I read with not a little interest some of the comments as to addressing state litigation challenges at the inauguration of the Intergovernmental National Litigation Forum (INLF) made by the President and the DoJ. Basically, our Courts are littered with actions by or against the government and the cost is mind boggling. The President said that the contingent liability for 2020/2021 was sitting at R147bn. He then said that the strategies were such that state litigation liability would be negligible in the future as “things would be done right”. Yeah right! Where is the evidence or indeed any signs of this? One way to improve the manner and cost of litigation is by following the recommendation by the South African Law Reform Commission by adopting eDiscovery within our Uniform Rules. Unfortunately, there is no sign of this happening that I am aware of. Furthermore, it is not a magic wand. Having eDiscovery in the rules will not, per se, reduce the costs of litigation. It will only do so if the resultant technology is used properly and that means a whole lot of education and more people within the industry who know what they are doing. Lawyers have to change their thinking, as do the judiciary, and we need more and better people working with service providers in SA. I have been preaching this, warning, encouraging, cajoling, speaking, writing and whatever else for years, so forgive me if I am sceptical about the comments made by the President and the DoJ as well as the INLF. Furthermore, don’t even start me on the final reports of the Zondo Commission – a topic for another post by itself.
Of course, this problem does not begin and end with litigation. It is also investigations, and SA is a country which is engulfed by investigations most of which contain enormous amounts of electronic data. I have said on many occasions that eDiscovery technology features across the world on matters other than litigation and the biggest example of all is investigations. The technology is the same as for litigation, but the skills required and the way the technology is used is different in many respects. It is absolutely crucial therefore to have advice and help from people who understand investigations and how to employ the technology to assist. The global market leader of technological solutions for litigation and investigations is Relativity with their incomparable product RelativityOne available here in South Africa. Relativity writes a regular blog, which I highly recommend, and there was one on this topic called A Modern Checklist for Modern Investigations.
The blog begins by providing evidence that regulatory investigations are climbing markedly but adds that other factors also attract investigations, including such matters as; IP theft; employment discrimination; violations of company policies; unauthorised access to restricted data and many others. They conducted a survey with worrying results in which almost 25% of GC’s surveyed said they were not confident about managing risk associated with an investigation. The blog post then provides a practical checklist based upon having the right tools and processes available to counter these worrying aspects. I am not going to repeat the check list here as you can read it for yourself, but it is excellent, incorporating the use of the appropriate technology, having a defensible collection policy, and utilising your team properly.
Using the right tools is paramount and beter if it is one solution rather than having bits done by one tool and others by another. Naturally their product RelativityOne is promoted but it really is excellent for this type of work as well as traditional litigation etc.
The proper collection of data is absolutely crucial. There is a balance to be struck between “over collecting” and under collecting as well as decisions to be made as to how to collect the data. The one to avoid, in my view, is self-collection and perhaps the most expedient and cost effective is the hybrid of a targeted collection with the IT team working with a forensic company linked with a remote collection where applicable e.g. if there is data that sits in Microsoft 365, then RelativityOne can remotely collect that data and integrate it into the solution seamlessly.
One thing that is clear from all of this is having the right help and advice as early as possible. You need to work with people who understand it and can take away some of your pain. If you are involved in a cross border matter then you should ensure that the system you are intending to use can adequately cope with what may be different operating platforms, systems and file systems. If BYOD is involved (see my post ) you need to be careful as you never know what system a custodian may be using at home let alone the issue of who owns the data on the device. You need to take careful note of Data Privacy laws in the countries in which your matter is involved and again take good quality advice at the outset.
As the title says, SA is heavily involved in investigations for numerous reasons and at times I feel there is a scattergun approach to how these are handled instead of a more precise, distinct strategic approach. eDiscovery technology and the right people at the right time can and will narrow the ammunition and focus on the target. SA would then be operating in exactly the same way as the rest of the world.