{"id":2247,"date":"2024-04-28T19:38:45","date_gmt":"2024-04-28T19:38:45","guid":{"rendered":"https:\/\/harrisonsedconsulting.com\/?p=2247"},"modified":"2024-04-28T20:32:52","modified_gmt":"2024-04-28T20:32:52","slug":"ediscovery-in-sa-privilege-clawback-agreement-and-privilege-logs-in-sa","status":"publish","type":"post","link":"https:\/\/harrisonsedconsulting.com\/index.php\/2024\/04\/28\/ediscovery-in-sa-privilege-clawback-agreement-and-privilege-logs-in-sa\/","title":{"rendered":"eDiscovery in SA \u2013 privilege, clawback agreement and privilege logs in SA."},"content":{"rendered":"\t\t
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Firstly, I apologise for being comparatively quiet for the last few weeks. To be frank, the happenings in SA with the violence, lootings, taxi related violence as well as the continuing antics of Zuma and the apparent lack of progress with both the Zondo Commission and NPA investigations arising therefrom, all take their toll on me, to say nothing of further lockdown restrictions and not being able to buy alcohol! Sometimes it all becomes disheartening and frustrating. Anyway, enough negativity, let us move onwards and upwards. \r\n\r\nI decided to write again about eDiscovery in SA and privilege, partly because I am still often asked about the effect of eDiscovery technology on privilege and also because, across my desktop came a post from one of my most respected global eDiscovery contacts Doug Austin about EDRM and privilege logs \r\n\r\nSome of the comments I receive about privilege here are concerns that using eDiscovery technology may cause difficulties with privileged documents. That is difficult for me to understand and clearly the comments are based around a lack of knowledge. The truth is that eDiscovery technology is more than helpful with regard to privilege. From quickly being able to find privileged documents to facilitating a privilege review and to preparing privilege logs, the technology is invaluable.\r\n\r\nWhat is the common practice on privilege with SA lawyers? Do we employ the \u201cclawback agreement\u201d? Do we prepare privilege logs (I know that it is not part of our rules of civil procedure).?\r\n\r\nLet us have a quick look at the \u201cclawback agreement\u201d. I have been surprised that many lawyers here do not know what it is. Of course, we would always want to avoid any privileged documents slipping through the net, but human nature is what it is, and we all know that it can and does happen. The purpose of the clawback agreement is that if such an occurrence happens then, whilst you cannot \u201cun-ring the bell\u201d in that the other side have seen a document that you did not want them to see, they will not be able to use that document at trial. It is simple enough to enter into such an agreement with the other side at the outset of a matter so why not? Having made the agreement with the other side, verify it with the Court at a pre-trial conference or hearing so that it is not open to argument.\r\n\r\nThen we come to privilege logs. In the USA there is a rule of civil procedure to prepare privilege logs and submit \u2013 Rule 26 (b) (5). The fact that we, and other countries, do not have this procedure as part of the rules is not a good enough reason not to employ the procedure. I am all about best practices and defensibility, and to fail to do something simply because you don\u2019t have to, does not really wash with me. Again, eDiscovery technology is invaluable in preparing a privilege log. Privileged documents would be labelled and then, using the technology, identify the metadata fields you require and the system, along with your knowledgeable service provider, can produce a spreadsheet of your log from within the eDiscovery solution. Common fields used in privilege logs would include, to, from, cc, bcc\/ date fields\/ document type\/ document description\/ and privilege description. An example would be an email from A to B, with C as a cc, dated 1 January 2020, arranging a specialist report and attorney\/client privilege. The logs avoid arguments and save time and money.\r\n\r\nSaving time and money is at the forefront of the benefits of using eDiscovery technology. This post highlights two further examples of how this can be achieved here in SA. To quote the famous Nike slogan \u2013 Just Do It.<\/p>\r\n <\/div><\/div>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2247","post","type-post","status-publish","format-standard","hentry","category-blog"],"_links":{"self":[{"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/posts\/2247","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/comments?post=2247"}],"version-history":[{"count":4,"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/posts\/2247\/revisions"}],"predecessor-version":[{"id":2255,"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/posts\/2247\/revisions\/2255"}],"wp:attachment":[{"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/media?parent=2247"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/categories?post=2247"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/harrisonsedconsulting.com\/index.php\/wp-json\/wp\/v2\/tags?post=2247"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}