Terry Harrison
eDiscovery in SA – “Hello POPIA, eDiscovery ...

Well, we have waited since 2013 for POPIA to be implemented and now, from 1 July a number of sections are in force meaning that entities have until 1 July 2021 to be compliant.

For 5 years now I have been saying that POPIA and eDiscovery work hand in hand in a number of ways and it is unfortunate that we have had to wait so long for POPIA and of course are still waiting for eDiscovery to be incorporated into our Uniform Rules. However, they can work together now because eDiscovery technology is already here to right some wrongs and also protect the rights and privacy of individuals and entities. Let us take a peek at how this can happen.

eDiscovery
Terry Harrison
eDiscovery in SA - What every SA lawyer should ...

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

eDiscovery
Terry Harrison
eDiscovery in SA - Is SA the global centre for ...

What is needed to make SA the global centre for managed document review? Probably not that much I would suggest.

eDiscovery
Terry Harrison
eDiscovery Consultant Services in South Africa

It is always pleasing when one is asked to write an article on a particular topic but especially so for me, when 3 SA individual contacts and one SA law firm have specifically asked to me to write this one.

eDiscovery
Terry Harrison
eDiscovery in SA - Is Social Media relevant to ...

Social Media in terms of discovery for litigation, investigations, competition cases and, of course criminal investigations is a huge, huge topic - arguably one of the biggest in our industry at the moment.

eDiscovery in SA – Top global trends dominating eDiscovery in 2023

In its regular blog, global market leader, Relativity writes an excellent piece  on the top global trends in eDiscovery in 2023 and I recommend my SA contacts involved in this space to read it.

 In summary, the top 4 trends are:-

 1.    eDiscovery continues to incorporate AI into more parts of the process.

2.    Workflow automation consistently improves human practice

3.    ECA is truly transforming to EDA

4.    Cloud based technologies continue to accelerate and prove their value

 How can these global trends work in SA and help our lawyers and their corporate clients? It needs total “buy-in” from lawyers who want to be far sighted and not perform the “ostrich dance”. It needs corporates to understand how they can markedly reduce risk, time and cost. It needs our Rules Board and government to finally get moving and incorporate eDiscovery into the Uniform Rules.

eDiscovery in SA – how do SA lawyers prepare discovery affidavit schedules and the risks of not searching electronic documents properly?

Belated Happy New Year everyone, I am forecasting a very busy eDiscovery in SA year starting already, of course, with the fantastic news that RelativtyOne is now hosted via MS Azure in South Africa. RelativityOne is the global market leader in eDiscovery and investigations solutions and it is just wonderful that it is now hosted in our country, removing any data protection concerns for corporations and individuals. Watch this space for more news following this announcement in the coming weeks.

 

Speaking of discovery in SA I have recently come across a large number of instances where SA law firms are preparing schedules of documents for discovery in MS Word. There are complaints that it is a tedious process, takes time and therefore costs money! I can see why it is done this way in small cases or where all of the documents are in paper format. What I cannot understand is why is this process followed when the documents are electronic (as is the case more and more every day in SA). As far as I am aware, and I have checked as much as I can, there is no rule or practice directive in SA which states that the schedules must be in Word. It cannot be argued that under the new e - Court rules, Word is required, as Caselines accepts all of the usual electronic formats. The simple point is this, where a case is handled via eDiscovery technology, the solution (with a little input from an eDiscovery specialist), almost automatically produces the schedule along with the necessary fields of metadata (properties) pertaining to each discovered document. The format will MS Excel which can of course be converted to PDF and therefore all complies with the Caselines system.  The time saving and resultant costs are so significant that if I were a client I would refuse to pay for this process to be done via Word. Unless someone can show me a rule or practice directive that tells me I am wrong, my message is stop doing this important step in this manner – use technology – its quicker, less expensive, less risky and join the 21st century!

eDiscovery in SA – eDiscovery technology is not only for big cases

 

Sometimes a client needs to do something important in connection with a case which is going to take days and days of manual work to say nothing of the risk of individual mistakes. Harrisons eDiscovery Consulting Pty Limited was approached recently by a local Advocate client to solve just such a problem.

Our Advocate was pursuing a Sequestration order against a former client. He needed to isolate a number of emails and attachments from his laptop for discovery purposes. There were issues in that the emails existed in more than one place and were further complicated in that some were replicated by his secretary, and others were privileged. We advised that we needed to collect, then process, de-duplicate and filter in accordance with his date range. Then the resultant emails needed to be produced in chronological order and paginated along with a schedule in Excel.

