The role of eDiscovery in the collection of legally defensible evidence

By Professor Danny Myburgh

The concept of legally defensible evidence has evolved significantly in the digital age, even if modern litigation guidelines in South Africa have not. For example, according to LexisNexis, it has been calculated that more than 97% of business documents are created electronically. This includes a wide range of digital formats—emails, documents, databases, audio, video, and social media interactions, along with their associated metadata—that are processed and stored in the cloud, on different servers and applications, in email inboxes and data archives. They are made up of structured and unstructured data and, as you’ve no doubt experienced in your own business, they are subject to a lot of duplication.

An electronic solution to all of these electronic documents seems obvious, but Discussion Paper 150, published on 10 September 2020 by the South African Law Reform Commission, reveals that there is insufficient use of eDiscovery in South Africa, noting that, “The general approach in South Africa seems to be that electronic documents are printed for purposes of discovery. This is inefficient, and it causes valuable information to be neglected, resulting in increased legal costs.”

High legal costs aside, the digital footprint’s expansiveness also adds layers of complexity to the process of collecting evidence that will stand up in court.

There are multiple challenges to gathering legally defensible evidence in this digital ecosystem. The volume and variety of data are overwhelming, the short-lived nature of digital information is challenging to capture, and the technological landscape is continuously shifting. The very nature of electronic data—its ability to be altered, deleted, or manipulated—requires rigorous safeguards to ensure the authenticity and integrity of the evidence. A meticulous approach to maintaining the chain of custody is critical. And of course, with the correct solution in place, everything won’t need to be printed to be reviewed.

Enter eDiscovery (electronic discovery), the structured process in which electronic data is identified, secured, and searched with the intent of using it as evidence in legal cases. eDiscovery is the cornerstone in the management of the lifecycle of digital evidence. From the initial identification and preservation to the final production, eDiscovery solutions provide a comprehensive framework to address the demands of modern evidence collection.

An end-to-end streamlined process

The eDiscovery process involves rigorous methods to preserve metadata and maintain an unbroken chain of custody. It equips internal and external legal teams with the tools to manage and sort through massive amounts of data from a multitude of sources. Advanced eDiscovery platforms offer the capability to perform sophisticated analytics, applying predictive coding and machine learning to streamline the review process. When it comes time to produce evidence, these solutions ensure that the data is presented in a court-acceptable format that meets specific evidentiary standards.

Unpacking the costs

We’ve highlighted why eDiscovery has become so important to courts in civil cases, and we expect that the South African High Court will eventually follow many other international courts in demanding that cases meet eDiscovery thresholds, but for now the benefits go beyond compliance. The ability to manage risk effectively is a key consideration. The potential for spoliation, data breaches during the discovery process, and reputational damage due to mishandling evidence are all mitigated through the use of eDiscovery.

From a financial perspective, many South African organisations have believed that eDiscovery solutions were too expensive thanks to international subscriptions and costings. This was the key reason we invested in top-tier international eDiscovery platforms. LexTrado gives our clients access to these solutions at local prices. We have partnered with the best providers in the world to make these solutions affordable for our local market.

There are additional cost benefits as well, including the reduction in manual labor (particularly during the document review process), the avoidance of legal penalties, and the increased efficiency of the litigation support process. The competitive advantage gained through the effective handling of complex legal matters cannot be overstated. Law firms and corporations that employ eDiscovery tools can navigate complex cases with greater competence and agility.

To discover what your needs are and the various solutions available to you—at local, competitive pricing—speak to our LexTrado team today.