As I mentioned in my last post, I am in the midst of writing a complex post on the use of eDiscovery technology in investigations, which is highly pertinent to SA, but I keep breaking off as other matters cross my desktop that make my brain work! It is a wonderful consequence and disruption caused by being part of a global eDiscovery community. This time, I was alerted to a blog by my buddy in the USA, Doug Austin whilst writing with Ipro (another of my favourite contact companies in the US) looking at eDiscovery in the Asia Pacific region

Doug begins by saying that obviously in the US and in many other places eDiscovery practices and requirements are US centric. However, there is a bigger picture especially when one considers the effects of globalisation where corporations have offices, manufacturing, research and development centres etc. in other parts of the world. Clearly, as I have alluded to in the past, this means that you must consider the rules and practices in other jurisdictions.

I am in the midst of writing a complex article on the use of eDiscovery technology in investigations in SA but have taken a break from it as a couple of recent blogs from my friend in New Zealand, Andrew King on the necessity for having eDiscovery champions, have strongly resonated with me.

Andrew begins by making the point that the proliferation of electronic data has changed discovery beyond recognition. Years ago, the logistics of discovery were often delegated to junior members of staff who dealt with the collating and copying of paper documents etc. This may still be the case in many law firms and companies in South Africa but not so much in other jurisdictions, where virtually every case involves electronic documents. That said, the volume of data in investigations in South Africa is enormous and the whole process of discovery and finding and/or eliminating documents is a huge and costly burden.

Following my recent post I have been encouraged to expand on my mantra “Know your data Know your case” with some practical examples.

One way and another I have been involved in litigation cases for around 40 years, the first 20 working in law firms and specialising in litigation, and the last 20 being involved in eDiscovery. I have seen enough, both positive and negative, to categorically support my mantra.

In the “old days” before the electronic revolution, we would gather documents from filing cabinets, basements, storage warehouses etc. and start ploughing through them. We would be armed with initial instructions from the client giving a basic introduction as to what the case was about and we would go back to the client, once we had trawled through the documents, with specific “finds” we would ask more involved questions and take further detailed instructions. Then, along came electronic documents, emails, word docs, spreadsheets PowerPoints etc. and we were all deluged. Worse, the clients could not know everything that these documents (data) contained let alone the significance of them, or some of them, to the case in hand. Therefore, for the first few years of eDiscovery technology, we collected and processed everything, sorted by date and custodian, made a few searches and together with the lawyers, thought we were the “bee’s knees”. The problem was that no one told the clients how much this was all going to cost, and so “global corporation.com” eventually said “enough is enough”. They demanded more and better technology aimed at finding and filtering data. They demanded their external lawyers used every bit of technology possible and refused to pay high hourly rates for reviewing irrelevant documents. Thankfully, then along came ECA as I explained in some detail in my previous post.

For years now, those of us involved in eDiscovery have mused over Early Case Assessment or Early Data Assessment and for many of those years I was in the camp of the latter. I say that because I always felt that a lawyer should work on various aspects of assessing his case strategy and not just data. However, with increasing volumes of data and ever improving technology I have switched camps! Let me highlight some of the reasons.

Firstly, I often preach “Know your data, know your case” and I stand by that mantra unreservedly. Here in SA, Rule 41 of the Uniform Rules makes it mandatory to consider mediation from the outset. I contend that you cannot possibly do that without knowing a great deal about your case as early as possible. If there is any prospect of settling, then you should do so from a position of strength rather than weakness and you can only do that by having some early knowledge about what the data in your case contains.

Firstly, a very happy, safe and healthy new year to everyone. SA seems to be coping better than anticipated with Omicron and maybe we will move closer to a normal life this year.

