eDiscovery in SA –Best news yet for compulsory eDiscovery in SA?

by Harrison

Way back in 2014, the South Africa Law Reform Commission (SALRC) published a Discussion Paper on the review of the law of evidence and it recommended that consideration should be given to amend the Rules of Court to provide for the discovery and inspection of electronic documents. Now, within the last few weeks, the same SALRC has published a further Discussion Paper, this time on the subject of an Investigation into Legal Fees. It is a long and interesting document. However, my main interest is a section headed, “Insufficient Use of eDiscovery” and the words, “…Commission concurs with the recommendation that the Rules of Court should be amended to make e-discovery compulsory.” There are a number of references to eDiscovery and the effect on reducing fees and I urge practitioners and legal teams of corporations to read this part of the report. Additionally, I am absolutely delighted (and a little embarrassed!) to see that an article I wrote for De Rebus, on the subject, is referred to in this SALRC Discussion Paper. Let us briefly go back in time. I began my campaign five years ago and eventually, after many communications and meetings I was invited to address the Rules Board in March 2017. I had enlisted the sponsorship and support of the, then LSSA, and we had submitted proposed draft amendments to the Rules to incorporate eDiscovery. Subsequently, I drafted and submitted a protocol to be used as a Practice Directive, as to how to operate the process of eDiscovery and to ensure consistency. Since that time the Rules Board appointed a Task Team to consider, inter alia, eDiscovery and as the Discussion Paper mentions, they are to investigate how other jurisdictions have dealt with it. Indeed, with permission, I recommended they look at New Zealand’s rules and partly used my protocol based on that of NZ. No word has, yet, come back from the Task Team but we can assume they are still investigating. What I am excited about right now is that I no longer feel like a lone voice and to have the backing of a body such as SALRC is just fantastic. Despite the tremendous difficulties of 2020, I have sensed that the timing for eDiscovery in SA was becoming closer and now, surely, we should see some progress.

Leave a Comment