eDiscovery in SA - reflections on 2015 and hopes for 2016

Well 2015 was a year of load shedding, drought, more allegations of corruption at a high level…and the real introduction of eDiscovery to SA. It is 6 months since I launched my website and began writing my blog, with this post being my 24th in the series covering eDsicovery and legal technology innovation in South Africa. At the beginning, my posts were being read largely by my friends and contacts in the UK, USA and other parts of the world with just a few from within SA. Now, I have over 2500 Linkedin SA connections and my posts average 1500 views each month with a gratifying almost 90% views from within SA. Thank you, thank you! Thanks also to my friends and colleagues outside SA who have supported me, and continue to do so quite brilliantly.

So what have I been doing for the past month when my writing has taken a slightly less frequent step? I have been busy, very busy with clients; meetings; presentations and advice and proposals, and already I have  a number of engagements scheduled for 2016. I am actively working with law firms on current cases where eDiscovery technology and advice has not been used before, both with electronic data and hard copy. I ran a session in CT on Disruptive Innovation by way of eDiscovery, and although we had a large number of “call offs” due to business and holiday commitments, it was very successful and, I am told, well received. I have been hired by 3 law firms to undergo awareness and practical eDiscovery training within their offices, with further ongoing training and advice planned. There have been so many meetings and communications that I have lost count but what is abundantly clear is that we have made a start. For example I now know of a number of law firms that will no longer be printing emails! It has also been gratifying to meet and engage with not just law firms, but Advocates, institutions, corporations and service providers. When I embarked on this journey, I was adamant that SA was 10 years behind other jurisdictions on eDiscovery and I would now say that it is around 8 years behind. Therefore that tells us, we have made a start, a good start, but there is still a long way to go, and go, we must, because as I have been preaching, SA is leaking eDiscovery business. We need the skills and experience within law firms and service providers; we need more corporations and financial institutions to understand the absolute necessity of using eDiscovery technology as well as the risks of failing to do so; and we need amendments to our Rules, all of which I have written and spoke about in the past.

As to the question of the Rules, at last I have been able to make some contact with the Rules Board which will continue in January. I know this will be a long haul. I am indebted to 2 lawyers who referred me to the Electronic Communications and Transactions Act 2002 and in particular S15 - S17. I have read those carefully and I see some value …… but not much. They go nowhere near what is needed and as I have been pointing out, the UK Civil Procedure Rules include 7 A4 pages of how to deal with the discovery of electronic data. In SA we seem to spend more time referring to recordings and broadcasting and where we do speak of “electronic communications” we seem to want them to be “certified”. The truth is that electronic data is far, far more reliable from an evidentiary aspect than hard copy. 

My hopes for 2016 here in SA include messages to relevant bodies:-

To lawyers and law firms I hope more of you will consider carefully before embarking on a case that you have done all that you can to be sure you have explored all of the sources of electronic data and not merely relied upon your clients. You need to be researching; servers, PC’s/laptops; back up policies; instruments such as iPads and mobile devices. You must keep the data in its original format - every single action with electronic data, even copying it to your own system will change some of the metadata that is hugely valuable. I hope more of you will consider seeking advice at the outset of a case. I hope that if you do have case which contains a lot of paper documents that you will consider using technology, rather than multiple copying which is both costly and unnecessary. 

To Advocates and the Judiciary I hope that more of you learn the value of eDiscovery and begin to request or even demand its use in cases.

To corporations, institutions, and Government bodies I hope that you also learn more of the value of eDiscovery and, just as important, the risks of ignoring it.

To Service Providers I hope you will improve your internal skills and knowledge of eDiscovery technology and systems so that you can better serve and advise your clients. I also hope that you will do much, much more about talking about it and publicising what is on offer. Most of you that offer eDiscovery services seem to view it almost as an “add on” to your core services - elevate it, become more proficient, expert and “sell” to your clients the added value.

To all of you, please, please support me, engage with me, seek my views and advice, give me your opinions and together we can move forward.

Finally, with deeply grateful thanks to all who have connected, read my posts, messaged, spoken and/or met with me over the last 6 months I hope that you all have a wonderful, restful, enjoyable festive season and a re-energised successful 2016.