eDiscovery in SA - reflections on 2016 and hopes for 2017

Since June 2015 this will be the 39th blog post that I have written and I hope there has been content to interest and inform you. Much of it has been my attempt to educate and inform SA of the rudiments of eDiscovery as well as commenting upon happenings, globally, within the industry.

I want to thank the many organisations who have asked me to present eDiscovery to them in 2016. I have enjoyed each and every one and felt encouraged by comments and questions all of which told me that my words have been thought provoking. After one such presentation, one lawyer congratulated me and asked how long it had taken me to prepare the presentation to which my reply was “about 40 years!”. I said that because I am in the unique position of being able to draw on my practical time as a litigation fee earner as well as my time as an expert on eDiscovery. 

It would not be right for me to single out any one company by name, but there was one presentation in particular which left me so enthused about the future of eDiscovery here. There were a large number of litigation lawyers present, many of them young and already possessing a leaning towards technology generally, along with some older, more experienced, lawyers who were, clearly, thinking about how to combine what I was saying with their requirements to comply with the law and their duty to their clients. I was asked many pointed and relevant questions and there was significant participation. Best of all, I have been invited back to present again in 2017 but this time to some of their clients as well.

  Firstly, at one presentation I was asked about my comment that the same technology is used in eDiscovery as in regulatory and and internal investigations, arbitrations, employment and criminal matters such as fraud, as well as competition cases. The specific question related to competition cases and I was asked how eDiscovery technology was used in such matters. I covered this at length in a previous post - but in essence the same problems apply. A lot of mixed data and little time to review and therefore impossible without technology. Another good question related to the fact that it was all very well me saying SA lawyers and their clients must use technology but “…..the Courts in SA are not geared up for technology in their buildings or in the system and therefore it cannot happen here..”. A good question but as I pointed out using eDiscovery technology is for each side to use and not the Court. There are very few Court buildings in the UK that have internet connections and a good IT infrastructure and I am sure the same goes for elsewhere. The point about using the technology is simply to do what every lawyer should - make  reasonable search for relevant documents and review them - and what is presented to Courts is usually in the form of paper based trial bundles, the like of which the eDiscovery software produces easily. Another good question arose out of my concerns about BYOD (not bring your own drinks as one lawyer suggested but bring your own device!) whereby employees use their personal portable devices for work communications. I was saying that lawyers need to ask for these when investigating a matter and have them searched (forensically) for relevant communications. The questioner said that work emails would be on the company server anyway so there is no need to look at the devices. That is not always the case as emails on a device have to “synch” with the company’s servers and there is often a delay or malfunction - also drafts on a device will not find their way to the server until they are sent. More importantly, other communications such as SMS and Social Media messaging, and recordings are communications which are discoverable (yes, even emoji’s!) and cannot be found other than on the device itself. As I say these were just a few of the really great questions I have been asked this year - keep it up!

I often speak about eDiscovery technology in the same breath as Data Protection and Privacy as the one is more than useful at finding personal data for the other! I was privileged to be asked to co-chair a PoPi event in CT last month which was very successful and enjoyable.

Of course, I cannot reflect on 2016 without mentioning the Rules of Discovery! You all know, I hope, how hard I have worked on this for more than 2 years now and after all the work there are signs of reward in that I have been invited by the High Court Committee of the Rules Board to present eDiscovery to them in early 2017. I cannot pre-judge what the Board will decide but I can promise that I will do all that I possibly can in my presentation to convince them to adopt our proposed amendments and I must say that I feel absolutely honoured to be invited. I want to repeat my thanks to LSSA for officially supporting my initiative and I also want to thank all those people in SA and beyond who have supported my work on this and offered good wishes for the outcome. I recently met someone who is not involved in eDiscovery, per se, but who had heard me speak and read what I was doing. This person wrote to me and posted on Twitter that my drive for SA to adopt eDiscovery was worthy and that they were “…right behind you…”. A humbling comment for me to receive.  There is so much I could write about what SA does if and when the Rues are changed but I will not pre-empt - let us just wait and see.

2016 has seen a number of political events which affect us, first Brexit and then of course Donald Trump becoming President of the USA. I blogged about Brexit and made numerous comments on Social Media. I have said little, so far on Mr Trump because, like it or not he is now the President (or will be after his inauguration on 20 January - which happens to be my birthday!) of the most powerful nation in the world. My only comment, linking to eDiscovery, was after he had publicly stated that it was not possible to vet (review) 650,000 emails in 8 days referring to the FBI probe of Hilary Clinton emails. I said then, and repeat now that he was totally wrong and should have learned facts before speaking. Those of us involved in this industry have been using technology to do just that for many years as many eDiscovery experts across the world were quick to confirm.

Finally, on 2016, I have continued to receive a number of enquiries and requests for information or advice from lawyers and service providers outside SA about data collections and other eDiscovery services here, in global cases. Once again, I can only repeat to SA lawyers and service providers that you are missing out and I can help you with preparing bids for this kind of work as well as being ready and able to deliver.

This will be my last post of 2016, unless there is a major happening in the world of eDiscovery or someone asks me to comment on a particular topic, and therefore I want to take the opportunity of offering a very sincere thanks to all those who have supported and engaged with me throughout the year. 

As to 2017, we must wait to see what happens about the Discovery Rules because this would be a game changer. I hope you all have a wonderful holiday break and I wish everyone an exciting and prosperous new year.