eDiscovery in SA - SA needs to change its discovery rules - PHASE 4!

The last few weeks have seen me very busy with eDiscovery presentations in Cape Town and Johannesburg as well dispensing advice on specific projects. However, my mind has never strayed from the fact that the Deputy Chief State Law Adviser of SA told me that the High Court Committee (HCC) of the Rules Board, (obviously part of the Department of Justice and Constitutional Development), were to consider my initiative and the formal submission of the Law Society of South Africa (LSSA), to amend the rules of discovery to include eDiscovery, on 2 November 2016.

Since that date, I have barely slept, waiting with anticipation for the outcome but I managed to keep my fingers away from Mac or phone until 7 November, being the agreed “catch up” date. To get straight to it, the Rules Board told me they found favour in the proposal and that the HCC were “keen to invite you to do a presentation to them on e-discovery.” Further, that the meeting and presentation would take place late February/early March 2017. More emails have been exchanged and clearly, they need to understand more about eDiscovery and I was happy to learn that a particular, very experienced lawyer whom I met at the Rules Board previously, happens to be the Secretary of the HCC. To be clear, of course I have accepted the invitation and bluntly, I feel honoured to do so.

Now, let us look at what has happened and examine where we are. My take on this decision is that the HCC had 3 options when they met on 2 November:-

  • Dismiss the proposal 
  • Accept the proposal
  • Seek further information

Number 1 would have had me slitting my wrists whilst 2 would have seen me jumping for joy (albeit with slightly raised eyebrows) and 3 leaves me feeling extremely happy and indeed proud. It is entirely the correct decision and precisely what I would have done had I been the HCC. Changing the Rules of Civil Procedure is a big decision on any view and one which cannot be taken lightly. The easiest option is always going to be to retain status quo. I thoroughly and absolutely applaud the HCC for not taking the easy option. Of course they wish to know more and they also want to see the upstart from the UK who has started all of this! 

Once again I thank LSSA for their support and assistance in sponsoring the initiative and for drafting the proposed amendments. Still, I prefer not to enter into a dialogue about those amendments as we have all agreed on confidentiality until the matter is determined, but be under no misapprehension that it will mean that lawyers and their clients will have to change the way they deal with discovery immediately and for ever.

So, I am already preparing in my  mind what I will say to the HCC even though it is some months away, and I repeat that I am proud and honoured to have the opportunity.

Meanwhile I continue to give presentations and advice to lawyers on eDiscovery and best practices. Please contact me if you or your firm would like to learn more. Timing is everything and the eDiscovery clock in SA is ticking.