SA needs to change its Discovery Rules...fast!

I am still embarking on my series of posts covering the eDiscovery process and have more topics to deal with. However, as is often the case, other matters crop up in the news or in conversations which change the priorities as far as I am concerned. That is precisely what has happened here as during the last week I have had numerous communications and conversations about the Rules of Discovery in SA. From the outset I have made it clear that I want to play a part in attempting to have SA’s existing  Rules of Discovery amended to bring them into line with most other countries of the world that adopt similar jurisdictions. Therefore, this is my first post – it certainly will not be the last – on the subject.

The starting point is that the Rules of Discovery in every country that embraces Discovery as part of its judicial process were laid down long before emails were invented. Since 2003, there have been published statistics varying from 90% to 97.3% of all business documents being created electronically, and between 30% and 35% of those documents never seeing paper.  Whatever the precise figure is now, it is huge and cannot be ignored. It follows therefore, when considering commercial litigation, that the vast majority of the evidential documents will have been created and will exist electronically and it must be right for Rules relating to documents in these cases to be amended to cater for the “here and now”. 

In 2012 Cape Town Advocate Joe van Dorsten published this excellent article highlighting the differences between SA and other parts of the world. However, things have moved on a great deal since then. In 2013 the UK introduced via Practice Direction 31b comprehensive new rules and procedures encompassing many aspects of eDiscovery technology. The following year further reforms in Civil Procedure came into effect known as the Jackson Reforms (having been authored by Lord Justice Jackson) and these added significant changes including sanctions against parties and their legal representatives. Ireland, Hong Kong, Australia, Canada, New Zealand and others have all introduced rules and procedures specifically embracing eDiscovery. The USA via their Federal Rules of Civil Procedure incorporated provision for electronic documents some time ago and have since, like the UK, expanded and strengthened the process. There have been decided cases in various countries surrounding aspects of eDiscovery and some of the changes that have been introduced.

I will go into detail in future posts about many of these but take a quick look for the moment at the UK position for now. You will see that PD 31b specifically includes such matters as keyword searches and disclosure of metadata, subjects that I have referred to in previous posts. An Electronic Documents questionnaire is now in existence which the parties via their legal representatives are encouraged to complete and exchange in the early stages of the case.

Additionally, there are protocols which have been written in the UK which are shared at the outset of the case to ensure that both sides follow the same procedures with regard to the exchange of electronic documents. Many of these issues have been commented upon and contributed to by some of my friends and colleagues in the UK, including Chris Dale chrisdale@wordpress.com and Andrew Haslam.

I mentioned New Zealand because another of my good friends Andrew King  worked very hard (and still is!) on striving to introduce changes in his country. I spoke to Andrew recently and he tells me that it took about 2 years to have these changes written into the Rules but he received a great deal of support from the judiciary and he was invited to sit on a committee to help draft the amendments.
 
Let me tell you, I don’t want this to take 2 years in SA and through this initial post I am calling upon lawyers, Advocates, members of the DOJ, Judges, The Law Society of SA, major service providers and others to support me here. I am happy to write more on some of the details that I have referred to but first I would like to see some interaction within SA. Please contact me either directly on ediscovery@terryharrison.co or via the Contact page on my website or Linkedin. Let me know your views. Let me know if you have an appetite for this because I have. I am passionate about eDiscovery as I hope can be seen by what I have been doing since I came to live here. For sure I cannot achieve these changes alone but now is the time to move forward and bring SA in line with all of these other jurisdictions. We often talk about and see posts and articles written about cross border transactions and litigation and it is this that has helped to bring about changes in how laws and procedures operate. So much of what we do in this industry is driven by “globalcorporation.com” and it is my belief that they will not tolerate situations whereby in a global case or investigation, rules and practices of eDiscovery differ in countries in which they are involved. They will find a way of excluding those countries (remember that at the moment Data Protection and Privacy laws in SA and other countries of Africa are not particularly strong or in existence – this will be topic for one my blog posts soon!) and we do not want that to happen here in South Africa.

So, let me repeat because it is worth it. This is a hugely important topic for SA and this is only my introductory post on this subject. I will write more, research more and work as hard as I possibly can on it but I need to hear from practitioners and those involved in the making of the Rules as well as influencers that I will receive support from within.