Introduction to eDiscovery in South Africa

As the first independent eDiscovery Consultant in South Africa, my aim is to provide truly independent consultancy and advice to law firms, advocates and in house counsel or legal departments of corporations, on all aspects of technology in litigation, arbitrations and competition matters. 

After more than 30 years as a fee earner in UK law firms handling litigation, I decided to change careers and 15 years ago moved into what was then a new field in the UK - litigation support, using technology to assist law firms and corporations involved in litigation cases. For the last 10 years I was MD of a litigation support service provider in London. Way back in 2001 I was working in London and beginning to hear more and more from people in the USA that there was  a revolution on its way within the industry – eDiscovery (referred to as eDisclosure in the UK, but that is another story and I will simply refer to it as eDiscovery to avoid confusion!). I learned more about how this revolution was affecting the industry in the USA, and in 2003 I organised and spoke at the UK’s first seminar on eDiscovery. I remember the event so well to this day. It was attended by over 60 representatives from UK law firms specialising in litigation. The other speakers were a forensic specialist, and a highly regarded commercial litigation lawyer. In a sense it helped to shape the birth of eDiscovery in the UK.

So what actually is eDiscovery?

Well the starting point is the law and rules within each relevant country surrounding discovery whereby in litigation cases each side must make a reasonable search and hand to the other side any documents which may be relevant even if they are adverse to their case. If that is standard discovery, then eDiscovery is the collection, review and production of documents that are stored in electronic format. These are not just emails, but their attachments, along with spreadsheets, reports, meeting minutes, invoices and presentations – indeed any documents that are created on an electronic device. The real significance of this is that recent statistics show that more than 97% of business documents are now created electronically, and that only 35% of them ever see paper (at the moment here in SA that proportion is much higher in favour of paper, as it was in the UK 8 or 9 years ago. My next post will be devoted entirely to paper and how to handle it). Therefore, lawyers need to make a reasonable search of these electronic documents in order to advise their clients about the case and at the same time meet their professional obligations to deal with discovery.

A UK litigation lawyer that I know, described eDiscovery very well as “...about being clever with the way you do document reviews. It’s about picking the right search terms, using a good provider and having a proper hosting platform.” This is an excellent practical description and I will talk about all the points that are made here in future posts.