We are all waiting patiently to hear the outcome of my initiative to have the SA Rules of discovery amended to incorporate eDiscovery. The very latest information as of a few days ago is that the High Court Committee of the Rules Board meet again later this month after which they will make a formal recommendation to the main Rules Board. Assuming that it is a positive recommendation (and I doubt they would be prepared to tell me!) we will simply have to wait again for the legislative and constitutional process to take its course.
I have said in the past that the proposed amendments are quite simple as against the more complex rules of discovery in other jurisdictions. I had to accept that those jurisdictions are more advanced than SA and always remember that SA is a developing country (which is a nicer phrase than a third world country!). For sure, if the amendments are made then it will mean that SA would be the first developing country to adopt eDiscovery rules and I would be mightily proud of that. I am not prepared to consider a situation whereby the rules are not amended and therefore will only cross that bridge if and when we get there. I can say that the proposed amendments would be firmer than the ECTA 2002 as far as a “data message” is concerned and that it will be mandatory to discover electronic documents and to make them available along with their metadata for discovery inspection. I am not permitted to say much more than that at this stage. There has been much discussion between the HCC of the Rules Board, the LSSA and myself as to how to deal with practical implementation. All I can say at the moment is that I provided a draft of a glossary of terms along with practical steps including various eDiscovery technology features leading to an exchange protocol. The precise format of that and more to the point, how it is brought into play is, for the time being still under consideration. I have made my thoughts and preferences known but I will happily accept whatever decision is made if and when we get to that point.
You are now duly updated as to the Rules as I have continually promised, so let us take a brief look at what else is happening in my world as far as eDiscovery is concerned. Last week I had a very long, exhausting, but hugely satisfying and enjoyable day in Johannesburg. It started with an eDiscovery panel discussion at a major law firm. I was on the panel along with two litigation technology experts from the law firm concerned as well Danny Myburgh of Cyanre - www. cyanre.co.za -. Danny’s company hosts a litigation database software solution called Summation, which I mentioned in a previous blog post and it was good to hear from him about data volumes in SA cases, as well some of the features of the solution that I have talked about in the past. What made this particular panel discussion so interesting is that it was ostensibly a “dry run” for a repeat in a few weeks time but then, it will be with invited clients of the law firm. I really think this is far seeing, exciting and I am looking forward to it tremendously.
After this event was over I then met with two other major law firms to talk about eDiscovery and had excellent conversations. Both were extremely positive and we are now making arrangements for me to do my eDiscovery presentation to them in the foreseeable future. So, that was my day in JHB and as I said it was enjoyable, satisfying and extremely encouraging.
As I was flying home to Cape Town the next morning I was thinking of the large number of other law firms in SA to whom I would really like to make my eDiscovery awareness presentation. I know that they would find it interesting and educational. Please do contact me on email@example.com to discuss and organise this - you do not want to be left out!
I will conclude this post with a comment that may be blindingly obvious but nonetheless worth saying and this is a message to law firms, lawyers, corporations and institutions alike. Do not wait for the Rules of Discovery to change before embracing eDiscovery. It is not like a tap to be turned on only when you have to. Electronic documents are here right now and have been for some considerable time (do you know that the SA Law Reform Committee recommended that SA discovery rules should incorporate eDiscovery as long ago as 2014?). As we stand right now, you may not be breaching the Rules by ignoring eDiscovery, but you could well be (a) missing important documents, (b) failing to fulfil your discovery obligations, and (c) even losing a case or settling on disadvantageous terms. A change in the Rules does not change the documents that already exist - it merely makes it compulsory to do what should be done in any event! Think about it and contact me for further help or information.