The rise of electronic discovery

February 1st, 2012
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By Brendan Hughes

Since the turn of the millennium, anyone practising the art of written communication would have observed that fewer and fewer documents land in wooden in-trays on expansive wooden desks, while more and more are gathering in electronic ‘in-boxes’ viewed on widescreen electronic ‘desktops’.

Banks were among the first to spot the sea-change and not only quickly embraced the use of information technology but completely re-engineered their business practices to harness its full power and potential. Lawyers, as a species, generally adopt an ostrich approach to new technology, an approach that has until now been quite successful when viewed from behind the lens of protective professional regulation. But it is not only new competitors in the form of multi-disciplinary practices that will drive major changes in legal services, but the evolving expectations of clients themselves. Simply put, once customers have experienced a newer and better way of doing things, they no longer tolerate the older way. Witness the South African Post Office, which enjoys a regulated monopoly on the delivery of mail, but which has still been forced to adapt in order to survive – not because of competitors like private couriers, but because of its own customers who have embraced e-mail over ‘snail mail’. The post office now has plans to affirm its 21st century relevance and reaffirm its value to consumers by introducing secure electronic communications services, including the provision of registered e-mail in the near future as provided for in s 19(4) of the Electronic Communications and Transactions Act 25 of 2002 (ECTA)).

This example forces lawyers to contemplate not only what their competitors are doing, but also to what extent they have embraced the technological changes being experienced by their clients. How can lawyers adapt to and thrive in their new competitive environments? While it seems likely that no facet of legal practice will be left unaffected by the evolutionary forces, including those described by Richard Susskind as the ‘market pull towards commoditisation’ of legal services and the ‘pervasive development and uptake of information technology in legal service’ (R Susskind The End of Lawyers? Rethinking the Nature of Legal Services 1ed (Oxford University Press 2010) at 1), this article deals specifically with the impact of information technology on litigation practice and examines the existing interplay between the rules of court and the ECTA. It suggests that, while the principles of litigation are likely to remain relatively unchanged over time, the practice of litigation is evolving rapidly to suit the modern digital environment in which clients now find themselves operating and competing.

That litigation practice needs to adapt is already evident. Eavesdrop on conversations taking place in the corridors of court buildings and you will sense that they frequently overflow with mutual dissatisfaction from both the client and the lawyer sides. Even before the current global economic mood set in, many clients became unconvinced of the value of litigation when they compared the net possible result to the time, risks and costs involved. Lawyers themselves, particularly at associate level, are similarly unconvinced that keeping track of rooms of paper was the real reason they spent a significant portion of their twenties attending lectures.

Many lawyers have expressed a desire to focus less on information management and more on knowledge management or, put another way, to focus less on chasing paper and more on practising law. A brief review of the rules of court and the ECTA will quickly reveal that the adoption of electronic discovery represents one of the most significant practical opportunities for improving the experience of litigation while ensuring the delivery of the best professional service to clients in an age where 90% of information is generated, communicated and stored electronically.

The impact of the ECTA on the rules of court

When the ECTA first came into effect, litigation practitioners breathed a collective sigh of relief that the cumbersome provisions of the Computer Evidence Act 57 of 1983 requiring the authentication of computer printouts had been repealed. In its place, the ECTA introduced the concept of a ‘data message’ (broadly enough defined in the Act to include any document that is either generated, sent, received or stored electronically) and provided that data messages must be given their due evidential weight.

Most written communications generated today (including e-mails, electronic documents attached to e-mails, electronically generated invoices, webpages and SMS messages) would be regarded as data messages in terms of the ECTA and the admissibility and evidential weight of these data messages must therefore be assessed in accordance with the ordinary rules of evidence as refined by the provisions of the ECTA.

While most lawyers are aware that the ECTA repealed the Computer Evidence Act, they are less familiar with the fact that ss 14 and 17 of the ECTA now provide that where any law requires a person to produce a document (including the ‘original’ of a document), that requirement may be met if the person produces an electronic copy of a data message, provided that at the time the data message was sent the method of generating the electronic form of that document provided a reliable means of assuring the maintenance of the integrity of the information contained in that document.

The Uniform Rules of Court for the High Court and the magistrates’ courts rules provide for litigants to make discovery on oath of all documents relating to any matter in question in litigation and to produce such documents for inspection and at trial. Yet, notwithstanding ss 14 and 17 of the ECTA, many practitioners still drown unnecessarily in seas of paper when it comes to the discovery and production of documents in litigation.

It is estimated that more than 70% of South African lawyers still ‘reduce then produce’, that is, they produce and exchange discovered electronic documents in paper form only. Viewed purely from the perspective of efficiency, the pitfalls of this approach should be obvious. Firstly, it is extremely difficult and time consuming to find the right information in a room full of paper. Secondly, keyword or concept searching of paper documents requires a linear or manual review of all documents as opposed to electronic keyword searching, which can be performed simultaneously across large sets of electronic documents. Lawyers can also become restricted in the physical locations in which they may work where the documents they need to refer to are located in only one physical environment. For every team member added to a litigation project, an additional set of documents often needs to be compiled and any relevant notes that a practitioner makes regarding his document set are not readily available to others.

