Happy New Year, or is a more appropriate greeting, a less unhappy New Year? It would be difficult to imagine a year as bad as 2020 for most of us and equally difficult to be optimistic about 2021 in terms of the effects of the global pandemic. We cannot ignore the changes it has brought into our lives – it continues to ensure that we do not – but what we can do, is go about our home and work lives in the best way possible and look in a forward direction every single day. Work is often an antidote (or escape route) when times are tough so let us concentrate, in this post on my work passion, eDiscovery in SA. In my last post of 2020 I said that despite the pandemic the year had been a great one for eDiscovery in SA. Can 2021 be even better? Yes, it can. I have mentioned previously that I receive a large amount of data over my desktop daily with happenings in eDiscovery around the world. Anyone involved in eDiscovery needs to keep as up to date as possible because eventually things filter through – even to South Africa! For example my good friend Chris Dale in the UK provided some turn of the year updates, interestingly many from the UK rather than USA for a change. Then I saw this excellent article from the USA highlighting the top eDiscovery cases of 2020 with lessons learned for 2021 Here is another one I liked with predictions for 2021 in legal technology from various industry leaders. Artificial Intelligence (AI) features very heavily and I know that AI is being used by a number of law firms in SA now. So what about SA and eDiscovery? Let us look at what will happen, what might happen and what I hope will happen. Without doubt we will see even more use of eDiscovery technology in SA and it will surpass 2020.The volume of data is continuing to grow, and law firms and their clients realise that they cannot deal with it unless they use technology. I foresee more investigations in SA in which eDiscovery technology will be used in 2021. Here is an excellent short article from international law firm Allen& Overy about eDiscovery in investigations and collecting evidence properly – subjects I have written about often. Then a long but fantastic article by another international law firm Dechert LLp speaking of the use of eDiscovery technology in multi-jurisdictional investigations. I like this partly because it deals with eDiscovery in a simple basic way but outlines its importance and because I can see SA being involved in more multi-jurisdictional matters. Something else which we should see happen in 2021 in SA is the full implementation of POPIA, with the best guess (though not confirmed) date being 1 July. Data Protection and Privacy is so important, and eDiscovery plays a huge role in it as I have written about in the past. It is such a hot topic as you will see, for example, from the recent happenings involving Facebook and Whats App as well as the emergence of Telegram. Furthermore, if you thought GDPR was challenging, take a look at the EU’s new Data Services Act! I have concerns about POPIA as we have already waited far too long, and we just do not seem to hear anything from the Regulator’s office about what is happening. One of my specific interests is the role of eDiscovery service providers as far as processing data is concerned. In the UK for example, a service provider registers with the regulatory body that it processes data in connection with litigation and other types of cases. I have asked the SA regulator’s office, by email, if the same will apply here and what is the process. I have been waiting for more than a year for a response. Section 20 of POPIA says, inter alia :- An operator or anyone processing personal information on behalf of a responsible party must 1. process such information only with the knowledge or authorisation of the responsible party; 2. treat personal information which comes to their knowledge as confidential and must not disclose it, unless required by law or in the course of the proper performance of their duties. Does this mean that there is no necessity to be registered with the Regulator as a data operator if you are an eDiscovery service provider? Some clarity would be good. Something that will definitely happen is the publication of SA’s first ever book “A Guide to eDiscovery in South Africa” written by myself and Retd Judge Ismail Hussain. Everything is on track for publication in February and I cannot begin to tell you how proud and excited I am about that. I also predict that the book will have an impact on eDiscovery in SA as more people will learn more and want to know more. Apart from lawyers I have law students and law lecturers desperately waiting for this book and there are serious suggestions that it should be part of their required library for the LL.B course. Another 2021 prediction is that the book will help with the organisation of webinars on eDiscovery A further prediction for SA is that we will see prosecutions arising out of corruption as found by the Zondo Commission which will complete its findings this year. It is clear that the Government and the NPA are fully committed as seen in this very recent post and as I have previously written this is great news for eDiscovery technology as without doubt it will be used for some, if not all, of these prosecutions. All of the above are reasons for me to be more than optimistic about the increased use of eDiscovery technology in SA in 2021 and therefore the widening knowledge of its benefits. I must refer once again to the Discussion Paper 150 of the South Africa Law Reform Commission with its investigation into legal fees, including tremendous support for incorporating eDiscovery into the Uniform Rules. Everyone knows I have been working for this for 5 years and now being supported by SALRC and numerous bodies it is not difficult to predict that pressure upon the Rules Board to act will ramp up In the title of this post I included the words “…hope for..” I cannot, in all honesty predict it will happen, but I fervently hope that 2021 is the year when we see the beginning of real progress, from the Rules Board to bring eDiscovery into the Rules. It could happen. It should happen. I will dare to believe that it will happen