Regular readers will know that this blog was recently awarded a spot as the 54th best eDiscovery blog in the world and a recent post in the blog which occupies the No. 1 spot prompted me to write this one for SA. The No. 1 spot belongs to Cloud Nine and their most recent post refers to best practices in eDiscovery
I read this post, liked it and it is genuinely thought provoking, but it occurred to me that as far as best practice is concerned, here in SA, it would go over the heads of many people. This is not a criticism but it is a fact and the reason is, that the eDiscovery market and industry here is immature compared to other parts of the world. I will talk later about this post from Cloud Nine but first I want to emphasise that the best practices I will be referring to are aimed at SA because, bluntly, there are other jurisdictions which are way ahead of us.
The beginning is usually a good place to start and in all cases this would be identifying the source of documents and data that are likely to be relevant or at least need to be investigated. Best practice in this regard should stem from a discussion between the lawyers and the client as to the key dates, the key players, the sources of all data and documents followed by a professional, probably forensic, collection of that data. Accepting printed versions or PDF’s of original electronic documents from your client is not good practice at all. When identifying key players remember to ask about mobile devices as they contain all kinds of communications which are discoverable.
Unless the only genuine documentation in a case is a few files of hard copy (which is highly unlikely in this day and age when more than 90% of all business communications are created electronically) then this is the time, if not sooner, to consider and appoint professional help in the form of an eDiscovery Consultant and eDiscovery service provider. The earlier the better in order to maximise their value to the case and to the client.
Along with the client and professional eDiscovery advisers, begin to consider a list of keywords which will help to identify potentially relevant documents and at the same time eliminate those not likely to be relevant. I have written about keywords in the past and it is a process which I still believe to be valuable in SA….but with riders. There is little value in choosing words which will likely result in so many “hits” as to be pointless. Equally, there is a risk that the choice of keywords will overlook potentially relevant documents. Furthermore, there is a huge risk in relying solely on the first drawn list. Those jurisdictions more conversant with eDiscovery are leaning more and more to avoid over-reliance on keyword searching as the sole or main method of filtering documents in a collection, by using other methods. Look at the post from Cloud Nine to which I referred at the beginning and you will see the results from a comparison exercise of keywords against another feature, technology assisted review. All of this is specialist stuff, and in the same way that you would engage an engineering consultant in a construction case or a medical consultant in a medical negligence case so you should be engaging eDiscovery specialists to advise.
Assuming your case includes a large element of electronic documents it is good practice to inform the other side early in the proceedings as to precisely how you intend to discover and what you will and will not include. You will also expect reciprocity! In “eDiscovery mature” jurisdictions we are well and truly in an age where collaboration and proportionality play increasingly important roles and SA lawyers would do well to begin to change their mindset and traditional ways of working, to the 21st century methods adopted elsewhere.
As I said earlier it is important to avoid printing electronic documents as far as possible. Recently I was involved in a matter here in SA in which literally hundreds of thousands of pages of documents were printed straight from the native electronic version. An unbelievable waste of time and money. That said, there is often in a case some genuine hard copy documents especially in SA and the wider Africa, and if they are the only documents in existence then they must be treated properly. Simply scanning them, applying OCR software to make the text searchable is, by itself, not good practice. Best practice is to process the paper so that it has the same properties as original electronic documents when it comes to review. This entails not just scanning and OCR but the unitisation and coding of these documents as per my post on the subject.
Now is the time in the case when the lawyers need to be working very closely with their eDiscovery advisers on the use of the most appropriate technology features that are available to reduce the amount of documents that need to be physically seen. In other words, now it is about working smart to get to the really crucial documents as quickly and effectively as possible and to filter and set aside those documents which are of no value. If any lawyer thinks it is best practice for them to physically view every single document in a case then they would be wrong. Indeed, in other jurisdictions it is likely that such an action would result in a rebuke from the Judge and. almost certainly, penalties as to costs.
Review is another stage in which efficiencies should play a part. This is the longest and most expensive part of any case and best practices would include the use of as much filtering technology as possible to reduce the number of documents requiring human eyes. A further option to consider carefully is the use of outsourced service providers specialising in managed review and the combination of this coupled with the use of technology is very compelling to the paying client. SA is fortunate to have a number of providers specialising in this field and I would certainly include it is good practice especially when there is a large collection and the review needs to be done in tiers. This drastically reduces the number of documents requiring the “eyes” of higher rate lawyers and, of course means that they can spend more time reviewing those documents that really do need their expertise.
It is incontrovertible that the use of eDiscovery technology is best practice. Indeed in many jurisdictions in the world it is mandatory, and should be here. One misconception in SA is that the use of this technology its too expensive. When one considers that the review of documents in a case takes up 70% of its costs, the use of technology drastically reduces that figure and overall, using technology reduces the cost of a case by at last 30%. Another misconception here - not helped by s15 of ECTA 2002 - is the inference that electronic documents are “inferior” as far as evidential reliability is concerned. The truth is quite, quite the opposite as I have mentioned many times.
An interesting “chicken and egg” question on this topic is, which comes first, law firms taking eDiscovery technology to their clients or the clients demanding that their external lawyers utilise technology? Elsewhere in the world, the increased use of technology and ongoing developments in technology is and has been driven by what I term as “globalcorporation.com”. Maybe that is what we need in SA - more corporations demanding the use of technology to reduce the cost of their cases and ensure that relevant documents are found quickly, so that the cases can be determined correctly, or settled to their best advantage. For sure, without the use of eDiscovery technology, best practices will not be the norm.