How an eDiscovery expert in South Africa challenges the system
A global legal services company with one of its delivery centers in Cape Town, Exigent, has been keeping a keen eye on the local legal services market in South Africa and it’s fair to say that exciting developments are afoot in this beautiful country. Not only have we seen a recent flurry of global law firms opening offices in South Africa (including Pinsent Masons, Allen & Overy and Clyde & Co Herbert Smith Freehills and DLA Piper) but the Information Regulator (Adv. Pansy Tlakula) has been appointed, which means the Protection of Personal Information Act, Act No. 4 of 2013 is likely to come into effect within the next year or so. Even more exciting is the imminent update to court rules to mention electronically stored information (“ESI”) and their impact on eDiscovery technology. One of the players leading this important change in legislation is Terry Harrison.
E-documents, South Africa-style
Terry worked as a litigation fee-earner for 30 years and spent 15 years running an electronic discovery and litigation support company in the UK. After his South African wife was offered a job in her hometown, they moved over to Cape Town, with Terry envisioning a life of retirement with cold beers next to the pool. It was not to be, however, and soon Terry was embarking on what he describes as a journey that will result in “probably the most important business presentation of my life”. “I realized very quickly from being in South Africa that South Africa had no civil procedure rules that dealt with electronic documents. There had been one or two small attempts to do so in a couple of pieces of legislation, but not at all in line with how the rest of the world deals with electronic discovery, so I started to worry.”
As it stands, very little provision is made for the discovery of ESI in South Africa’s rules of civil procedure as compared with other foreign jurisdictions, as illustrated in an informative article by Adv. Joe van Dorsten. The differences between South Africa’s approach and the direction the rest of the world seemed to have taken caused Terry to worry as “South Africa is losing an awful lot of business. If for example, a US company has a manufacturing plant in South Africa, instead of South Africa doing the processing, hosting and reviewing, data is getting collected by said US company and being taken to the US where it is processed, hosted and reviewed.”
Why eDiscovery technology is important at every latitude
As Terry simply puts it, “you’re missing documents”. Printed emails are a prime example of just how vital technology and eDiscovery is for any business:
- When you print emails, the attachments sometimes don’t print so you’re missing attachments and thus not reviewing those attachments or disclosing those attachments.
- Anyone try and print an Excel spreadsheet recently?
- You can’t print a deleted email. eDiscovery technology would find those deleted emails very easily.
- BCC fields are not captured when printed. How can you prove knowledge on the part of the BCC recipient without that field?
- People can write a seemingly innocuous email but change the font colour to white for the non-innocuous text. eDiscovery technology “is not colour prejudiced” and will find that white text.
Furthermore, one needs to try keep the volume of the ESI manageable. It’s very easy for one witness (custodian) to have 15 GB of data, equating to 100,000 documents. If you have 5 witnesses, that brings the number to half a million documents. How are you going to review them? To handle a more manageable review set, you need technology to filter the documents, whether by date range, folder location, file type and so on. “It’s not saying that not every document needs to be looked at; rather, it will be looked at by machine eyes instead of human eyes.” Thereafter, get human eyes on the documents by using a Legal Services company to review the reduced data set. To those lawyers who still insist on looking at each and every document, Terry says “Try telling your client that you are going to be charging them your hourly rate to look at every single document ̶ some of which are about setting up coffee dates!”
Making change happen in South Africa
Terry decided to raise the importance of changes to the South African system to the Rules Board of the Department of Justice in Pretoria. “It’s nothing new, it’s happened in every other jurisdiction in the world. It’s also about education of the judiciary. It’s a tough program but it’s not impossible. Above all else, it’s right. The fact of the matter is that ESI counts for something like 97% of all business communications. Ignore it at your peril.”
Thanks also to the support of the Law Society of South Africa (LSSA), a formal proposal for changes was submitted, suggesting the envisioned amendments would only be applicable to the High Court Rules. “Every court has a threshold and it was a very natural break to focus the amendments on the High Court Rules.” Excitingly, the High Court Committee of the Rules Board of the DOJ met with Terry on 4 March 2017 to discuss the proposal. As a result, Terry is drafting protocol documentation to tackle the practicalities of how to deal with eDiscovery. The proposed documentation includes a listing and exchange protocol, as well as responds to some specific questions and concerns expressed during the meeting. Terry said: “A positive aspect is that the Committee asked for this document within two weeks and I really believe that they will make the right decision.”
Watch this space.
Author: Claire Bestbier | Senior Associate | Exigent Group