As a result, paper discovery and document production often result in lawyers (attorneys in particular) spending a disproportionate amount of time on document management activities compared with the amount of time they spend researching the law and formulating winning case strategies. Ask a lawyer a meaningless factual question like what the weight of the largest pumpkin ever grown is and he would probably be able to turn to the internet to produce the correct answer within 60 seconds. Why then should a lawyer take any longer to determine more important facts, like whether a potentially relevant document exists within his client’s documentary records? Electronic information management rewards practitioners with significant efficiency benefits that clients have come to appreciate and are now beginning to expect.

The strategic value of metadata

Apart from efficiency benefits, there are other reasons why practitioners should insist that both their clients and their opponents produce documents in electronic form. Section 15(1)(b) of the ECTA provides that a data message should not be regarded as being inadmissible on the grounds that it is not in its original form ‘if it is the best evidence that the person adducing it could reasonably be expected to obtain’. This modern refinement of the old ‘best evidence’ rule begs an important question: Where an electronic copy of an electronic document exists, could a printout of that information be regarded as the ‘best evidence’ that the adducer could reasonably be expected to obtain? The answer in most cases should be no, because a printed copy would lack the embedded information normally retained in an electronic copy that evidences when, and by whom, the document was originally created, whether it was revised or edited, to whom it may have been sent and when it was received.

The embedded information referred to above is known as the ‘metadata’ of an electronic document and is typically viewable in the ‘properties’ section of the ‘file’ menu of most electronic documents. In the case of e-mail in particular, an astonishing amount of detail is usually contained in the metadata of most messages, including the time a message was dispatched or received by the sending and receiving mail servers and the precise delivery path the message followed en route. Where an electronic copy of an e-mail still exists, a printed copy showing the time it was received would not be regarded as the best evidence of when that e-mail was actually received or whether the contents have remained complete and unaltered.

The rules providing for the inspection and production of discovered documents do not expressly require litigants to produce document metadata. However, r 35(10) of the Uniform Rules of Court provides that any party may give to any other party who has made discovery of a document a notice to produce at the hearing the ‘original’ of such document.

Section 14 of the ECTA stipulates that where the ‘original’ of a document is required by law, that requirement is met in the case of an electronic document where the ‘integrity’ of the document produced passes an assessment of whether the information has remained complete and unaltered since it was created, apart from the addition of any endorsement or change that arose in the normal course of its communication, storage or display and where that information is capable of being displayed or produced to the person to whom it is being presented.

If the ‘integrity’ of an electronic document can only be assessed by having regard for its metadata, then whenever practitioners are entitled during litigious proceedings to demand the production of an ‘original’ document, they can insist, in the case of an electronic document, on the production of an electronic copy containing (and capable of displaying) the relevant metadata. In the absence of credible metadata, the admissibility and evidential weight of any electronic document may fall to be challenged.

While some lawyers may prefer to consign issues relating to metadata to the esoteric heap of questions forwarded to the IT helpdesk, the fact that metadata can be an important factor in determining both the admissibility and evidential weight of an electronic document, as well as in proving issues in dispute, means that modern lawyers must be conversant with the meaning of the term. Metadata is in fact often referred to as the ‘digital fingerprint’ of a document and is increasingly being used to prove or disprove a broad range of issues in dispute between litigants.

Litigators should always take particular heed of the advice of the court in The MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and Others 1999 (3) SA 500 (C) at 513G, where it stated: ‘Discovery has been said to “rank with cross-examination as one of the two mightiest engines for the exposure of the truth ever to have been devised in the Anglo-Saxon family of legal systems. Properly employed where its use is called for it can be, and often is, a devastating tool’’.’

In other parts of the world, electronic document discovery blunders have already left a host of judgments, costs orders and red-faced lawyers in their wake, while in the United Kingdom the increasing importance being placed on metadata was recognised by an amendment to the civil procedure rules relating to discovery, such that the definition of ‘document’ in the rules now specifically includes ‘additional information stored and associated with electronic documents known as “metadata”’ (see UK Civil Procedure Rules ‘Practice Direction 31A – Disclosure and Inspection’, part 31A 2A.1 www.justice.gov.uk, accessed 23-11-2011).

South African practitioners who fail to advise their clients on the potential significance of metadata risk significant prejudice to their clients. Practitioners should therefore have regard for these issues not only prior to trial but should advise clients of the significance of their receiving electronic documents in electronic form right from the commencement of any litigious proceedings and certainly prior to the receipt of the first discovery notices.

Conclusion

The rapid advancement of electronic litigation technologies coupled with the enormous time pressures lawyers frequently find themselves under both demand that lawyers who are committed to upholding the best interests of their clients should regularly be reflecting on the questions recommended by Susskind, such as: What elements of their current workload could be undertaken more efficiently or to a higher quality using different or new methods of working? Such an approach should ultimately result in a more rewarding experience of litigation, both for lawyers and their clients.

Brendan Hughes BA LLB (UCT) is an attorney specialising in electronic discovery at Infology in Cape Town.

This article was first published in De Rebus in 2012 (Jan/Feb) DR 24.

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