eDiscovery in SA - SA needs to change its discovery rules - Phase 5!

After a very hectic few weeks on this topic I decided to take a breath and try to give you a sense of where we really are. For sure, it has been quite a stressful time of late and it has kept me awake a lot but I definitely feel it is all worthwhile. There is little doubt in mind that we are now nearing the crunch time where we will know, one way or the other, where this is all going to end. Allow me to continue my practice of doing all I can to keep you informed.

You will know that just over 2 weeks ago I was invited to speak at a meeting of the High Court Committee of the Rules Board to tell them more about eDiscovery and this was as a follow-up to the formal submission to them of proposed Rules amendments to incorporate eDiscovery. There were comments, questions and concerns which the Chairman summarised and indicated to me by way of a request for further information. I noted the points carefully and volunteered to supply a written response within 2 weeks as requested. 

I contacted LSSA again through my local contact who has been working very hard on this matter with me and we met to discuss the next step. After I had noted and made my comments on the matters raised by the Committee we agreed to maintain consistency and LSSA drafted a further submission based upon what I had written and reported. As we reached the last day of the self imposed deadline I contacted the Rules Board and told them what we were doing. I was immediately contacted by them saying that a further submission from LSSA at this time was not what they wanted, and whilst they would happily accept and read such a submission what they needed first was a memorandum from me. They wanted my responses to their questions and practical concerns and also wanted some assistance with regard to terminology and practical implementation. As I had already prepared a document for my LSSA meeting and read their drafts, it did not take me too long to do exactly what the Committee were asking and I managed to submit my memorandum at the very limit of my deadline.

You will be wondering about the questions and concerns and as I have previously stated, I cannot give full details of these as we have all agreed to keep certain elements confidential at this stage. Suffice to say that some were very practical matters such as is it necessary to have technology/internet in the Courtrooms to which the answer is “No”. If there is an additional aspect of Discovery i.e. eDiscovery, how does one marry the two types in appropriate cases? Obviously this refers to those cases where there is both genuine hard copy as well as electronic data and as I have pointed out this is very often the case. Either the hard copy can be digitised and the resultant images incorporated into the electronic collection thus making the whole Discovery electronic or the hard copies can be listed in the normal way along with the electronic documents so that both types appear on the Discovery list.  If previously deleted emails are found but are privileged e.g. Attorney/client communications how are they dealt with? The answer here is that eDiscovery does not change how discovery is made. Of course such communications remain privileged and it would be entirely a matter for the lawyer to discover or withhold on the grounds of privilege in exactly the same way as normal. I was asked to comment on the role of the Judge in future Case Management Conferences which I was very happy to do and also answered questions about how data is obtained from the cloud and other storage methods and devices. 

Then the comments were about practical matters such as terminology and practical implementation. I provided a glossary of terms to assist on the former and then, using extracts from Guidance Notes contained in the eDiscovery Rules of New Zealand provided examples of technology features that can be used along with a listing and exchange protocol. I should mention at this stage that I have the written permission of a Judge in New Zealand to do so! 

Finally, there were practical questions about disseminating all of this new practical information across SA, and again, whilst I cannot go into detail at the moment I was able to say that I have been invited by LSSA to give the first of what we anticipate being a series of workshop type presentations in Port Elizabeth on 22 April 2017.

Therefore, all of the practical matters and responses have been submitted and I have been thanked for the memorandum which they have now circulated to all members of the Committee. We must wait for their further consideration and decision. I feel that tremendous progress has been made and my optimism continues to grow.

Meanwhile I must thank once again all those who have sent messages of support to me in my quest to align SA with other global jurisdictions and I repeat my pledge to do everything I possibly can to bring about these important changes.  I reflect that it is interesting that when I first began to talk about this almost 3 years ago, some people said I would never even find the right people with whom to speak and that these changes would never happen here in SA. Well, they were wrong about the first comment - let us see if they were wrong about the last.