Meanwhile, SA is suffering so badly with increased poverty, unemployment, crime (including arson on our Parliament building) and corruption. The last of these is huge news with the first part of the Zondo Commission on State Capture report being released. You do not have to read all of the near 900 pages to see immediately that identifiable investigations and prosecutions MUST ensue. It is what we all thought, but to see confirmation and evidence already available, is compelling. The big questions now for the sake of this country is will we see in depth investigations proceeding with a view to prosecutions and will it happen this year? My view is that it must. Our people need and deserve to see some action as they have suffered most from the billions of Rand that has been embezzled, misappropriated or misused over the years. The rest of the world needs to see action or we will have no credibility, confidence or investment. What about the position of our current President? He was deputy President through a period in which we now see evidence of corruption and he was a senior member of the party that has run the country for more than 25 years throughout which this corruption relating to SOE’s, has occurred. At the very least, he is guilty of turning a blind eye and my prediction here is that 2022 will see more revelations which may well make his position untenable. Let us talk about the practicalities of what happens next and the contribution of eDiscovery technology and specialists. As I have mentioned in previous posts, we know from global industry gossip that eDiscovery technology has been and is being utilised in these investigations. We know, largely from comments in, for example, the Daily Maverick, that the NPA are continuing the use of the technology and some of the people who worked on the investigations for the Zondo Commission. We also know that Hermione Cronje, Head of the Investigation Directorate resigned her position recently and that Shamila Bahoti, National Director of Public Prosecutions insists that this does not mean the NPA is in crisis. Crisis or not we have to see forward and positive movement this year and without a shadow of doubt this will mean greater use of eDiscovery technology and specialist technical people being employed. We know there are literally millions of electronic documents, and technology is the only answer. We know that the NPA has access to best of breed eDiscovery technology. Let us make sure that funds are available to continue this work and investigate and prosecute the wrongdoers. For what it is worth I have made it clear that if my strategic help and experience is needed, they only have to ask. So, in summary, my optimistic prediction here is that 2022 will see positive action on this topic and eDiscovery technology and skills in SA will play a major role.

I am motivated to write this post in my blog, by Kelly Twigger of eDiscovery Assistant and ESI Attorneys in Colorado USA. She is someone I have never met but know of, through so many others, and I always try to read her posts and comments. Her latest blog refers to the five things that she and her colleagues at eDiscovery Assistant are grateful for and it so resonated with me that I wanted to write something similar for my SA contacts without plagiarising Kelly’s work and ensuring that I credited her for it! So, as we move towards the close of perhaps the strangest year ever, here are four things for which I am grateful as far as eDiscovery is concerned.

As we approach the end of 2021 I look back on the year at the ups and downs of being SA’s only independent eDiscovery Consultant and eDiscovery in SA in general. It almost goes without saying that the proudest moment and highlight was having my book “A guide to eDiscovery in South Africa” published by Lexis Nexis . The support of Adv Ismail Hussain SC, who contributed a chapter on Court Case Management as well as a whole lot of advice, and then having the foreword written by no less than Judge J Kollapen still leaves me in awe. The launch of the book (with Judge Kollapen providing the keynote address) and my subsequent speaking events and appearance on SA national TV have all provided great personal highlights this year.

Seeing the use of eDiscovery technology continue to grow at a pace is very rewarding and having the global market leader RelativityOne now being hosted in SA excites me enormously. Knowing that the South African Law Reform Commission support the principle of amending the Uniform Rules to incorporate eDiscovery, and being quoted by them, is also rewarding and humbling.

Quite apart from my own knowledge of cases here in SA I am hearing from others of increased activity in our country so a huge congrats from me to all those involved in using and hosting eDiscovery technology in SA! One of my longstanding global eDiscovery contacts contacted me recently to say that he was aware of more activity in the last 9 months or so in SA than ever before. He is Steve Couling, MD and VP of Sales, EMEA at Relativity. For those who do not know, Relativity is the global market leader of eDiscovery technology solutions and their superb solution Relativity One is well and truly making a mark in SA. Steve wanted my advice and thoughts on how things were developing in SA as he continues to look at emerging markets in his region. I can tell you that there is a huge amount of data in SA currently hosted in Relativity (and other solutions) which is extremely gratifying. Litigation cases, arbitrations, investigations and enquires such as the Zondo commission as well as criminal investigations are all making more use of eDiscovery technology than at any time and there are literally millions and millions of electronic documents in SA currently in use.