It is a little while since my last post because I have been very busy on eDiscovery matters here in SA which is absolutely gratifying. A number of people contacted me since that post about what every lawyer should know about eDiscovery - and the accumulated view is that many lawyers in SA are realising how little they do know in comparison with their peers in other jurisdictions. That is fine because, as I have said many times before, they have not had the exposure, education and information in the past. I am humbled to say that so many people thanked me for bringing this and all eDiscovery matters to their attention over the last 2 years or more. I was even more humbled when some people from SA and one from Zimbabwe nominated me as one of the top 10 eDiscovery influencers on LinkedIn for my work in SA. Of course I am not in the Top 10 globally or anywhere near, and even after close to 20 years in this industry I am still in awe of so many people within. However, it is so nice to be seen as an influencer here and the wider Africa, as I continue to strive to bring eDiscovery best practices to this Continent.
Let me tell you a little of what I have been doing since I last wrote and then round up the year and take a peek at 2018. A few weeks ago, I met someone from a local company and after we had spoken about eDiscovery here, they told me that they had met or spoken with a few people involved in eDiscovery outside SA and now me, and all of us had one thing in common, which was that we are passionate about eDiscovery. They wanted to know what it is it that makes us all so passionate. I am not sure I have ever been asked that question before but I thought about it and first of all it is so true as so many people I know across the world are passionate about the subject. I cannot speak for others but my answer is, and this is not a glib response, “because it is right”. What I mean by that is that I have an innate sense of justice and the thought of justice not being served because cases are handled incorrectly does not sit well with me. I have said many, many times since I have been here that this is not a criticism of lawyers per se, it is more about aligning with the 21st century and accepting change. You cannot ignore the proliferation of electronic communications - we are all surrounded by them day in and day out - more than 97% of all business communications are electronic and over 30% of those never see paper. That being so, unless electronic data is properly sourced, collected, investigated and reviewed then for certain, documents will be missed. I know this is happening in SA since I have been here. Taken to logical conclusions, if documents are being missed they are not being discovered and if they are not being discovered it is not fantasy to say that it is possible that incorrect Court decisions are being made or settlements secured without all of the facts. I could give so many examples but I would be repeating much of what I have said in previous posts. My questioner was happy to accept therefore that the passionate aspect in this industry revolves around the moral aspect of doing it right!
Almost to compound my views on what is happening here I was contacted by an international law firm from their base in the UK requesting my help and advice with SA service providers being able to perform a potentially tricky forensic collection and investigation of data residing here. I was happy to make my recommendations and my UK source tells me that part of the operation has been successfully completed with the next part coming later. Whilst of course I was happy to lend my advice and assistance, what is sad is that the data will then be shipped to the UK for further processing and review. This is certainly not the first time I have been involved in such a matter and it is a further example of the drain of data leaving this country to be worked upon elsewhere. It will not stop until POPIA is implemented and it will not stop until we can prove that we have the skills and discovery rules to embrace and understand eDiscovery. Conversely, I was then contacted by a very longstanding contact of mine in USA asking my advice in relation to hard copy processing in an eDiscovery matter involving some fragile documents which were located in Paris, France! I was delighted to recommend my old UK company.
Another trip to JHB last month produced more extremely interesting conversations including the possibility of introducing eDiscovery to Arbitrations here, the possibility of forming an association of those in SA involved in Litigation Support, as well as update meetings with a couple of service providers and law firms. The growing theme is that more and more people wish to speak to me about eDiscovery which is so rewarding given the amount of time that I have spent upon it in the last 2 years. Then I was thrilled to be invited to Exigent in Cape Town - on 1 December which was the global eDiscovery Day. I shared eDiscovery experiences with them, told them of my career highlights and thoughts for 2018. I also participated in an excellent eDiscovery quiz they had prepared when I was asked to captain one of the teams. My embarrassment was complete when my team lost because of one answer for which I accept full responsibility (although in true legal form, I reserve my rights in connection with my answer!).
Without doubt, the best thing that has happened is that I have been engaged to work as the eDiscovery Consultant on the best case in which I have been involved since I moved to SA. You know that I can give no details about either the case, the parties or my instructing law firm but I can tell you why I have been instructed, in general terms. It is a complicated case involving no less than 3 SA High Court actions with a combination of forensics, hard copy documents and of course electronic data. There is a further component in that the actions are linked to quite separate proceedings in the UK which are being handled by UK law firms and service providers. They are following the UK eDiscovery Rules and part of my role surrounds my knowledge of those rules, UK best practices, and my knowledge of the players involved in the UK. It is far sighted, and (coming back to my reason for being passionate about eDiscovery) right, that the law firm and Counsel involved here are anxious to ensure that eDiscovery best practices are followed in all of these matters. Therefore, I have been and am happy to continue being involved in advising upon communications with the other sides; advising on technology techniques; strategies; and the appointment of and working with SA service providers. The attitude and acceptance of eDiscovery by the Attorneys and Counsel in this matter is as rewarding to me as anything that has happened since I came.
Now, I know that you want me to give you an update on my initiative to have the Rules of Discovery in SA amended to incorporate eDiscovery and I sincerely wish that I could. The truth is that since I presented to the High Court Committee of the Rules Board in January of this year and supplied them with a large amount of requested documentation thereafter, I have heard nothing despite a request for an update. I am aware that it is a long process involving obtaining the views of a lot of people and bodies and I accept that totally, but I really wish I had more to tell you on this subject which is so, so important to me. That said, I am a positive person and my message is that whether the Rules are changed or not, eDiscovery is here right now in SA. There are more and more law firms using the technology than there were when I arrived here in 2014 and that is a wonderful thing. Embrace it because it is right!
As we come to the end of this year and approach the holiday season it is always good to look back and forward at the same time. For me, and eDiscovery in SA, it has been an excellent year. I have met so many people and spoken until I was hoarse about eDiscovery in SA, enjoying every minute. The year ends on a high for me with this very interesting and important engagement and for sure I will not be taking a long break that seems to be a feature of life in SA! As to 2018 I can positively say that I am sure there will be more SA law firms and their clients embracing eDiscovery. I would dearly love 2018 to be the year that SA amends its Rules so that we have, at the very least, “entry level” eDiscovery as mandatory. Outside of SA there is big eDiscovery news from the UK wherein a Working Group is amending the rules of discovery (disclosure in the UK) once again. I won’t go into the details here save to say that it is to be done by a pilot scheme in certain Courts in 2018. Most importantly there will be an even greater emphasis on proportionality, collaboration and the use of eDiscovery techniques. I see a much increased use of technology assisted review as an immediate consequence. This will take SA even farther away from UK rules so we really do need to move.
It leaves me only to say, as this is likely to be my last post of 2017 unless something big happens, a sincere thank you to all who bother to read my stuff, and for your comments and support. Have a great holiday and lets look forward to 2018!