We collected the data remotely, undertook all of the above resulting in 1499 documents amounting to 9891 pages, and delivered to him inside 2 days. Obviously, we used an eDiscovery solution for this work.

I mention this as it is a commonly held incorrect belief that you only need this technology when you have a large case to handle. It is all about saving time (and therefore cost), avoiding risk and allowing the technology to do the work.

eDiscovery in SA – “Santa Claus (RelativityOne) is coming to town”.

It is now open knowledge that the global market leading eDiscovery software, RelativityOne, will soon be hosted here in Cape Town, through its relationship with Microsoft Azure cloud hosting.

Being honest I knew about this some time ago as Relativity sought my views and thoughts on the SA market and as I have a very long association with Relativity I was more than happy to assist. The set up in SA was confirmed at the recent Relativity Fest in Chicago and already commented upon in LinkedIn by several people. My understanding is that it may even happen by the end of the year, but if not soon after.

In my 8 years of being here in SA and spreading the word regarding eDiscovery, this is by far the best and most important news to hit us. In the last year RelativityOne has found its way to new MS Azure data centres in UAE, Ireland, France, India and Japan and now here in South Africa. From a personal point of view, I am elated as it feels like a justification for all the effort. It proves the point I have been making regularly about the growth of eDiscovery in SA as Relativity would not make this huge investment without research and due diligence. So, what does it mean for SA, because we know that RelativityOne is available here in SA although hosted outside? Well, I will save some details for a specific later post but one very obvious point surrounds Data Protection and Privacy. How many times, over the years, have I said that eDiscovery and DP go hand in hand? Now, perhaps you see why. If data is hosted here in SA then our corporations and citizens would have no concerns on this important front. Think of our financial institutions, large corporations and SOE’s and their concerns over DP? Yes, in most cases it is OK if data is hosted in a country which has DP as good as or better than SA but there are often sensitivities even about that.

eDiscovery in SA – The link between eDiscovery and Compliance

I usually begin my eDiscovery presentations by saying that Discovery is a misnomer, because the technology works with matters other than the discovery process required in straightforward litigation cases. Arbitrations, competition, employment as well as regulatory and criminal investigations are all other matters in which we use eDiscovery technology, albeit in slightly different ways. This is one of the reasons to engage with experienced people who know what they are doing with this technology especially when it comes to some significant differences between, for example, litigation and investigations.

We live in an age where compliance is of paramount importance and often leads into other matters such as investigations, litigation etc. As such it is no great surprise that eDiscovery software providers market their products for compliance.

eDiscovery in SA – Two high profile cases highlight the dangers of failing to engage experts in eDiscovery

Well, no one likes to see lawyers and law firms in deep water over failing to act properly but sometimes it serves as a timely warning to others to take note and beware. Recently there have been two very high profile cases, one in the UK and one in the USA in which lawyers have been heavily criticised (and will have to pay the price) for errors in their handling of a case involving eDiscovery.

Let us take a quick look at the UK one first as I identify with that most, largely because I know the law firm involved and I also know my long standing friend, Martin Nikel, Head of eDiscovery at Kroll, who was called as an independent expert witness, and who was the first person to draw this one to my attention. The case is Cabo Concepts Ltd v MGA Entertainment, and the trial was due to commence on 27 June 2022 but shortly before the trial, MGA had to inform the court that it had missed thousands of documents in the collection process which affected the disclosure (discovery). It appears that some 800,000 documents were missed, that is never reviewed and that a number of warning signs were not heeded. Cabo had wanted independent supervision of the disclosure process but this was rejected by the case managing judge entirely on the basis of assurances from MGA that the process would be overseen by experts including their lawyers (Field Fisher and its document review provider company, Condor Alternative Legal Services). Most of the problems seem to surround the use (or misuse!) of Microsoft software, partly by attempting to use Outlook for search and collection and then the “misuse” of MS 365. One error I took particular notice of was that when filtering date range searches, the “creation date” was used instead of the sent or received dates. This is a glaring error for those who know about these things and the date hierarchy to which we all work. Overall the complaint against the law firm was in respect of lack of supervision and relying upon the client’s IT dept. Anyway, there is much more to it than this, but the end result was that MGA was ordered to pay almost 580,000 GBP (approx. R11.4m!) on account of wasted costs and the trial was adjourned until October 2024. Furthermore, of course the entire exercise has to be repeated and done properly so the cost implication for MGA and Field Fisher is horrendous. There was specific criticism of the law firm and the Partner in charge who had said they had insufficient experience and relied upon their client’s IT people.

eDiscovery in SA – It is alive and well according to this webinar!

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.

eDiscovery in SA – South Africa is crying out for modern and cost-effective solutions for litigation and investigations.

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.

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