eDiscovery in SA - Does spoliation and proportionality have any relevance to eDiscovery?

I could begin and end this post very quickly by simply answering the title question, “Probably very little…. at the moment”. However, that would serve little purpose as these two subjects are extremely relevant to eDiscovery elsewhere in the world and therefore should be noted carefully here in SA by law firms, their clients, and service providers alike. 

Let us first look at spoliation. Strictly, it is any wrongful deprivation of someone else’s right of possession. One can imagine actions made, for example, by landlords who take matters into their own hands when a tenant fails to pay rent, such as, changing locks or switching off power etc. I was also interested to read a recent article in De Rebus referring to a Director being denied access to his workplace- 

 The remedy in SA is a Mandament van Spolie which effectively restores the status quo. 

In the UK, spoliation appears to go back as far as the 15th century in relation to Ecclesiastical issues involving Church ownership of property but we are not talking about property or rights of access in this post, we are talking about spoliation of evidence.  In fact I would say that if spoliation was mentioned in the UK, and even more so in the USA, it would only mean the destruction of electronically stored information (ESI) in connection with proceedings or investigations. Spoliation arises from what is known as Legal Hold and this is a principle which is much stricter in the US than the UK (or anywhere else) and that is almost certainly because the sanctions are more severe in the US. The UK refers to this more as preservation, but whatever it is called the outcome is the same, and what we are really referring to is the retention and destruction of ESI, highlighted when litigation cases and/or investigations are anticipated. No one suggests for a moment that all ESI (or any other types of documents) must be kept for ever and there have been numerous cases in various parts of the world on this subject. It is more about the timing of the destruction rather than the act itself. If there is a company documented policy and procedure, that, for example, emails and electronic documents will be destroyed after 5 years, and that is adhered to, then it is highly unlikely that sanctions would be implemented.  However, the issue here is the destruction of data once a case is anticipated or initiated and such an act would be spoliation and would attract sanctions. 

As I mentioned earlier Legal Hold is very “big” in the US and Legal Hold notices and Court Orders are part of the regular routine. Furthermore, some eDiscovery solutions specifically cater for this process. In the UK, whilst there is no strict Legal Hold concept as such, there is preservation and it is normal, and indeed good practice, to put the other side on notice of anticipated proceedings and that they must not delete or destroy any potentially relevant data. Failure to abide by such a notice would be prejudicial to put it mildly. 

Here in SA, I see no legal reason whatsoever why our laws relating to spoliation should not apply to data and documents in an anticipated case or investigation. Does anyone use it? I do not know but for sure I advise my clients that they should give notice to the other side at the outset, with regard to preservation of data and documents, and I would be happy to argue, before a Judge, that failure to observe such notice should be sanctionable.

Now we move on to proportionality. Without doubt this aspect of civil litigation is led by the UK but is now gaining considerable traction in the USA as well as other parts of the world.  In the UK, proportionality is the “overriding objective” in Civil Procedure. It relates to the cost of the case and each side has to estimate its costs and present them to the Judge at the Case  Management Conference. The estimate is prepared and submitted by form Precedent H  and by the way the form is a signed Statement of Truth (same as an Affidavit, but not sworn, although none the less perjurious!)The costs estimate goes from identification and collection of data and documents through processing and analysis, discovery, review, trial preparation and production. You may ask what is the point of all this? Well, it is all about ensuring that the costs of dealing with the case are proportionate to the value and merits of the case itself. In essence, if you have a case in SA worth R1m then it would be disproportionate to spend R5m on trying to win it! Or, to be more precise if you did spend R5m and win, it would not be right that you should recover more costs than that which would be deemed appropriate to a claim worth R1m. We are, therefore, only referring to recoverable costs and not lawyer and own client costs. In the UK you certainly would not recover those excess costs and the Judge would make that crystal clear at the CMC and encourage either, smarter methods of collecting and reviewing the data, and/or entering into settlement negotiations! It is plain to see, therefore, that the use of eDiscovery technology and the overriding objective of proportionality go hand in hand. Imagine telling the Judge that you intend to look at every one of the 1m documents in a case at a total cost of R5m when by using the features and techniques of eDiscovery technology you only need to have “human eyes” on 100,000 of the 1m documents earn the cost would be less than half of the R5m forecast. What is the Judge to do? In the UK it would be simple, he would make an order that compels the use of the technology and at the same time make it clear that failure to do so would attract penalties as to costs. I wonder what our SA Judges would say or if they even have to consider the question of costs at directions or pre-trial hearings, as part of their remit? Going back to the estimates in UK Civil Procedure, I hear your brains working and thinking that you merely insert some sort of arbitrary figures and that is the end of it. After all, how does anyone know what will happen and what will be found as the case progresses so it would be easy to simply pass off the discrepancy with a “oh well, we found another server with truck loads of documents and 30 more custodians”. You could try that but it would not work. In practice you are “allowed” a small percentage leeway but if something happens which would take your budget well beyond your estimate, you must file a revised budget and if necessary “square it” with the Judge. I will simply add that in the UK, until 2013, the test of proportionality was known as the Lownds Test (following a case where one of the parties was named Lownds in an action against the Home Office) and after the Jackson Reforms in 2013 the new test of proportionality was covered with an amendment to the Civil Procedure Rules. As I have mentioned in a previous post, there is now a pilot scheme about to commence in the UK to change the Rules once again. There is no doubt at all that proportionality stays and the specific use of certain types of eDiscovery technology along with much greater collaboration between the parties, their lawyers and service providers will ensure its adherence. All of this is a huge topic and one which undoubtedly merits a post of its own ( N.B. contact me if you want a post on this topic or indeed any other), but at the moment I am merely trying to give SA a glimpse of how things are done elsewhere.

Wearing my SA hat, 4 things shout out to me on the question of proportionality:-

  1. Everyone, including the Courts should have a duty and responsibility to keep the costs of civil proceedings down
  2. eDiscovery plays a massive part in this and should be incorporated into our Uniform Rules as soon as possible.
  3. Judges must play a bigger role in case management, which would mean a greater understanding of eDiscovery technology and the importance of pre-trial directions  hearings should be escalated into Case Management Conferences. 
  4. Attorneys should “learn” to be more collaborative with their “opponents” as to the use of technology and costs

In conclusion, South Africa, if we are to be recognised, globally, as a stage for the resolution of disputes then we should begin to accept that words such as spoliation and proportionality need to form part of our daily vocabulary.


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