SA eDiscovery in 2016

My apologies for being conspicuous by my absence since my last blog post at the end of 2015. In truth, I took a few weeks off to recharge my batteries; had 2 visiting lawyers from the UK to stay; and then have had to deal with one of the scourges of SA - a most unpleasant house burglary. During that time I kept up to date with happenings in our market around the world and carefully observed how SA is coping not only with serious drought but also dreadful economics which may see it downgraded on the global financial front.

I think we should look at the last point i.e. the state of the economy in SA, in a little more detail. Throughout my business life, I have lived and worked through 4 recessions in the UK and now one in SA. Many people say that litigation is “recession proof” and of course there is some truth in that as financial hardships can cause contractual or other problems. However, what I see, and have  seen, is more work of a different type than straightforward A versus B litigation. I have often referred to the fact that eDiscovery technology is not used simply for civil litigation, but also for; criminal litigation; regulatory and internal investigations; competition matters; arbitrations; employment matters and more. For sure, all of these types most definitely occur throughout recessions or difficult economic times and you can even say they are more prolific. Without doubt I am seeing this in SA right now and I am aware of a number of high profile investigations etc. all of which either are, or would benefit from, using eDiscovery technology.

The eDiscovery market is changing globally, and in the USA and UK in particular we are experiencing more than usual, consolidations and acquisitions within service providers. Some of this is because more US providers are actively moving into the UK market to provide them with a base within EU no doubt by way of reaction to combat the problems of Data Protection in the light of the demise of the Safe Harbour provisions. During the past few months I have witnessed many people I know well, moving from one provider to another or being part of a consolidation/acquisition. All of this spells out an ever growing market………………but not here, yet!

My last blog was posted within the festive season. For those who did not have the opportunity to read it, I urge you to do so. In that post I gave my hopes for the manner in which various sectors within SA can use eDiscovery technology effectively in the months ahead. I will go a little further and say that someone, be it a law firm or a service provider or a corporation or institution,  is likely to face an action caused by the failure to find a relevant document or documents in a matter. It has happened elsewhere in the world and will happen here. Trust me, I know that documents are being missed. I know that not all documents are being reviewed either by “eyes on” or by the use of technology to element or find. Trust me also in that I have seen it happen in the UK and USA and there are decided cases proving the point. 

Meanwhile, I will continue to do all that I can but we all know the old adage that you can lead a horse to water but you cannot make it drink. I am working with a number of law firms who have, or do see the light, and I hope that my engagement with these firms will grow in 2016 and that others will follow.

As you have heard me say many times, much stems from the Rules of Discovery here and it is very interesting that one of my connections wrote to me only last week saying that he was surprised to have seen eDiscovery procedures in Singapore whilst there are none here. Sadly I am not surprised and I have mentioned many jurisdictions across the world whereby rules and procedures pertaining to eDiscovery are in place unlike SA. As I write, I am at last in the embryonic stage of communication with the OCJ but I detect a long hard road.

Another plan for me this year, is to make greater attempts to engage with corporations and institutions as it is they, more than anyone, who need to be embracing eDiscovery technology either in-house or via their external lawyers. I repeat my message in my last post - support me, engage with me, seek my views and advice, give me your opinions and together we can move forward.