Bringing advancing technology in litigation – time to explore electronic discovery

July 1st, 2018

By Terry Harrison

What exactly is Electronic Discovery (eDiscovery)? Why do we need it? Why should South Africa (SA) change its rules to incorporate it into the legal system? The definitive answer to the first question is that eDiscovery is the collection, processing and review of documents, which are stored in an electronic format. When this definition is mentioned to some legal practitioners in SA, the response is that these documents are printed, so why all the fuss? Statistics indicate that well over 90% of all business communications and documentation are now electronic and, importantly, more than 35% of these documents never ‘see’ paper. It is not just e-mails, but their attachments and other company documents, which have to be considered, including other forms of communication, such as SMS, as well as types of social media. There are decided cases in various parts of the world confirming that these are ‘discoverable’.

I am often told that in SA e-mails are printed, to which my response is that this action has potential risk, not to mention the inefficiency and costs involved. If you print e-mails from someone’s inbox and outbox you will not print any e-mails that have been deleted and as a legal practitioner, you will know the potential importance of deleted e-mails and other documents. Furthermore, when printing e-mails any blind carbon copy will not appear. Again, as a reviewing legal practitioner, you will not know of a particular recipient of that communication, which may be crucial to the knowledge of the matter you are working on.

These are just some examples of the perils of printing electronic documents, but a more compelling example is that electronic documents are more evidentially reliable than printed formats. The reason for that is largely because, when capturing electronic documents in their native format, the metadata of that document is also captured. Metadata comprises the properties of each document, which is created electronically and it can inform the user who created the document, when it was created or subsequently modified, who were included as recipients and much more. In the countries where eDiscovery has been adopted, as part of the rules of civil procedure, the metadata is stored as a part of the document and is discovered along with the document itself. An example – on the subject of evidential reliability – can be used from an instance where a number of printed sets of board minutes were the subject of the review. At one particular meeting it was said that a specific person was not present. However, these documents were originally electronic documents and on examination of the original, metadata showed that the document had been altered by the insertion of the word ‘not’ when dealing with those present. Therefore, the printed document said a person was not at the meeting, but in fact, that person was present and only the original electronic document along with the metadata verified this. Clearly the electronic version was more reliable than the paper version.

The difficulty with the Uniform Rules of Court along with s 15 of the Electronic Communications and Transactions Act 25 of 2002 is that the legislation does not go far enough where electronic documents are concerned. There is provision to discover electronic documents, but only by a certificate, presumably of authenticity. The truth is the opposite, whereby if the original document was electronic, but only a paper version is discovered, it is that version – in my view – that should require a certificate of authenticity. The Rules need to be amended so that eDiscovery becomes mandatory, as is the case elsewhere in the world and there is currently an initiative, which has been under consideration by the Rules Board, for some time now. The proposed amendments would only apply to High Court cases so that there are financial limits based on the ‘value’ of the case, as is the case in other jurisdictions. Implementation of amended rules is a practicality to be dealt with, rather than an objection to change. It is covered quite easily by guidelines produced by people who understand and know the procedures (eg, the Law Society of South Africa) and in many countries procedural implementations are covered by practice directives.

The proliferation of electronic data over the past 20 years has been immense and eDiscovery has simply moved with the times. eDiscovery does not change the basic ‘law’ of discovery, which is about making a reasonable search for documents that are or have been in the possession or control of the party, but the question here is, is SA making a reasonable search if it is not dealing with electric documents properly?

All of the jurisdictions that have embraced eDiscovery into their civil procedure rules have successfully moved over to the system, so there is no reason to believe that SA would not be able to do the same. Some law firms in SA are dealing with electronic documents successfully, but the frustration comes when the law firm wishes to electronically discover, along with metadata, but the other law firm only has paper or original electronic documents, which have been converted to PDF’s. It is messy at best and potentially very dangerous and the only real remedy is to enforce a level playing field.

One of the objections, used also in other international jurisdictions before eDiscovery was adopted, was one of cost and the misconception that eDiscovery brings higher costs. It is accepted globally that the use of eDiscovery technology will reduce the cost of litigation cases by at least 30%. Other statistics show that the greatest cost of a case is the legal practitioner’s review, which accounts for approximately 70% of the total. Furthermore, the use of filtering technology is encouraged, if not demanded by knowledgeable client corporations as they refuse to pay their legal practitioners for reading irrelevant documents when there are means available to avoid unnecessary costs.

South Africa is already experiencing a ‘drain’ of data in global cases whereby lawyers and providers from other jurisdictions have to arrange to collect data from SA and then ship it back to their own country for processing, hosting and reviewing. In other words, SA is losing valuable business, which extends to arbitrations and other forms of alternative dispute resolution, as they often follow the High Court Rules. South Africa cannot be a true international center for dispute resolution until eDiscovery is adopted and incorporated into the Uniform Rules, as well as other forms of dispute resolution.

Terry Harrison is an independent international eDiscovery consultant in Cape Town.

This article was first published in De Rebus in 2018 (July) DR 22.