My very good friend and counterpart in New Zealand, Andrew King, has recently published in his blog a series of posts about common eDiscovery myths and I strongly recommend that you read these four posts. Apart from the fact that, as always, I enjoy reading Andrew’s posts, these not only resonate with me and my experiences in South Africa but some of the “myths” or objections found their way into my book, A Guide to eDiscovery in South Africa, published by Lexis Nexis. Andrew’s posts point to 4 common myths about eDiscovery. The first refers to the question of why we need eDiscovery software when there are proprietary methods of searching and finding electronic documents. Obviously, there is software such as Outlook, Adobe or even Google and Dropbox and many more as well as “put together” solutions which can do certain things but none of these are eDiscovery solutions. Interestingly on this topic Andrew suggests that as a law firm your clients would expect you to know and have access to eDiscovery software solutions. I wish I could say that about corporate clients here in SA as my feeling is that the majority do not have this expectation and rather rely upon what their external lawyers tell them. I have mentioned, many times in the past that globally it is corporates who have driven the use and development of eDiscovery technology in the last 20 years as they are the ones paying the bill! The second myth explored by Andrew is that the matter in hand is too small for eDiscovery software. Again, a popular one and more often than not a complete misconception. Of course, we must first remember that NZ has mandatory eDiscovery incorporated into its rules of civil procedure whilst we do not as yet. This means that electronic documents must be properly searched for and sourced. There could be very rare occasions when it is appropriate to print these documents if there are so few but printing electronic documents carries many inherent risks and dangers as we have discussed almost ad nauseam. The point really is that what you may think of as being a small collection could in fact be thousands of documents and a good eDiscovery service provider will be able to advise on best and most cost-efficient methods of dealing with them even if they are small in number. The third myth is that it is “too late to use eDiscovery software in this case”. Phew, the truth is that without eDiscovery technology it will become later and later and there will be all kinds of difficulties within the case which may even include sanctions. It also raises the point that those of us who are involved in eDiscovery continually try to hammer home that you must consult your service provider and/or Consultant at the earliest possible opportunity. The last myth referred to is that eDiscovery software is too costly and complicated. I dealt with the cost aspect at length in my last post. As for too complicated that is precisely what the experts are there for. Imagine, for example, a complex construction dispute concerning materials and methods. Would you say that you do not want to do this case because it is too complicated and will be expensive? Of course not, you would hire experts such as Consulting Engineers who would be costly but who would advise on the complexities. Treat eDiscovery Consultants and service providers in the same way – they are experts in a field in which you might not be. It is interesting that Andrew often asks lawyers to ask themselves “How can I do it better”? The answer lies in securing the services of good reliable experts. There is another myth surrounding eDiscovery in that small law firms do not use eDiscovery technology. That would pre-suppose that only large firms deal with litigation cases of any substance – frankly it is rubbish. Remember that in jurisdictions which incorporate eDiscovery into its rules of civil procedure it applies to all cases within certain parameters and has nothing to do with the size of the law firm representing the parties. I have said so many times that using eDiscovery software levels the playing field and makes it much easier for a smaller firm to go toe to toe with a larger one. A proprietor of a small firm in CT told me recently after reading my book, that he often found himself “punching above my weight” and that the book had helped him a great deal. The words collaboration and proportionality in connection with litigation and arbitration cases etc. may seem far away for South African practitioners and clients but they assume great importance elsewhere as I have written about in the past as well as in the book. Take a look at this article referring to a case in the USA in which BMW were the defendants You can see, not only the importance of both proportionality and collaboration, but how the Court viewed these doctrines. Believe me, what happens in USA, UK etc. will find its way to SA eventually. There can be no better time that right now to be thinking on these lines form the outset of any case – you owe it to your clients!