By Prof. Danny Myburgh, Managing Director at Cyanre – The Digital Forensic Lab
With the explosion of digital documents and electronically stored information (ESI), electronic document review in South Africa is far from new. It is, however, still a rapidly developing field, particularly with the widescale adoption of social media, collaboration tools and mobile workforces and consumers who are constantly connected to the internet through networks, the cloud, laptops, and handheld devices.
Within this always-on, data-driven environment, there is pressure for legal teams and forensic practitioners to not only understand the landscape, but to determine how they can cooperate with each other better in the case of civil and criminal cases.
At LexTrado, we have partnered with some of the best software and hardware providers in the world, but the technology available is only one aspect of eDiscovery and Electronic Document Review.
Technological advancements, regulatory demands and evolving laws have created international trends that are beginning to impact how lawyers approach Electronic Document Review in South Africa. For example, court rulings in the UK and the US are promoting cooperation and preservation, and many legal and IT teams are adopting a proactive mindset when it comes to cooperation and integration, and utilising the best technology while maintaining efficiency.
Here are three key best-practice trends that we are observing overseas, and which we believe will start to become more prominent in South Africa in the near future.
- eDiscovery is the gold standard in Discovery
For well over a decade case law has existed in the US supporting ‘Technology Assisted Discovery’ (eDiscovery). As early as 2012, in Da Silva Moore v. Publicis Groupe, the court found the previously-held ‘gold standard’ of linear review to be a myth and that keyword searching could be likened to a game of ‘Go Fish’. By contrast, the court found that eDiscovery yields a fifty-fold saving over manual review.
Since then, the rulings supporting Technology Assisted Review (TAR) and eDiscovery have grown substantially. While A guide to eDiscovery in South Africa, the first paper detailing eDiscovery best-practice in Africa, was only published in 2021 by LexisNexis, we can expect eDiscovery to become increasingly important to courts.
- Information governance must be proactive
The shift to eDiscovery began when it became clear that traditional discovery did not meet the needs of multiple different formats of ESI generated and stored across various electronic platforms. Preserving, collecting and storing ESI cannot be performed by humans alone and technology became a critical component of the entire eDiscovery process.
However, eDiscovery is also the single most costly element in litigation, which means aside from the fact that all relevant documents must be found, reviewed and shared, organisations are striving to increase visibility into the entire process and its associated costs. This is critical to improve outcomes, streamline IT processes and leverage technology assisted discovery to accomplish more in less time and at a lower cost.
The key to achieving all of the above is proactive information governance. Remember, every element of ESI is potentially an asset – and any piece of information could be subject to a legal hold. Businesses must therefore understand:
- What content is in their possession
- How it was created
- Where it resides
- Who can access it
- and if (or when) it should be deleted.
This is no longer the purview of the IT department, but in-house and external legal teams as well.
A strategic governance platform can help an organisation categorise objects to establish its value, enforce retention and deletion, apply and track legal holds, and finally, enable intelligent search and retrieval for investigations, monitoring, and discovery.
- Advanced technology is streamlining review and analysis
If eDiscovery is the single biggest cost in a legal case, the review and analysis
phase is the most expensive in the eDiscovery process. According to a study published by the Rand Corporation, reviewing electronic documents makes up the most significant percentage of eDiscovery production costs at 73% of all expenses. Data collection consumes 8% of expenditures, and costs for processing are around 19% in typical cases.
Many legal teams use an ‘early case assessment’ process to pre-cull documents prior to review and reduce the data set, but the ever-increasing volume of data makes it difficult to control these costs.
Traditional, legacy review technology still relies on linear review (particularly in South Africa), which is extremely time-consuming as the process starts with the first document and moves chronologically through the documents in the data-set. More advanced technology, on the other hand, permits nonlinear review, with reviewers categorising and clustering data based on concept and context, drastically improving review speeds and allowing reviewers to focus on a given topic. This leads to more relevant documents discovered sooner, which allows lawyers to prepare the best legal defence – and adjust that defence as required during the litigation process.
How LexTrado can assist
LexTrado was launched when a need was identified in South Africa to follow international trends in litigation where electronic data is concerned. Due to the increase in digital communications and data used by individuals and companies alike, as well as constant innovation in the IT field, litigants require more than just standard IT support. LexTrado is an independent firm specialising in eDiscovery services, hosting of sensitive data in an encrypted and highly secure environment, and hosting of ICT systems for companies in business rescue or under liquidation for financial wind-up and digital escrow services.