Oh my goodness! I have just read the best practical article I have ever read on what every lawyer should know about eDiscovery, written by Craig Ball, a trial lawyer, and one of the most respected and knowledgable authorities on electronic evidence in our industry. You can read the article here - which I recommend to you unreservedly.
It serves as my inspiration for this post as I endeavour to capture its salient points specifically for SA lawyers. The article itself refers to lawyers everywhere but ours in SA are in a different position to those, for example in USA, UK, Australia, Canada, Ireland, New Zealand, Hong Kong etc. I say that, not because lawyers in those locations are better than ours but because they have had greater exposure and experience in eDiscovery and because all of those jurisdictions, and others, have eDiscovery incorporated into their rules of civil procedure, whist at the moment we do not. However, whether we have rules or not covering how to deal with electronic evidence properly, SA lawyers have exactly the same discovery obligations as those in other jurisdictions. We know that a reasonable search must be made for all documents which or have been in the possession or control of the party and, even if they are adverse, disclose them to the other side. That is incontrovertible and SA lawyers know it and some, but not all, actually do it! The rest think they are doing it but sadly they are not. I say this because without knowledge of eDiscovery I know that documents here are being missed and in some instances not even found. I was a panellist at a law firm event in Johannesburg a little while ago and at the end the facilitator asked each of us for a one line message to the audience. Mine was, “Don’t wait for the discovery rules to change because eDiscovery is here right now, embrace it.”
So, I will select aspects from Craig Ball’s article and, hopefully point SA lawyers in the right direction. He begins, “We have entered into the golden age of evidence, ushered in by the monumental growth of data…”. He is of course referring to what we call electronically stored information (ESI) whereby communications and documents are accessed by digital devices rather than by typewriters or pen and paper. The article continues that “..Never in the course of human history have we had so much probative evidence, and never has that evidence been so objective and precise...”. In my seminars I speak passionately about the higher evidential value of electronic documents over paper ones, giving a number of real life examples and in particular the fact that we capture the all important metadata of these documents which tells us who knew what when. In the geographical locations mentioned above some lawyers groan about today’s data partly because of the sheer volume but also “..because they haven’t awoken to its value”. Here in SA some lawyers groan about it because they are not used to it; don’t understand it; don’t want to understand it because there are no rules saying that they must; and simply have not grasped the importance of what they are missing. Yet, in a sense it is not surprising because, generally, lawyers anywhere, do not receive practical instruction, as law schools or other institutions do not offer practical courses in electronic evidence, with some exceptions, for example in the UK. We do find that law graduates and young trainee lawyers possess some knowledge simply because they are effectively brought up in an IT world but where does that leave more experienced lawyers?
The article continues this theme, “As sources of digital evidence proliferate in the cloud, on mobile devices and tablets and within the burgeoning Internet of Things, the gap between competent and incompetent counsel grows…”. Craig points us to the exception that is the California Sate Bar and here is their take on what lawyers must know about eDiscovery.
This talks about a duty to assess one’s own competence within eDiscovery to provide proper representation to each client. It goes on to say that if that skill is lacking then it must be sought and/or there should be consultation with someone who has the expertise in order to assist (someone such as me!). It continues that attorneys should be able to perform, either by themselves or with expert consultants, the following (as this is so important I will not attempt to abbreviate):-
- Initially assess eDiscovery needs and issues, if any
- Implement/cause to implement appropriate ESI preservation procedures
- Analyse and understand a clients’ ESI systems and storage
- Advise the client on available options for collection and preservation of ESI
- Identify custodians of potentially relevant ESI
- Engage in competent and meaningful meet and confer (aka case management conference) with opposing counsel concerning an eDiscovery plan
- Perform data searches
- Collect responsive ESI in a manner that preserves the integrity of that ESI
- Produce responsive non-privileged ESI in a recognised and appropriate manner
I think this is sensational and as Craig Ball says, “...California lawyers face a simple mandate when it comes to eDiscovery…. Learn it, get help or get out.” How many SA lawyers can say, hand on heart, that they are competent in all, or any of the 10 points above? It is easy to say that some of these are IT matters and we can ask the IT guys but eDiscovery knowledge requires both technical and strategic skills which I would suggest, few SA lawyers have and that is not a criticism for all the reasons I stated earlier. Further they are not skills which IT would have - for sure IT people can help but they don’t deal with discovery and cannot be expected to have legal, tactical or strategic knowledge.
