With so much happening globally in eDiscovery, is SA taking note?

The last few weeks have seen so much news, cases and articles on changes and developments in eDiscovery across the world and I wonder, and ask the question, is SA taking note? The fear is of course that SA is slipping even farther behind. Now, we all know that an amendment to the Rules of Discovery in SA would compel change, but again we all know that will not happen overnight. As an aside, and on that topic, I have at last engaged in dialogue with the Head of Office at the OCJ on the question of amendments to the Rules and I will keep you informed on that. Until then, what is preventing law firms, corporations and institutions, and service providers in SA from embracing eDiscovery technology? Is it fear of change? Is it a misconception about cost? Is it that new word “ostriching” which is self explanatory? It is all of these and probably more and it probably boils down to education where, for a year now I have been doing my level best and will continue to do so. In my posts I have suggested that SA is 10 years behind the rest on eDiscovery, and I met the CEO of an organisation in SA last week who felt we were 20 years behind. Whatever the true situation is, recent happenings across the world in this field make me feel that the gap is widening.

I have spent hours recently reading news from within our market and I wonder if others in SA have read the same things as I have? Let us take a snapshot view of some of the interesting and relevant stuff and if you have not read about these things, then I will try to give links where possible or you can contact me for further information

Firstly, I mentioned in my previous post that we have seen a number of acquisitions and consolidations within service providers in the US and UK in particular. I suggested that this is an indication of a healthy market which it undoubtedly is. There have been some high level changes, many involving companies I know very well such as Consilio, Advanced Discovery, Lighthouse, as well as London law firm Mishcon de Reya launching its own eDiscovery service provider company and  kCura, the owners of the market leading eDiscovery software Relativity, acquiring the best known analytics software development company in our industry, Content Analyst. There have been many more but, I repeat, these represent big big news in this market, and if you want to know why, then ask me.

Secondly, I doubt that I have read so many highly relevant articles/papers as in the last few weeks and I want to take a brief at look at some of them and refer them to you. No less than 42 predictions for 2016 about law firms and lawyers are contained in this excellent post ranging from the legal industry itself through technology and marketing. Amongst the most interesting comments are; “...complex litigation is growing rapidly...”; “...at least one large law firm will announce an AI offering...”; “ ...2016 might finally be the year that lawyers who take tech competence seriously overtake the Luddites who are holding back the profession...”; “…Firms not keeping current with the advances in technology may lose clients…”; and “...If software is eating the legal world, perhaps it will begin eating lawyers as well...”. 

Still on the general theme of technology and law I saw this article, which asks if law firms are poised to make a massive technology-driven transition over the next decade. It suggests that it is so difficult to get innovation flowing within the legal industry which is crying out for change. Then, another describes in easy to understand terms what is actually meant by this “Internet of Things”. 

Moving to specifics here is a thought provoking, and perhaps controversial article whereby the Lord Chief Justice in the UK  states that the growth of arbitration as a means of dispute resolution has adversely affected the development of common law, by which he means decided cases. Litigation is preferable to arbitration in commercial cases is his message. He argues that Courts must be able to “…continue the development of the law that underpins our trade, financial system and our prosperity…”. He concludes by pointing out what Court proceedings can do and arbitration cannot. 

Another article that caught my eye, giving three tips to GC’s, one of which refers to technology, specifically eDiscovery software and I commend this to current and aspiring GC’s.

OK, now I want to move specifically to eDiscovery software, commencing with an article I liked concerning eDiscovery in smaller cases. The basic point here emanates from an argument I make regularly that electronic evidence is better and more reliable than its paper form equivalent. The article then explores the fact that some cases cannot use eDiscovery software as it is cost prohibitive when set against a comparatively small value case. Again it is quite thought provoking and points a finger at the industry for ignoring this aspect and concentrating only on larger cases. I agree with this and I would also point a finger at service providers as they have within their means and capabilities, technology that will materially assist in smaller cases - they just need to be creative! I know of one provider in SA that has an extremely useful and inexpensive piece of litigation eDiscovery software that works very well (I deployed it many times at my service provider company in the UK). Of course it has limitations but there are always options, what is the phrase? “Where there’s a will there’s a way”. Contact me for more details.

A recent decision in the UK in the case of Pyrrho Investments Limited and another v MWB Property Limited and others [2016] EWHC 256 ( Ch) has prompted much excitement, discussion and writing within our industry and every lawyer and service provider involved in litigation anywhere in the world should be aware of this judgment. The decision revolves around the use of technology assisted review (TAR) or predictive coding, in a suitable case, as this was. Very briefly, this multi million GBP case contained a residual 3m plus relevant electronic documents even after de-duplication and keyword searching. The Court approved the use of TAR in this case to deal with the remainder of the documents after hearing evidence of the substantial costs savings by following this method and always having proportionality in mind. Now, for the benefit of my SA readers I have mentioned TAR in the past and I will write a separate post with a basic description and understanding of this process which is now being used widely. However, for the purposes of this post I wanted to highlight the fact that there are now decided cases in the US, Ireland and the UK dealing with the use of TAR in appropriate cases. A useful article written by a UK law firm summarises the use of technology in disclosure (discovery) and specifically refers to this case. My friend Andrew King in New Zealand also wrote a short piece recently on the increased acceptance of TAR.

The last piece of reading I am recommending here is a publication entitled “eDiscovery around the globe - 2015 in review” and this is authored by a team from the international law firm Norton Rose Fulbright. The main author is David Kessler, an internationally renowned litigation lawyer and Chair of the eDiscovery and Information Governance Practice Group of NRF. I know David and have spoken on a panel with him at an eDiscovery seminar in the UK. Not only is he a well known lawyer in the US and beyond, but he is very very well versed on the use of technology in litigation and investigative matters - always a man worth listening to or reading his words. This white paper is very full and extensively covers TAR as well as the use of forensics in civil litigation and finally a piece on the Federal Rules of Civil Procedure. It is the first part relating to TAR that is highly relevant here and David and his colleagues from other offices of NRF spell out practices and the law surrounding the use of TAR in their respective jurisdictions. Some good stuff here for sure. My only gripe about this excellent paper is that the title is “eDiscovery around the globe” and there is much in it from and about the US, UK and Europe, Canada and Australia. There is nothing at all from, nor any mention of, SA or the wider Africa where NRF have a number of offices. Maybe that is because there is nothing much happening here………..which of course is my very point.

I know that I have referred to a great deal of reading here but it shows in a small way, just how much there is going on in the world of eDiscovery, and I see no comments on these articles from anyone in SA apart from myself. Therefore, as I asked at the beginning, “Is SA taking note”? All of the articles I have mentioned here and loads more besides should be being read by those Attorneys, Advocates, members of the judiciary as well as GC’s and/or the legal teams of corporations and Government institutions to say nothing of service providers. For my part, I am delighted to be in regular contact with some law firms in CT and JHB by assisting them on certain matters including talks/seminars/workshops as well as actual cases. I do, however, wonder about all the rest? The same applies to service providers here in SA - certainly I have made contact with a number but it is not really my place to find or chase them. They know if they are talking about eDiscovery including such matters as TAR but I have to say that I see or hear little evidence of it. All I can continue to say is you know where I am………..