actually contains relevant content and you delete it, then you definitely have a problem.
My advice would be
1) Try to find out what caused the gibberish, and whether it could possibly contain relevant information;
2) if it does contain relevant information, try to find a way to start with the original documents and recover the original text to determine if the content is relevant;
3) If the gibberish does not contain any real text, then make a copy of the document, remove the gibberish, and produce as usual – but also produce the native copies of the original files, to say “the original documents, which we are producing to you, contain some irrelevant gibberish – we have removed it and produce these other documents to you, with only the relevant text.”
Going back to the company and asking them to fix it is always an option. Because they are a neutral third party they might not be happy about it. In some cases, the court can order them to do it, if it means recovering relevant information.
I would not just forward the information on to the other party – the rules state that information must be provided in a “usable” format, which means the other party must be able to read it and understand it.
By providing copies of both altered and unaltered documents you are showing good faith, that the originals have not been tampered with, but that there were some issues with them that required fixing.
Hope this helps!