Last week I had the real pleasure of moderating the best to date webinar on eDiscovery in SA. Managing to get together the panelists at the same time had been challenging but what a thoroughly insightful panel they proved to be. Gavin Fitzmaurice, Managing Partner of the Cape Town office of Webber Wentzel and renowned maritime litigation specialist; Lucas Chiloane Head of cyber security, forensics and eDiscovery at the Absa Group; and Waseema Harrison owner of Harrisons eDiscovery Consulting Ltd and SA’s most experienced eDiscovery technologist, made up the panel. Sadly, we would have also been joined by Adv Ismail Hussain SC but he fell ill the night before the webinar was due. What a panel! All, in their own way true pioneers and advocates of eDiscovery in SA, proven by them sharing their experiences of how it affects their working lives.
Gavin set the scene when he outlined in some detail his experience of using eDiscovery technology in a large and serious maritime case involving an incident in Richards Bay. He and his team and service providers narrowed down 9 million electronic documents to 137,668, using various features of the technology. Then, more focused eDiscovery technology helped Gavin’s team ultimately reduce the discoverable documents to just 1500. Gavin explained that without using technology this would have been impossible and the alternative of reviewing every single document was unthinkable.
This story was followed by Waseema outlining an interesting Cape Town matter in which she was involved. It involved a case in which there were some doubts as to how the other side’s data had been collected and interrogated and the Judge made an order for Waseema’s clients to re-examine the data (in our industry, we call this discovery about discovery) but would not allow an extension of time in order to do so. There were 456,649 documents and the client had just 4 reviewers and only 5 working days to review. Using the technology and her experience, and working with the reviewers, the body of documents was reduced to just 315 relevant ones and within the time period.
Attention was then turned to how Lucas and his team at Absa use eDiscovery technology to add value and increases efficiencies in their discovery and investigation procedures. Emphasising the importance of maintaining chain of custody, proper collections and auditable filtering techniques, Lucas fascinated all of us with the attention to detail using eDiscovery technology to look after Absa’s matters.
Next we moved into the effect of eDiscovery as far as the Courts and judiciary is concerned, with particular regard to Case Management Conferences. Gavin used his experience here and it became clear that although we may not have eDiscovery in our rules there is a greater understanding as to what is happening given that so many cases have huge volumes of data. Furthermore, he indicated that proportionality and collaboration (which are significant, and in some part mandatory in other parts of the world) are playing a greater role than in the past in SA. Specific deadlines are set and must be adhered to, so it is clear that using technology is essential.
Waseema and Lucas then gave insightful thoughts on the practice of using the technology for Early Case Assessment techniques and Gavin agreed that it was invaluable for lawyers to be able to see, at an early stage, what they have, who is involved, a key date range and key custodians etc. This was followed by Lucas speaking on a workable model of information governance when obtaining and preserving electronic documentation.
I rounded off the panel session by asking each of them for a one line answer to the question, “Isn’t it about time SA had the rules amended to incorporate eDiscovery”? Needless to say they all agreed that it was essential with differing reasons in line with their work.
Before closing the webinar, we managed to answer a number of quite excellent questions posed by the listening audience.
This was a truly great webinar and for sure the first of its kind in South Africa. No lecturing from people like me about what eDiscovery is about – this was absolutely nailed on how real people working in SA use eDiscovery technology in their normal working lives. So, I no longer want to hear that SA is not ready and does not use or need eDiscovery – these pioneering experts disprove those notions. I am so grateful that they gave their time to tell us their stories and in such an understandable way. For me this was a landmark day in my eDiscovery quest for South Africa.