eDiscovery in SA - “I must look at every document to fulfil my obligations”

This statement is one I heard from numerous lawyers in the UK years ago and I was quite surprised recently to read in an excellent article by Chris Dale - that an “anonymous” lawyer had said, “As lawyers we like to see the documents, read them and then decide their relevance”. Chris’s typically forthright rhetorical question was, “What, all of them”? All of this is in the wake of two recent decided cases in the UK approving the use of predictive coding technology.

Since I have been in SA I have heard the self same comment many times and to an extent, I can understand it here because the use of eDiscovery technology is far from common and we have no inclusion of eDiscovery in our rules as yet. As to the last point, please refer to my previous blog post for an update on the significant progress and subsequent Tweets.

Despite the fact that I have mentioned this in previous posts and spoken of proportionality, and given the recent large volume of legal writings and opinions on the subject, I thought it was worth a repeat for the benefit of my SA contacts. 

When I was a litigation fee earner in the UK, we certainly looked at all documents and it was easy to justify this to clients who were paying the bill as we had obligations a) to the Court and b) to the client, as far as discovery was concerned and there was no other way. Times have changed, although many lawyers refuse to accept that the changes alter their obligations, and of course they are correct in the sense that whilst their obligations do remain, the methods of achievement and compliance, have altered beyond recognition. Now, in many cases it is simply not possible nor practical to look at every single document with “human” eyes. That is assuming that proper attention has been paid to collecting the electronic documents in the first place. I pointed out in this blog post that one custodian (potential witness or relevant individual) could easily have up to 100,000 electronic documents to be searched and very few cases have only one custodian. Assuming there were 5 custodians, are lawyers really going to look at half a million documents (see Chris Dale’s comment above!)? There are many reasons why not, including the fact that the end client would not be happy to pay for this pointless exercise. However, in jurisdictions which have eDiscovery rules there is another compelling reason why not and that is proportionality. It is about whether the proposed costs of looking at all of these documents is proportionate to the value of the case and if it is not then the Judge is likely to order that the disproportionate costs will not be recovered even if that party is successful. Sometimes, eDiscovery experts attend the CMC to help the Judge understand what the technology will achieve and outline the costs savings because proportionality is the overriding factor.

So how do we deal with large volumes of documents, comply with proportionality AND keep clients happy all at the same time? It is quite simple - we use eDiscovery technology! I am not going to go into all the methods available which I have referred to in a number of previous blog posts, but we use the features of the eDiscovery solution to filter and cull the documents to the point that only those documents which are relevant or likely to be, or are privileged, are the ones that need to have “eyes on”. That is not to say that all of the other documents have not been “seen” - they have, by “machine” eyes rather than “human” eyes! These documents are not discarded and can be revisited at any time within the solution should new issues arise within the matter.

Once again I would refer you to a decided case in the UK, Earles v Barclays Bank Plc in which the Judge, Brown J, said that a lawyer does not have to “..leave every stone unturned..”. Incidentally, he also warned that failure to comply with the rules relating to electronic disclosure (discovery to you!) constitutes gross incompetence. By the way, this case was heard in 2009!

Then of course we are left with the age old comment by some lawyers that they are paid by the hour and if the use of technology means they spend less hours looking at documents in a case then technology will mean they are earning less fees! I often have to bite my tongue to answer this one and I was so pleased when at a recent meeting with a law firm one lawyer said, “Yes but look at how many more cases you could handle”. Law firms should also bear in mind “techie savvy” corporate clients who want to know that their lawyers are using up to date technology to handle their cases and smart lawyers use this as a pitch for new business. Imagine a client asking law firms A & B how they would handle their litigation, and litigation head of A says, “I will give you personal attention and look at every single document so nothing can possibly be missed”. Head of litigation at law firm B says, “Our strategy is to use eDiscovery technology which will eliminate duplicate documents, then filter and cull the rest of the collection. Thereafter, I will have junior members or an LPO company carry out a first tier review reducing the number further that I need to see. You will only be paying my rate for looking at identified important documents”. The costs of A would be considerably more than the costs of B and far less reliable, so which firm is the client going to choose? 

My message here quite simply is that lawyers do not have to physically look at every single document in order to fulfil their obligations to their client and the Court. If you doubt this comment look at the ever increasing number of decided cases in other jurisdictions. 

By the way, this is 30th blog post that I have written in the last 12 months in my effort to inform and educate South African lawyers, organisations and corporations about eDiscovery. You can find them all here on my website, and as ever do not hesitate to contact me for advice, assistance or information.