Those who know me are aware that I keep a close eye on the global industry of eDiscovery through my international contacts. It is crucial to see what is happening elsewhere, partly to keep up to date with important happenings and also because most things filter through to, or affect, SA eventually.

One matter which caught my eye is yet another case involving fake ChatGPT citations. This time it was in Colorado and the lawyer concerned was suspended for a year for citing case law in a motion which he found through ChatGPT. He failed to inform the Court of the existence of the false cases after he filed his motion and also did not withdraw the motion. Originally, he placed the blame on the shoulders of his intern but in a subsequent affidavit he explained that he had used the platform when he drafted the motion. His actions violated the Colorado Bar Associations Rule of Conduct and, in fact he was to serve 90 days of the year long suspension and the rest would be “waived “if he successfully completed 2 years’ probation.

You have to wonder how many more cases we will see before lawyers get the message and one can only assume that sanctions will be harsher until they do.

When you have been in eDiscovery as long as we have, you expect to see, year on year, improvements and new features and the industry rarely disappoints. When I think back many years ago to being excited seeing a solution “tally” documents by custodian and I look at what has developed since it is really quite astonishing.   As I say, we expect, and corporate clients expect, constant changes which react to the ever growing volumes and increasing complexity of electronic data, all aimed at saving time and driving down cost. However, just once in a while, a new feature occurs which is truly game changing, and I cannot remember being quite as excited as I am now to see Relativity announce the launch of aiR for Review, at their recent Relativity Fest.

What is it? What does it mean? Why am I so excited?

As it is more than 6 years since I was invited to present eDiscovery to the Rules Board of the DoJ, I thought it was about time to attempt to obtain some idea as to whether there was any progress or not, despite the fact that I was told not to “pester” them! As if I would!

We all know that they have implemented the e-Court Rules, Court Online as well as Evidence Management via Caselines. Court Online is in essence an e-filing system, in other words, it is NOT eDiscovery. Nor is Caselines, which simply deals with the electronic production of documents such as trail bundles. Neither determine how electronic documents should be discovered, and to be fair they do not pretend to do so.

We also know that when Caselines was first introduced (prior to Court online) it was, bluntly, a disaster, and I am not going into all of the reasons why. Since then, Caselines has been acquired by Thomson Reuters, a vast improvement, and the data is stored in the cloud via MS Azure. It is not clear to me where it is stored, as this came about prior to MS Azure being available here in SA, but there may have been a migration. Anyway, one would hope that our DoJ would have satisfied itself as Data Protection.

There are more and more lawyers in South Africa using eDiscovery technology on a weekly, even daily, basis. I have experience of lawyers properly advising their clients of the benefits of the technology and for sure more service providers are being consulted regularly.

This is truly inspiring after years of hard work, encouragement and education. There is no doubt in my mind that having RelativityOne hosted here in SA has been an influencer. It settles clients and lawyers minds and avoids any conversations about Data Protection and Privacy where the data is not hosted here. POPIA, generally follows GDPR and is usually happy if the data is hosted in a GDPR area, but this does not mean that the client is always happy! Think about major financial institutions holding huge amounts of sensitive and private information about their corporate and private clients. I know of instances, where, irrespective of compliance with GDPR, they are much more comfortable knowing the data is hosted here in SA. My point is that this hosting aspect has boosted lawyers confidence in talking about eDiscovery with their clients.

Something came across my desktop recently which made me smile. The question was “What are the fastest things on earth”? Answers – cheetah, aeroplane, speed of light? Nope, it is people becoming experts on AI.

Now, I do not profess, for one minute, to be an expert on AI but I know enough to be able to comment and to refer you to some of what is happening today with AI generally and with regard to eDiscovery.

My starting point is that I am a staunch supporter of using technology to aid lawyers, save time and money for their clients. I have the privilege of having met and spoken with Professor Richard Susskind many years ago in London, when I wrote an article for the Society for Computers and Law. For almost 20 years he has been writing books on using technology in law and how lawyers need to change  - some examples are “The End of Lawyers”, “Tomorrows Lawyers”, The Future of Professions. How Technology will transform the work of human experts”. I strongly recommend any of his books. The point is that he has been talking about this for two decades!

Meta (owners of Facebook, Instagram and WhatsApp) have been fined 1.3 billion USD for their latest data privacy violation bringing their total fines to approx. 2bn USD in less than a year. They have been ordered to cease sending data from Europe to the USA.

I was alerted to this by my good friend Doug Austin in one of his recent blog posts which I recommend you to read.

It brought to me think about where we are in SA having POPIA. I am so happy that SA has Data Privacy and Protection legislation which is at least the equivalent of GDPR. At last, I am seeing people respect its existence and value. In eDiscovery I have been preaching for years that you must know where your data is being hosted. It astonishes me that I am aware of some quality SA law firms happily sanctioning their clients’ data being hosted, for example, in the USA in States that have no data protection. The flip side is that I am seeing more and more, SA law firms and corporations, asking the right questions and recognising the issue, even insisting on SA hosting, if possible or a jurisdiction which enjoys protection at least as good as GDPR.

I am hearing from all over the country about what appears to be an ever increasing problem in the delay of payment of professional fees or, worse, people expecting services for free.

Is it the state of South Africa’s economy that is causing this problem, bad management or deliberate actions? Probably a combination of all three, but whatever the reason, it is not acceptable. When I was in the UK I saw similar problems, although the Government did take some action by guaranteeing prompt payment from all government departments. Can you imagine that happening here when it is the government departments and entities that are more guilty than most?

All businesses need payments from clients to sustain, grow or protect the business and of course, it is often SME’s that suffer most. There is an old saying in the legal world that a good client is one who pays and of course that is a truism.

Those of us in the global eDiscovery industry seem to talk every year about the fact that, generally, lawyers are still not getting to grips with the use and value of technology and how to speak authoritatively with their clients about it. Here in SA this position is exactly the same and I hear of instances where lawyers insist on dealing with aspects of discovery or production in their traditional way rather than the correct way in terms of eDiscovery.

Then there is AI. Everyone is talking about it every day. I smile sometimes because eDiscovery technology has been using AI long before the acronym existed! So many law firms are using AI for a variety of matters, contentious and non-contentious. Does this mean, therefore, that lawyers are more “tecchie”? Afraid not, because simply having AI employed in a matter is only part of the story. It needs to be understood because, if not, how can you verify what it has done? How can you tell it what you want it do? There is a question, therefore, is AI solving problems or is it adding to the problem that lawyers are still not really understanding technology? There is a stunning article here with views and comments from some people I know and who are so well respected. I strongly recommend you to read it