What does 2017 hold for eDiscovery in SA?

A Happy and Prosperous New Year to all of you and huge, huge thanks for your wonderful support and for reading, liking and sharing my posts in 2016. South Africa is shuffling back to work after our usual long holiday break at this time of year and I can already sense an anticipation over the year ahead. None more so than in my world of eDiscovery technology.  Could this be the year that SA sets it’s feet firmly on the global eDiscovery map along with Data Protection and Privacy?

As to the latter there must be more than a possibility that 2017 will see us close to implementation of PoPI. I was privileged to be asked to co-chair an international event in CT on DP & Privacy and even more so to be asked to do a repeat in Johannesburg in March - here are the details, check the link, register, and attend this tremendously exciting and excellent event with first class speakers.

What about eDiscovery? The main talking point has to be about my initiative to change the Rules, supported by LSSA. For those who have not seen my Tweet the up to date position is that I have been invited to meet the High Court Committee of the Rules Board on 24 February in Johannesburg. I am asked to present to them and engage in a discussion as to the thinking here and discuss the way forward. Without wishing to be over-dramatic, I believe this is one of the most important and far reaching presentations I will ever have done in my business life. A positive result would impact on so many people in SA and beyond. I say “beyond” because I have been contacted by people in the wider Africa who are watching developments in SA closely and there is a sense of a “domino effect”. I would welcome comments, thoughts, fears and/or advice on any points to raise or defend at this upcoming meeting. Especially, I would more than welcome comments from within SA from law firms, lawyers, institutions, corporations and service providers all of whom would be markedly affected by a positive Rule change.  Having met and communicated with so many people in SA over the last 2 years and developed over 3000 SA contacts, I detect a divided set of opinions and actions. On the one hand I have so many well-wishers, supporters and positive views waiting with baited breath to hear more news. On the other there is a “let’s wait and see” and “keep our powder dry” attitude which I can totally understand because I saw it in the UK many years ago but I warn that, like the UK, if you wait too long before finding out what eDiscovery is all about then you may miss the proverbial boat. The technology should be used right now, far more than it is already and comments or thoughts like “it doesn't apply to me or my company”, or “our clients will never pay for it”, or even “we will wait and see what everyone else does”, should not be sustained. Be bold, learn more, win more cases and clients by being proactive with the use of technology so that you differentiate. Stop the practice, right now, of taking risks that you are missing documents in cases or investigations and remember that using technology ensures chain of custody and proper audit trails - anything less could lead to a negligence suit!

To service providers in SA, I say, “wake up and smell the coffee” - where are you? - what are you doing about eDiscovery? Let me tell you that service providers outside these shores are watching what happens here very closely and they are already experienced not only in how to use the technology but how to sell it! Personally, I want to see SA service providers develop their skills, gather more experience and prosper but I must warn that, equally, I will not hesitate to support providers outside SA especially if I feel that those within are continuing to bury their heads in the sand. 

I can also see that there is a lot happening in eDiscovery outside SA not the least of which is the annual LegalTech New York only a couple of weeks away. A UK friend of mine describes it as the greatest Legal IT event in the world. I was fortunate to attend on 12 occasions and apart from meeting old and new friends it is always great to see and hear technological innovations. For sure whatever we see in NY finds it’s way across the eDiscovery world eventually. It seems to me that one of the major topics this year will be hosting eDiscovery solutions in the cloud which is already hitting headlines. I have thoughts on this but let us first see what transpires and what is new. This leads me to think that I must dedicate my next post to solutions which are available in SA now and/or may be in the future. Another interesting debate stems from an article by another friend of mine Jo Sherman - maybe with her tongue firmly in her cheek she suggests that we should drop the “e” from eDiscovery now that the market is so mature and “e” docs are the global norm. I can see exactly what she means but I would have to say that in an emerging market like South Africa and the wider Africa the term eDiscovery is essential to differentiate with what is happening now. Furthermore, if the “e” were to be dropped it is not just a question of usage - the term eDiscovery is contained in numerous Civil Procedure Rules and Practice Directions in various parts of the world and one can only imagine the turmoil of having to change all of those!

So, finishing where I started, I am already preparing my thoughts and presentation for my February meeting with the Rules Board. I cannot predict the outcome but it is my absolute pledge that I will give it everything that I have.