Legal hold is very strong in USA, much more so than elsewhere, including the UK, but preservation of data where litigation is anticipated is vital and necessary everywhere including SA. A lawyer must have some knowledge of the client’s software and hardware to be able to understand how to scope preservation and how to ensure that the client does not have data loss. You cannot do this without knowing what the data and its metadata is and where and how it resides. It is not sufficient simply to rely upon what the client tells you - you must have some knowledge to question, enquire and if necessary investigate what they tell you - or engage an expert to assist.
There are many ways of preserving data within an organisation and collecting data which is relevant to a case or anticipated case. However, does an SA lawyer know those methods or again is he simply relying upon what he is told by his clients without questioning?
Identifying the correct and most appropriate custodians in a case or potential case requires the right questions to be asked of the right people. How can you do that if you don’t understand how your clients systems work and is it sufficient simply to take what the client says as gospel without enquiring further or deeper? I say it is not and Craig Ball comments, “…Competence includes the ability to pose the right questions to the right people..”
Moving along the process, what level of competence is required by a lawyer with regard to conducting appropriate searches and analysis of data in a case? For sure it is a whole lot more than simply providing a list of search words and applying it to the collection within the eDiscovery technology database. You have to know the effects of making minor adjustments to the search terms e.g. by proximity searching or linking search terms etc. This is a subject on its own and I have written about it in the past. Now, I do not expect SA lawyers to have all of the knowledge available to do this but they should have a basic understanding of how data can be filtered and culled to be able to instruct experts to deal with it or at least seek expert help.
Then we come to the case management conference or meet and confer when the lawyers meet with the Judge to discuss the case. How can an SA lawyer pose the correct questions of the other side with regard to what data has been collected and what will be discovered if he does not understand the processes? Unless he is competent then he should take an expert with him to the meeting.
There are many ways of producing data for discovery and unless there are rules or guidelines which determine that (sadly not yet in SA) then this should be dealt with by a protocol in the early stages whereby one side informs the other as to precisely how they propose to discover and what they expect in return. Are SA lawyers competent to do this and does it happen? I know one firm does because I helped them with the protocol documents but what about the rest?
Back to the basic argument that the vast majority of todays business communications exist and are sourced electronically. Only a small part are genuine paper documents and even they are not, with some minor exceptions, being dealt with properly or expeditiously in SA. All over the world lawyers have been slow to keep pace with ever growing technology until they had to but here in SA the majority of lawyers are so far behind the rest as is blatantly evident by the lack of eDiscovery technology being used here. Craig Ball concludes his article by saying, “Is it fair to deem lawyers incompetent, even unethical, because they don’t possess skills they weren’t taught in law school? It may not feel fair to lawyers trained in a vanishing world of paper documents; but to the courts and clients ill-served by those old ways, its more than just fair - it’s right.” Here in SA I would go further. Until eDiscovery is in our uniform rules there will be no help nor pressure from the Courts and that leaves us with clients. I have seen this in the UK and USA and I predict it will happen here in SA. Corporate clients will tire of paying for unnecessary and “over” review when technology is available to have a marked effect. Worse, there will be a disaster when it is proven that a case has been lost because a document or documents which existed electronically were not discovered. Do we really have to wait for such a disaster to occur?
I conclude this post with my strong message to all lawyers in SA, attorneys, Advocates, in-house teams alike. Do not take this post as criticism because there has been so little exposure here to digital evidence which is not your fault, but do take it as a warning that you cannot stem the tide of data and far better to swim than sink. No one expects all SA lawyers to have the skills outlined by Craig Ball in his excellent article but everyone expects SA lawyers to know where and how to find those skills and to do so before the “disaster” strikes. One final thought provoking real example. There was a recent case in the UK when the Plaintiff was claiming damages for a leg injury in an accident - all looking good for him until the other side discovered that the problem was actually caused by a football injury. How did they find this out? He told the world on his Facebook account. Once again SA lawyers, I say to you, would you have discovered that?