As eDiscovery in SA moves ever closer are SA lawyers thinking of ESI rather than documents?

Time to go back to writing about eDiscovery in SA instead of Brexit and football (!), and my mind was prompted to write on this subject after I read an excellent article by my good friend, and fellow eDiscovery Consultant,  Andrew King in New Zealand.

In this article Andrew reminds us all that we tend to refer to all forms of information and communication as “documents” when in fact, in this digital world most of what we are referring to is ESI which is the acronym for electronically stored information. Of course we all tend to refer to documents as it tells us important things such as; how many a single custodian is likely to produce from his PC, laptop and mobile devices; how many documents, on average, are contained in each gigabyte of ESI; how many documents, on average, from a collection of pages of hard copy; and how long a review will take based upon what we know about average lawyer reviewing time. There is nothing wrong in still referring to “documents” - we all do as Andrew mentions - but, now, more than ever before as far as SA is concerned is the time to be thinking in terms of ESI. Let us take a look at the reasons that people such as Andrew and myself say this.

Obviously, the starting point as previously mentioned in my blogs is that the business world is now dominated by electronic communications and information rather than paper. We do not write letters - they are Word or Pages docs, which means they were created electronically on a machine, exist electronically, and need to be treated electronically for the purposes of litigation, investigations, competition matters etc. People are often surprised, when in my usual presentation on eDiscovery, I say that electronic “documents” are more reliable evidentially than paper ones. At such a presentation last week I was questioned on this statement and I replied that if a letter was simply written and posted how does the sender know that the recipient actually received and saw that letter? This is in direct contrast to an email attaching the letter whereby all of the properties concerning the email and its attachment are captured and stored electronically and no one can use the excuse that “it must have been lost in the post” or “it must have been incorrectly addressed”. We know it was sent, received, carried an attachment, had cc’s and even bcc’s and in some cases can prove it was actually read so of course, evidentially, it has more value than a posted letter.

So, my question which forms the title of this post, surrounds SA lawyers “thinking” ESI at the outset of a case and then following their duty as far as the Rules of Civil Procedure are concerned by searching for ESI. Are we properly researching the individual’s PC, laptop and mobile devices and the company’s servers? Are we employing the services of a forensic company? If not, and we simply rely upon the data given to us by clients can we honestly say we have complied with the rules of standard discovery? I have been on the other side in cases when my law firm clients and I knew that their opponents had not properly researched their client’s data and we made them do so, via a Court order. Furthermore, the last word which forms the acronym ESI is information and therefore we need to be looking for all forms of information and communication in order to satisfy the requirements of making a reasonable search. Don’t stop there because it is not just about satisfying the Rules - it is about doing the best for your client and trying to win the case. Information, all of which is discoverable, now comes in many forms include messaging, Whats App, Instagram, Linkedin, Twitter and all of the others so when a case commences, lawyers need to be asking their clients if the relevant people had any of these type of accounts. Someone asked me recently if emojis or emoticons are “discoverable” and the answer is a big “YES” - imagine a situation whereby one party tells another to send him a private message when he must buy some particular shares and the responder does so by displaying a “thumbs-up” emoji via a Social Media application. That is a communication, it is highly relevant, and should be part of discovery. You could easily argue that in today’s age, failure to look at all of these types of ESI is negligent on the part of the lawyer as, has indeed, been said by one well known UK Judge.

This is not revolution - it is evolution. There is no law change - you still have to make reasonable search to comply with the rules but how and where you search has changed because the world has changed. It is essential that SA lawyers and their clients widen their definition of the word “document” to include all electronic communications and information. When the Rules change it could become mandatory so why not prepare now and get used to it.