eDiscovery Rules in SA Come Closer

After my previous post, it is only right that I report on what transpired at my meeting with the High Court Committee of the Rules Board of the DOJ on 4 March.

There were 10 members of the Committee present including its secretary and I was welcomed by the Chairman, a High Court Judge. I was given the floor to outline briefly where we were and to comment on the specific proposal to amend the Rules of Discovery which had been previously submitted through LSSA. Here is a snapshot summary of my presentation. 

Once I had outlined my history in the field, I gave an overview of what eDiscovery is and why it is needed. As to the latter, I spoke about the fact that over 90% of business documents are now created electronically and that over 30% of those never see paper and I referred to the fact that we have many methods of communication including SMS and of course Social Media. Clearly, all of these electronic communications should be investigated by lawyers in connection with their client’s case but also to fulfil their discovery obligations. I pointed out that I knew that in SA , in many instances, electronic documents were being printed for review purposes and I highlighted the issues of such action. Particularly, I emphasised that documents were being missed, e.g. emails which carried a BCC - the BCC would never show on a printed version and deleted emails would not print obviously. These were just two of the examples that I gave whereby using eDiscovery technology these issues are overcome.

I gave true life examples of some of my personal experiences whereby crucial documents would never have been found without the use of eDiscovery technology.  I went on to speak about the importance of metadata, again with practical examples,  as being an integral component of an electronic document and that it should be discovered as part of the document as it is in other jurisdictions. I submitted with facts, that electronic documents were more evidentially reliable than their paper equivalents. Bringing the matter home I pointed out that lawyers and service providers from outside SA were coming into our country, collecting data and documents and then returning them to their own country for processing, hosting and review - in other words SA was losing significant business.  I contended that this is partly because we have insufficient skills and experience here as we have no eDiscovery Rules, and also because PoPIA is not yet implemented so it is difficult for us to control data leaving SA. Rectifying both of these would be game changing for SA.

Next, I went through the proposed Rule amendments contained in our proposal and, forgive me, but I cannot be specific here as we have all agreed an embargo of these details until there is a definitive outcome. Suffice to say that we have referred to Rules in other jurisdictions in the world; built upon the existing legislation in SA through ECTA 2002; and made simple yet crucial amendments to the existing Rules in keeping with SA’s coping abilities. 

I had noted many “nods of heads” as I was speaking and murmurs of approval and then we moved towards how the changes could be implemented. There are a number of ways of achieving this and it became clear, very quickly, that the Committee would need more help in this area of concern. I indicated that if the Committee was minded to approve the amendments then I would be happy to assist with documentation concerning implementation. Eventually, I was asked by the Chairman if I would draft such documentation by way of protocols, Practice Directions, Guidance Notes, call them what you will, and I was delighted to agree to the Chairman’s request to provide this within 2 weeks. I was also asked to consider 3 questions (which again, I cannot specify) and answer those at the same time. They are understandable questions that I have heard many times across the world and, frankly, easy to answer save for one which is SA specific. To me, all of this was the clearest indication that they understood the need for change and merely wanted assistance  as to how to make eDiscovery work practically. As the meeting broke up, a number of members congratulated me and said they knew this was needed badly.

So, as I begin immediately on drafting protocol documentation, I reflect on the meeting at which I felt privileged to have attended. I could not have been better received. It went better than I could have expected. I received the clearest of all indications that the Rules will be amended to incorporate eDiscovery by being asked to provide implementation documentation within 2 weeks. On any view, we have taken a huge step towards what I have been working for, for the last 2 years and I will continue until it is done.

Meanwhile, I repeat that if anyone wants more information about eDiscovery, what it is and how it works etc. I regularly give presentations in SA to law firms and Legal depts. you must contact me.


[ Post image from http://www.judiciary.org.za ]