10 Do’s and Dont’s of eDiscovery in SA

In my 2 years of living and working in SA I am seeing the sort of issues here that jurisdictions such as UK, USA, Australia and New Zealand etc. have all been through. SA is my absolute priority now and I want nothing more than to help to raise standards, increase efficiencies and thereby reduce the cost of cases here in SA. I have said many times in the past that I know that SA is losing business as certain cases are being taken out of the country and it behoves all of us to show the rest of the world that we can handle cases just as properly here as in other jurisdictions. But, and it is a big “but”, we have to use all of the tools and all of the experience of others to prove to SA clients and “globalcorporation.com” that SA lawyers and SA service providers are up to the mark.

During the last year or more we have looked at the various individual processes that make up a case using eDiscovery technology whether that case be litigation, arbitration, competition or an internal or regulatory investigation. We have also looked at a variety of other topics along the way and so I thought, at this stage, it may be useful to encapsulate some of the blog posts by listing a 10 point checklist of Do’s and Dont’s for a case in which eDiscovery technology is to be used. This is by no means an exhaustive list nor are the points in any order of either chronology or importance.

  1. Early consultation - ECA is a common acronym in eDiscovery and it means Early Case Assessment. A misnomer in my view as it should be EDA or Early Data Assessment when referring to the data and documents in a case. The wider view of assessing a case as early as possible is something I would expect every lawyer to do and covers all aspects of the case and not just data. As far as data is concerned it is essential to “get a handle” as quickly as possible on just what is involved; where it comes from; how easy or otherwise is it to acquire; who are the key custodians; do they have any information on portable devices; and these are just some of the features that need to be addressed quickly. My strong advice is to consult as early as possible with a good service provider or eDiscovery Consultant to ensure that all aspects are covered and a complete strategy is prepared. 
  2. ESI - be alive to ESI (electronically stored information). This follows on from and is part of the above but over 90% of business documents are created electronically so it would be highly unusual if the client simply handed over paper files or boxes containing hard copy documents stating that this is all they have. Some, if not all, of these documents would have been created electronically and it is those that you need rather than the paper. Think ESI.
  3. Data collection - there are 3 ways of collecting data from a client. a) forensic collection by a specialist b) self collection i.e. receiving the data direct from the client and c) what I call a “hybrid” collection whereby a forensic company works with a competent IT Dept to collect the data. I would always recommend a), never recommend b) and sometimes recommend c). You have to know that what has been collected is what is needed and nothing has been missed. For example, a) and c) will include emails and e-files that have been deleted whereas b) never would.
  4. DO NOT PRINT EMAILS - or any electronic documents without discussing with an eDiscovery Consultant or good service provider. If you print emails you do not know what you might be missing and you will not recover the metadata of those emails and their attachments or any documents existing in an electronic format. The metadata tells you “Who knew what, when”!!
  5. Keywords - if keywords are to be used (would have been discussed as part of the early strategy) then they need to be chosen very carefully - see my post specifically on this crucial topic.
  6. Hard copy documents - some cases will have genuine hard copy documents which do not exist in electronic format and these need to be processed properly. Simply scanning them in house or via a commercial scanning company and then attempting to find what is needed via solutions such as Adobe will be more time consuming and the opportunity of missing relevant information will be increased. See my post on the subject which outlines the best practices for dealing with hard copy and the reasons for doing so.
  7. Review - establish and develop an efficient and cost effective review strategy. At the risk of repetition of this most crucial aspect, see this post
  8. Data Protection and Privacy - a huge topic, but in simple terms lawyers in SA should be working now in anticipation of the implementation of PoPI. It is likely that data collected from custodians will include some personal data and a strategy needs to be clarified, together with the client and the service provider BEFORE the data is collected and processed.
  9. Global - look at, and keep up to date with, what is happening globally in eDiscovery. The technology and best practice is evolving all the time and it is good to keep up to date as much as possible. For sure, what happens in this space in the USA or UK etc. will eventually find its way to SA!
  10. Bid strategy - it is essential for a law firm that is serious about having litigation, arbitration, competition or regulatory/internal investigations as part of its services portfolio, to have a comprehensive “bid strategy”. This should include, for example, the use of eDiscovery technology and consideration of LPO companies for review which would add value as to the how the matter is handled and show the client an absolute determination to differentiate and be cost effective. Part of this would include possessing a working knowledge of document and data volumes

As I said, these are not exhaustive points by any means but they are all so important from a strategic aspect. I can expand upon them, or other related topics and you only have to contact me with comments, questions or requests for further information. I have to add that these points also show how using an eDiscovery Consultant will add value to a law firm or in-house legal team!