eDiscovery in SA - Significant development on Discovery Rules change


Every country that has adopted eDiscovery into its civil procedure rules has found the support of a Judge or a number of Judges. Indeed in many jurisdictions, members of the judiciary have been drivers or extremely instrumental in the changes. We have not had that luxury or benefit here in SA, relying solely on committees or sub-committees within the Rules Board, which are, at best, part time people who meet infrequently. We are told that a sub-committee was appointed to look at eDiscovery but we do not know when; we do not who the members are; but we do know that they have not contacted anyone in SA who really knows anything about eDiscovery. Therefore , recently I re-doubled my efforts to find a “friendly” Judge! A number of people had pointed me to Retd Judge Ismail Hussain but no one told me how to get hold of him! I tracked him down as he is still very active, writing books and delivering lectures and seminars including on the use of technology in litigation and legal drafting. He responded to my email within minutes and as he was in Cape Town by coincidence, promptly invited me to dinner that evening and we spent a wonderful few hours together, each of us leaving with a plan!

I provided Ismail with all of our documentation including proposed rules amendments supported by my arguments as well as a plan concerning implementation. For his part, Ismail drafted a submission including all of the background I had sent, which was forwarded to the Chief Justice, who knows Ismail very well. The plan is to not only obtain support from the judiciary but it explains how the judiciary plays a major part in eDiscovery stemming from the Case Management Conference and including implementation and proportionality, as well as to put pressure on the Rules Board. Chief Justice Mogoeng Mogoeng has the documentation before him and it is under  consideration. We expect to hear shortly on his findings and actions and we hope and believe that he will be supportive. To have the support of the Chief Justice is a game changer - if you need a Judge why not the top one!

Obviously I am indebted to Ismail Hussain and delighted to have found a new friend and supporter. Another consequence of our relationship is that he has an agreement in principle with LEAD for us to run a course across the country in 2019 for lawyers, on eDiscovery and other forms of technology. Now that is an exciting prospect and I am thrilled to be part of the initiative.

The whole aspect of eDiscovery in SA is more than taking root as I mentioned in my last post to the point that I am aware of new cases almost weekly using the technology. Interestingly, however, I have observed and some service providers have confirmed to me, that the majority of cases in which they have been engaged are investigations rather than A versus B litigation. That is perhaps not surprising in that SA does seem to generate a great deal of investigations and for sure eDiscovery technology will markedly assist in these types of matters. Typically they involve very large amounts of data and I know of cases here, where there are terabytes of data involved. As an FYI a single terabyte of data could produce over 6 million records or documents - try reviewing that amount by paper or scrolling! 

Why are there not more litigation or arbitration cases utilising technology? Of course one obvious answer is because they do not have to, as our Uniform Rules do not make it mandatory, but a more disturbing and prevalent response is that “we don’t have cases large enough and our clients are not asking for it”. Dealing with the latter first, is it not the duty of the lawyer, rather than the client to promote the necessity of using technology rather than the other way around? Trust me, as I have seen it happen in other parts of the world, when clients realise that there are better and less expensive methods of review and their lawyers have not told them, the clients will go elsewhere. As to the size of the case, of course that is relevant, especially on the issue of proportionality, but in this day and age it is very difficult to believe that even a small case contains only paper documents. What they really mean is they have a small amount of electronic documents which have been printed - a dangerous practice which I have written about many times.

Whilst I am delighted that more cases are being handled using technology I am now very conscious that those doing so need to move forward and simply not rely upon a list of keywords. There is much more than can be done and there are inherent dangers with keywords, especially an over reliance on the first drawn list. 

Clearly, things are happening here on the eDiscovery front and I must encourage more law firms and corporations to seek and obtain professional, expert help and advice. It is what I do!