In an ever-advancing technological era, the legal fraternity has felt the pressure of having to keep abreast with the latest technological innovations as these advancements make its way into nearly every aspect of our lives. Accordingly, our Courts ought to follow suit as the majority of communications and agreements that precipitate or are the subject of a dispute occur electronically. In the event of a dispute being brought before the Court, electronically stored information (ESI) is usually sought which gives rise to the process of electronic discovery (eDiscovery).
What is eDiscovery?
EDiscovery is the process of producing ESI which has been identified and collected pursuant to a request during the course of legal proceedings. ESI includes, but is not limited to, emails, documents, instant messaging chats, databases, cellular voice mail, audio and video files, and web sites. Furthermore, analysts are able to review “raw data” and “metadata” which informs the user as to: who created a document, when it was created or subsequently modified, and/or who sent and received it. This may lead to the uncovering of exceptionally important facts in a dispute.
The eDiscovery Process
Accordingly, the preservation of such data is paramount to preventing the tampering or destruction of evidence at a later stage. Once the relevant evidence is identified by the parties to a litigation, it is placed under a legal hold which ensures that it is not modified, deleted or destroyed. Data deemed to be potentially relevant is collected and extracted, indexed and placed in a database, where after irrelevant ESI is disposed of.
Thereafter, a secure environment is created which will host the ESI for access by reviewers who code the documents for its relevance to the legal matter. Once the ESI has been reviewed and analysed, it is converted into various formats which enable easier navigation and favour redaction of privileged information for purposes of producing the ESI for presentation to the Court. The various stages highlighted herein constitute the Electronic Discovery Reference Model (EDRM) and form the framework for the eDiscovery process.
Transitioning to eDiscovery
EDiscovery is a fairly novel concept but has been successfully incorporated into the rules of civil procedure in many countries. For example, the Federal Rules of Civil Procedure (FRCP) in the United States of America, which governs all elements of civil litigation processes, addressed legal discovery in the broader sense but had nothing specifically related to eDiscovery or ESI. The absence of any specific language created a great deal of uncertainty as cases evolved to include and then exclusively involve ESI. Rule 1 of the FRCP aims to secure the just, speedy and inexpensive determination of every action and proceeding. In view of potentially exorbitant eDiscovery costs to flow from proposed amendments, Rule 1 was used to enforce co-operation as a means to expedite fair and efficient legal matters.
It is against this backdrop that the FRCP was thus amended to provide that attorneys prepare relevant ESI and come into pre-trial conferences informed, in order to properly scope eDiscovery processes and that parties limit their eDiscovery requests within the ambit of reasonableness and proportionality. Moreover, the amendments empowered judges to sanction parties for failing to produce relevant documents and established circumstances in which a party cannot be punished for failing to produce ESI. The amendments made it clear that reasonableness, and not perfection, is expected in preserving ESI and that good faith efforts be made to preserve and produce ESI.
In South Africa, the primary issue with the Uniform Rules of Court (URC), together with Section 15 of the Electronic Communications and Transactions Act 25 of 2002, is that insufficient provision is made in respect of ESI. To this end, ESI may be discovered only if accompanied by a certificate of authenticity. Although certain printed versions of ESI are admissible in Court, there is no provision for any process similar in nature to that of EDRM – which essentially guarantees preservation of data and detailed analysis prior to presentation. As with the FRCP, the URC ought to be amended in a manner which brings about mandatory eDiscovery. Indeed, proposed amendments have been under consideration by the Rules Board, however, progressive steps have not been taken.
Globally, the use of eDiscovery processes has reduced the costs of litigation. While the attorney would usually spend a great deal of time reviewing documents in order to identify and extract relevant information, eDiscovery and EDRM essentially streamlines the process. With the reduction in legal costs, access to justice is immediately promoted. Additionally, in international legal matters involving South Africa, foreign practitioners are having to arrange for collection and shipment of information to their country where ESI can be subjected to the process outlined by the EDRM. South Africa is thus losing valuable business in this regard.
In view of the recently adopted International Arbitration Bill and its pending enactment, it may be due time that South Africa take proactive steps towards incorporating eDiscovery into its legal system.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)