SA needs to change its Discovery Rules…. PHASE 2!

A few weeks ago I posted a blog headed with the first few words of the above title and now we move to Phase 2!

The post was read by literally hundreds of you and I am sincerely grateful for that. Moreover, and I say this with the very greatest respect to my friends and contacts in other parts of the world who are always so supportive of my efforts here, I am absolutely delighted to note that the vast majority of readers are from South Africa. 

I received many, many messages and emails following this posting and not a single one was negative about what I am trying to do here. There were helpful and encouraging messages from The Law Society, lawyers, Attorneys, Judges, CEO’s, public bodies and organisations, Advocates, legal journalists and more. Some of the comments (and as usual, I will refrain from publishing names) were:-
“..great idea and will simplify matters in Court..”
“..biggest stumbling block was DOJ but the newly established department Office of the Chief Justice has opened the way for modernisation..”
“..well received and thank you..”
“most interesting initiative…”
“ ..find Hon Mr Justice HCJ Flemming retired…”
“..this is major…”
“…noble cause…”
“..so pleasing to see someone with your experience and knowledge dedicating their time and efforts to this initiative..”
“..very particular subject for the country you have touched upon. I can accept the importance and will air it for discussion with colleagues and friends and let you know if we can assist or highlight points of interest or value. I wish you all the very best with this endeavour”.
“ Thanks and I will be contacting you. …will raise with the Black Lawyers Association..”
“..great vision pertaining to eDiscovery..”
“ I believe our justice system requires to become more technological especially the Courts. I will support all that is necessary to improve the rules and systems..”
“..hope your presence will assist in this…”
“..urgent need for Rules Board to amend the existing Rules…”
“Very interesting.”
“ I agree with you”
“ I do feel strongly that the entire discovery process needs to be overhauled”
“I do know the Chief Justice….will see what I can do..”

These are just some of the comments but I am sure you get the drift and certainly these comments give me heart to push on. It is true to say that there were not too many comments from practising litigation lawyers but I expected that. Having been in lawyers' offices and worked with lawyers all of my working life, I know that they read, consider and then, as the saying goes “keep their powder dry”. Obviously they would be hugely affected by a Rule change such as this but so have lawyers in other parts of the world who have had to accept and have eventually embraced and acknowledged the changes to meet the needs of the modern world. Lawyers do know what is happening in other jurisdictions as the legal industry is one which, thankfully, produces a lot of information - look at what we all see on a daily basis via Linkedin as an example. Therefore, it will not have escaped the notice of lawyers in SA that in other places, sanctions against lawyers have been imposed by the Courts for failing to adhere to rule changes in eDiscovery. However that should never be a reason to avoid change and the benefits to practising lawyers of such changes far outweigh the negatives.

I am not going to write here a draft of the Rules that I would like to see adopted (although I am happy to write such a draft) but I would like to touch upon some of the changes that not only would I like to see but I consider are necessary. Take a look at the Rules in the UK for example or New Zealand or Ireland to see just how far away SA is. All speak about electronic documents or ESI (Electronically Stored Information) and the UK includes in its definition of a document, the metadata appropriate to that document which must also be discovered or disclosed in the case of the UK. SA refers to “…electronic, digital or other forms of recordings…” in Magistrates Court proceedings and “…documents and tape recordings..” in the High Court. Really?

Firstly, I do not know if there is, within the current Civil Procedure Rules in SA, a mechanism which imposes a mandatory conference between the parties and the Judge at an early stage (perhaps someone will enlighten me?), but there certainly is in other jurisdictions. For example UK and NZ refer to these as Case Management Conferences (CMC), whilst the USA call them “Meet and Confer”.  It is at these conferences that, inter alia, discussions take place about how each party will make their “reasonable search” of the documents and data in their case and how and when they will discover. The volumes of the data are reported, the proposed technological methods to be used, and the costs are discussed (in the UK each side now HAS to file a budget and there are penalties for failing to file as well as consequences for exceeding the budgets without informing the Court). Woe betide a party at these conferences who states through his lawyers that they have hundreds and thousands of emails and attachments which they intend to print to review - it just will not happen. SA lawyers should be asking themselves right now, after reading this “Do we print emails and attachments for review once we have received these from our clients?” Well, if you do let me ask you a couple of questions. How do you print deleted emails?  A correct and proper forensic collection would “capture” emails which have been deleted (there are some exceptions but not relevant for this conversation). My second question is how do you print Bcc’s names? The answer is you cannot and therefore you would not know if another party has been included in an email if this is your method of dealing with electronic data. eDiscovery technology captures Bcc’s so you can prove that someone knew about the contents of the email in question. I may be straying from the point here but it is important and is a matter which can come up at a CMC. The cost of discovery is raised as proportionality is key, and in the UK is the overriding objective. So, I would like to see CMC’s or similar as part of the process in SA.

Next, I certainly wish to see provision in the Rules to include in the definition of documents, ESI, metadata, methods of utilising technology to make reasonable search as well as provision for discovering in electronic format. 

I would like an approved form of electronic documents questionnaire or checklist similar to the UK and NZ to be written into the Rules

I would like to see lawyers present a protocol to the other side (if anyone is interested, I would be happy to produce one for you) to show exactly how they will be discovering along with a request for reciprocity.

Now before you start thinking that all of this cannot apply to every single case, of course that is right. There needs to be a method of determination which may well be the value of the action. Unless there is a specific reason, you do not need this sort of procedure for small claims. I also feel we must acknowledge that some areas of SA may have difficulties through no fault of the parties or their lawyers (one correspondent told me that ADSL is a problem in Limpopo never mind internet based systems!).

Of course all of this is tough and requires not just amendments to the Rules but explanations and training to Judges as well as lawyers and Advocates. This is a small price to pay and others have achieved it so why not SA?

So where are we now and what is next? I called this Phase 2 which it is and I have now opened up some more of my thinking as some people asked me to give some idea of the changes required. We need more debate now and we need to open a constructive dialogue with the Rules Board. Who will help me with that? A message to law firms, in-house legal teams at organisations or corporations, groups of Advocates, Lawyers Associations, the Judiciary etc. is I am available and willing to visit and speak to you about this - just contact me and ask. 

This aspect of eDiscovery in SA is part of my interest here but also remember, as many of you have, I am also here as the only independent eDiscovery Consultant in SA and I can help and advise you on all matters relating to the use of technology on your litigation cases, regulatory and internal investigations, and competition matters. 

I will return to writing posts in my series of the processes involved in eDiscovery but I make not the slightest apology for interrupting that series with these posts about what is fundamental. We need to change our Rules. SA business is already being lost. I want to do all that I can to arrest that. Do you?