eDiscovery in SA - 2018 review to date, Keywords, TAR, LPA, POPIA and all that jazz

In January I wrote that 2018 could be SA’s most important year for eDiscovery thus far, and as we move from Q3 towards Q4, it is relevant to see if I may have been right. 

There is no doubt in my mind that there has been a significant increase in the use of eDiscovery technology within SA in 2018, which, by itself, says that my prediction was accurate. There are law firms with several cases in house employing technology whereas, a year or two ago it may have been only one case. There are law firms that have used eDiscovery technology in 2018 for the very first time. There are law firms that, in the past, have chosen not to show interest in eDiscovery technology but, this year, asked for presentations, so that they could “bring ourselves up to date” as one Director of a large law firm told me recently. We have also seen a new eDiscovery service provider making an entrance and a mark and I will write more on that later in this post. Furthermore, there has been a “first” in SA in that another provider, Lextrado, www.lextrado.com has 2 people who have become accredited by ACEDS and my information is that there are likely to be a further 2 people later this year - this is a first for SA.

For sure, I have also seen considerable more comments, contact, and questions about my posts which is always encouraging and I would like to refer again to some of my recent writings. Last month my post on a basic introduction to TAR for SA received many comments and questions and I want to mention that again, as so much is written on this topic across the world on an almost daily basis. There is significant growth of this and similar technology such as Continuous Active Learning (CAL) in other jurisdictions. My article focused on the original and most used concept, but as AI continues to develop there are some solutions which employ CAL as this does away with the iteration sampling. Frankly I applaud all kinds of computer assisted technology that reduces the time and cost of review whilst remaining evidentially viable. I mentioned in my post that we now have a number of decided cases in various jurisdictions and there is so much written on the subject everywhere. It can only be a matter of time before it is deployed here in SA and, again, I urge people to contact me for more information and advice on the subject. It has gained prominence largely because of the need and desire to reduce costs and time but also because of the increasing doubts on the efficacy of keywords alone. I have written about this before but it is worth repeating that keywords are fine, especially here in SA with an embryonic industry, but there are risks and it is crucial to employ experts to assist if keyword searching is to be truly valuable. Having a list which is over inclusive will defeat the object and the opposite is likely to miss documents. I detect an over-reliance on keyword searching in SA, which in itself is a good thing as it shows more familiarity with eDiscovery technology, but it also shows that it is time now to be considering other and additional features of eDiscovery technology. The use of analytics is where we need to be in conjunction with keyword searching. 

Speaking of using more technology to aid review, prompts me to comment upon the fact that the UK is on the brink of adopting a new set of Rules of Discovery (or Disclosure as it is still called in the UK). It should be borne in mind that the UK has had eDisclosure incorporated into its Rules for many years and indeed has had more than one revision. The latest has now been signed off by the Rules Committee and is subject only to Ministerial approval which is almost a “given” and therefore will be implemented on 1 January 2019. Check out the new rules and once again you will see how far behind we are in SA. The UK’s new Rules were drafted by a Disclosure Working Group which included the judiciary, and again I have mentioned in the past, the importance of “buy in” from Judges - if only we had that here in SA! I communicate with a member of the DWG, Ed Crosse  and he says that there was a feeling that change was needed partly because corporations were looking overseas as venues for their actions, as the UK was thought to be disproportionate. Ed is also quoted as saying “….It is our duty, however, to ensure this system is both proportionate and fit for purpose in the modern digital age.” Oh, how I wish for sentiments such as that in SA!

The above brings me to where we are as far as amending our Uniform Rules here. You know, when I read all that is happening elsewhere it really frustrates me that we hear nothing from our Rules Board. In case you did not see it, De Rebus published an article from me on the topic last month and I guess I am hoping that something may come from that. Meanwhile, I am now working hard trying to find a Judge who could assist and lobby and I have already been given one name by a law firm client of mine - Judge K M Satchwell as well as Retired Judge Ismail Hussain. Any other ideas welcome. One important matter is that I encourage, even beg (!), law firms, corporations, Advocates etc. to write either direct to the Rules Board or the LSSA expressing their thoughts on the need for a change in the Rules here. Sometimes I feel I am a lone and insignificant voice so any help would be greatly appreciated and if you need contact details get in touch with me please. 

I guess the Rules Board may say they are pre-occupied with the Legal Practice Act which is now imminent. I was reminded by one of my best law firm clients that there are aspects of LPA which deal with costs, tariffs and budgets in cases - I am astonished, as I fail to see how you can have this without eDiscovery, which is proven to reduce costs. Finally on SA legislation, when is POPIA going to move forward to implementation? I know that we now have a Regulator and I keep reading that steady progress is being made but I recently emailed the Regulator’s office to ask a fairly simple question as to how providers could register as Data Operators, and was simply told that no decisions on procedural matters such as this had as yet been made and to keep looking at the website! I keep saying that the absence of POPIA and eDiscovery rules, serves only to allow the continual drain of data from our shores. 

OK - enough negativity - let me revert to the beginning of this post when I spoke of the positive eDiscovery happenings in SA. I mentioned that this year had also seen the emergence of a new service provider and I went to see them. They are Cloud Essentials (aka Soarsoft International) - https://www.cloudessentials.com - based in Johannesburg, Cape Town, London and Clevedon (near Bristol) in the UK. I always say that to be in the eDiscovery space you need good technical IT and data knowledge, as well as legal/discovery knowledge. Cloud Essentials have both. They are Microsoft Gold Partners (which is no mean feat) and have been around for 20 years or so. Part of their business, centres around migration of IT systems and solutions - they are expert at Office 365, which is effectively going to take over, eventually, all other MS systems such as Microsoft Exchange etc. As such they already work with a number of law firms and institutions in SA and it is this that led them into eDiscovery at the request/suggestion of some of their clients. One of their Directors, Adam Bown is ex EY where he specialised in Forensic Technology and eDiscovery, and they have an in-house Counsel who understands litigation etc. Having decided to extend their services they looked for a solution, and after a long review of 6 or 7 decided upon EDT - https://www.discoveredt.com . Director Chris Hathaway told me they were looking for an appropriate modern solution which was user friendly, especially for the SA market which is not that experienced, and they felt that EDT fit the bill. Now, I know EDT from my time in the UK and since I came to SA I am still in touch with the founder and owner, Jo Sherman. Jo and I reminded each other recently that we had been industry friends for 15 years and certainly when I first knew Jo, her solution was a bolt-on addition to the Ringtail eDiscovery solution which was very popular in Australia and the UK at the time. Eventually Jo expanded and launched EDT as a stand alone eDiscovery solution about 10 years ago and Jo is now based in the USA although she travels to the UK and Australia often. It is a little while since I saw EDT but it was always user friendly and part of Jo’s mantra is not to over engineer eDiscovery. Clearly, Jo Sherman, EDT and Cloud Essentials is a good fit and there is definitely a place in the market in SA for them as they are already showing. BTW, as their name suggests they host EDT in the cloud in Europe through Microsoft Azure, and Chris Hathaway confirmed to me that MS Azure is planned to be in SA by November of this year.

I predicted 2 years ago that more service providers would work here in SA and competition usually signifies a healthy market. At the moment I would not perhaps describe eDiscovery in SA as a healthy market but it is showing signs of development.

All we need now is to get the damn Rules changed so please consider this and do what you can to assist me. There will be more happenings this year, I am sure, which will confirm my prediction that 2018 was great for eDiscovery in SA - so watch this space. Remember also, that I am the only independent eDiscovery Consultant in SA and I have more experience of eDiscovery than anyone in the country. Contact me if you need help, advice or assistance.