eDiscovery in SA - Uniform Rules and Sections 14 & 15 ECTA 2002 are hopelessly out of date

When commenting on one of my latest updates, one of my longest standing industry friends, Jonathan Maas, wrote in his regular blog recently “….South Africa will be one of the last common law jurisdictions to begin developing legal procedure and jurisprudence in relation to eDiscovery….”. 

Sad state of affairs but very true and all of my readers know how much effort I have put into this over the last 3 years or more. I hope to have more news before the end of the year as I am the eternal optimist, but meanwhile I want to take another look at how discovery and/or eDiscovery is currently being handled in SA.

Straight off the bat I can say absolutely that it is my belief that documents are being missed here and global statistics substantiate that. By that I mean that some documents in a case are not even collected never mind viewed. Even if all documents are being collected, and reviewed other than by eDiscovery technology, then time is being wasted and the clients are being overcharged as attorneys are reviewing documents which they do not need to see. Worse, many attorneys and law firms in SA (including some “big guns”), do not believe that SA needs to amend it’s Uniform Rules to incorporate eDiscovery as they feel that electronic documents are adequately catered for in the current Rules along with the ECTA 2002. Some strong statements here so let me expand and justify.

Firstly, dealing with business documents, it is well established globally, that over 97% of all business documents are now created electronically and that more than 30% of those never see paper. Therefore, if we are only working with paper documents it follows that we are bound to be missing some. One SA lawyer told me once that they only had small cases with a few binders of documents and I asked to see an example. He showed me a box containing binders and when I looked at the contents, I saw a large number of printed emails. I could immediately see that there were no attachments so it was obvious that either the client had simply printed what he believed to be relevant emails or the lawyers had printed them from a hard drive. There are a number of reasons why printing emails is inherently dangerous and just one of them is that attachments are often missed, as was the case here. There are other very compelling reasons not to print and I spend quite some time on this important issue in my eDiscovery presentation. The problems can go deeper in that if the lawyers were relying solely upon these printed documents how could they possibly know if these were the only documents that needed to be collected? Without going into too much detail there should be a forensic collection or, at the very least, a targeted  defensible collection by a competent IT person or team within the client’s business. If not how can the lawyers satisfy their discovery duties as far as “making a reasonable search” is concerned? It is all very well having the clients swear the discovery affidavit but really????

Secondly, let us assume that the lawyers receive electronic documents, perhaps a hard drive, from their clients. Aside from the collection problems stated above, how are these being reviewed without eDiscovery technology? Some simply open them and scroll (believe me, they do!), whilst others will use tools such as Outlook , Adobe or Dropbox. Fine, but the searching capabilities are not exactly refined nor are they totally reliable and there are no other analytics features as are evident in eDiscovery technology. The outcome here is that the lawyers spend time (for which they bill!) looking at completely irrelevant or outdated documents that have no bearing on the case and there is still a significant risk of documents being missed. As a direct result of the fact that very few corporate clients in SA know any better, the lawyers get away with this, insisting that their duty is to review every document. Try that in the UK, USA or almost anywhere else in the world and the corporate clients will put a stop to it immediately. I often say that it is " global corporation dot com" that has driven the kind of efficiencies and improved eDiscovery technology that is available today.  

Now let us look at the current rules and law in SA. As mentioned, some lawyers feel that ss 14 &15 of the ECTA underpin the Uniform Rules to sufficiently include electronic documents and therefore we do not need to amend them. I, and many others take the opposite view. Allow me to explain using a real life example relating to a mater in which I was involved many years ago in the UK. Part of the case revolved around a series of Minutes of Board Meetings all of which had been produced in hard copy format. One eagle-eyed lawyer spotted something wrong in one set of these Minutes wherein they stated that a particular person was not present at the meeting when in fact he was. The truth was that the Minutes (a Word document) had been altered by inserting the word “not” and then all of the Minutes had been printed and stored in binders. We were able to trace the original electronic version and could prove from the metadata that the document had been modified as well as see the version that existed prior to modification. I use this story to lend weight to my argument that electric documents are more evidentially reliable than their paper counterparts. If the paper version of the Minutes was the only one produced it would have been false and without eDiscovery technology the original electronic version would not have been seen and more importantly, the changes that were made to the document would not have been found. Ah, wait a minute, I hear some of you say, that is precisely why  ss 14 and 15 ECTA exist, to verify the integrity of the original data message because electronic documents can be altered. So how do you deal with it? Having discovered the discrepancy, you then use forensics, followed by ediscovery technology followed by an application to Court, no doubt instructing Counsel, and trot along to the Court to produce the evidence. Thereafter you pat yourself on the back, tell the client how wonderful you are and send him a hefty bill. The truth, of course and the manner in which this matter would have been dealt with in a jurisdiction which makes the discovery of electronic documents mandatory is that an eDiscovery Consultant, or competent service provider or tecchie savvy lawyer would not have relied upon the paper versions of Word documents in the first place. The original electronic documents would have been used and the technology would have shown the truth using the wonderful metadata which forms part of the document in such jurisdictions, and there would have been no need for the additional time and expense of verification. It is the integrity of the paper version that needed to be investigated and authenticated rather than the electronic original. That is why the current situation with the Uniform Rules and ECTA is so out of date and until it is changed there will be missed documents, incorrect documents and unnecessary expense to clients. 

I repeat what I have said many times that, especially in this modern age when virtually all of business documentation is electronic at source, lawyers must be aware of eDiscovery technology and engaging a Consultant, followed by a competent service provider, will save valuable time and the clients money. It also happens to be right

Terry Harrison

ediscovery@terryharrison.co

+27(0)748347818