eDiscovery in SA - Global eDiscovery happenings and in South Africa a new President!

First and foremost I offer my sincerest gratitude to all who read and support my blog, especially those from within SA. The news that my eDiscovery blog had found 54th place in the world was viewed by well over of 1000 of you. Thank you for reading and for all your comments and support.

There is a lot happening around the world on eDiscovery judging by the volume and variety of information which comes across my desktop on a daily basis, far too much to disseminate and provide worthwhile interest to my target market here in South Africa. However, it is always good to see a snapshot of what is happening elsewhere as a kind of precursor to what may, eventually, happen here.

Obviously, most of the information emanates from the USA which is not surprising given the size of the jurisdiction; the huge number of global corporations based there; the length of time that the USA has been involved in eDiscovery; the data sizes in USA in comparison to elsewhere; and of course to say nothing of the fact that the USA is undoubtedly the most ‘litigious” jurisdiction around! The Rules of Civil Procedure in the USA (FRCP) incorporate eDiscovery which regularly features in various Federal Rules Amendments on an almost annual basis. That said, individual States have their own interpretations and trends often driven by far sighted Judges. Interestingly, one of the best known of these, Judge Andrew J. Peck has very recently retired from the Bench and joined law firm DLA Piper in New York as Senior Counsel. That is interesting to those of us involved in eDiscovery because Judge Peck has been one of eDiscovery’s most influential figures for a number of years and I have been privileged to have heard him speak on a few occasions. I have thought many times since I moved to SA, “If only we had a Judge Peck”! The USA has a very large eDiscovery industry in that the vast majority of eDiscovery software is developed there; there are numerous providers and in house Litigation Support Managers and Depts; and of course, therefore, the most consolidations, acquisitions etc. One of my eDiscovery friends and colleagues in the UK, Jonathan Maas , alerted me recently to a merger between two large law firms, the US originated firm of Bryan Cave and UK’s Berwin Leighton & Paisner which creates another global giant. I know these firms from my time in the UK and worked with both on eDiscovery matters. The relevance to SA of mergers such as this is the general point that some firms are looking all the time at how to change or improve or grow and here, we have already seen a number of US and UK firms position themselves in SA or establish alliances. My specific interest from an SA eDiscovery aspect is that they are, often, already well versed in eDiscovery or have preferred providers from the US or UK.

Just because the USA is big and the industry is big does not mean that they are always right or even innovative. Some think that there can be a tendency to overcomplicate  or over engineer eDiscovery processes and practices in the US which leads to higher costs. Furthermore, other jurisdictions, the UK in particular, have led the way in certain aspects of eDiscovery and its Rules.

Turning to the UK, eDiscovery became part of the Rules of Civil Procedure a number of years ago but became much more focussed by Practice Direction 31(B) and my friend Chris Dale was part of the Working Party to draft that PD and its accompanying questionnaire, which finally hit us in 2010. Three years later came what we call the Jackson Reforms, which were primarily aimed at reducing costs. Now, the UK is about to bring about even further amendments involving eDiscovery as there is another Working Group who contend that the Reforms have not worked and that the whole aspect needs to be re-visited. Again, one of my UK contacts is part of that Group, Ed Crosse a Partner at Simmons & Simmons. There is much written on this subject but in simple terms, it seems to me that co-operation and collaboration will be much more to the fore, aligned with proportionality as the overriding objective. The changes are supported by the Judiciary and a 2 year pilot scheme will commence this year. Without doubt eDiscovery processes such as Technology Assisted Review (TAR) will play a greater role in appropriate cases, obviously as a result of decided cases around the world including UK, involving this process. The same has happened in Ireland which has eDiscovery incorporated into its Civil Procedure Rules but has a major decided case on the use of TAR which has prompted TAR to be the Court accepted and guided norm in suitable cases.

Elsewhere New Zealand continues to go from strength to strength as far as eDiscovery is concerned and, as I write, is holding its annual Lawfest at which eDiscovery related matters feature heavily. Much of what is happening in NZ including Lawfest is driven by my friend and co-eDiscovery blogger, Andrew King.  Australia has had eDiscovery for more than 10 years and jurisdictions such as Canada, Hong Kong and Singapore etc. have eDiscovery Rules. Regular readers will note that I rarely mention mainland European countries in the context of eDiscovery and that is simply because they do not embrace the concept of Discovery in civil litigation. It does not mean however that eDiscovery technology is not used in Europe as there are a large number of European matters whereby the technology is essential largely due to Data Protection issues and there are many installations of eDiscovery software or cloud based instances via various service providers throughout Europe. 

So, with all of this happening all over the world where the hell is South Africa and are we falling farther and farther behind? For example, as yet, we have not had a single case in SA involving TAR (despite the fact that I know of several which were large enough or of sufficient complexity to warrant it) whereas there is even a valid suggestion from the UK that in some cases TAR will not be enough .

Given that experts are telling us we are still to expect a “Data tsunami” which means even more electronic data it is blatantly obvious that SA really has to move forward sooner rather than later. In my post early in the year I wrote about very positive signs here and I certainly stand by that. However, I still see a lack of understanding on the part of many lawyers as to what eDiscovery is about and I worry that for some, even if they use the technology, they have insufficient belief or trust in the system and still end up reviewing in the old way, albeit on a platform instead of paper. I am also still seeing large volumes of electronic documents being printed for review which is so so wrong. There are things happening here with providers and law firms and, as I say, I stand by my prediction that 2018 will be an important year as far as eDiscovery is concerned but, in the end, it all boils down to the Rules. Everyone knows how hard I have worked for more than 2 years on having our Uniform Rules amended. It is now more than 14 months since I was invited to present to the High Court Committee of the Rules Board, yet not only have I heard nothing but my emails are ignored.  I really think, as a Government Dept, they should be accountable and have a duty, at the very least, to inform interested parties as to where we are. Maybe, SA Attorneys could write to their governing body, the LSSA, expressing their desire to see this change in our Rules quickly. I believe that the LSSA would faithfully relay that message to the Rules Board. 

What does all of this have to do with the fact that SA has a new President? Well I will tell you. For sure, he has many many priorities to which anyone who lives in SA can attest and I do not intend to list them here. That said, there are two things that his Government could do easily and quickly which would have an effect on the country’s economy and global standing. Firstly, is to bring about this Rules change to incorporate eDiscovery and secondly to ensure that POPIA is fully implemented this year. The combination of these two points would halt the drain of data from this country and would also create jobs in SA as well as attract investment. There you go, I should be President because I would do it…… not sure about all the other priorities though!

 

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