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Task 2 - xblaw

A) What is e-discovery and why is it relevant to legal practice and civil procedure

E discovery is the collection, processing and review of documents which are stored in an electronic format

http://www.derebus.org.za/rise-electronic-discovery/

Electronic discovery provides practical opportunities to improve litigation and the delivery of service.

http://www.derebus.org.za/rise-electronic-discovery/

 B) How does it work

The object of discovery is to ensure that both parties are made aware of all the available documentary evidence before the trial commences in order to narrow the issues and eliminate incontrovertible points of debate

Hall v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 195 (C) at 199I – J

If a law requires a person to produce a document, then that person may produce the electronic copy of that data message but it must be ensured that there was maintenance of integrity of the information contained in that data message at the time it was sent. This is to ensure the information was not unlawfully altered.

Electronic Communications and Transactions Act 25 of 2002 Section 14

 C) Should e-discovery be incorporated into the rules of civil procedure

With the technology advances being made, e-discovery should definitely be incorporated into the rules of civil procedure. By learning and understanding the ECTA Act, law firms will be able to offer quicker turn around time, better service and be more prepared to assist their clients. All the information required can be stored and accessed online at anytime making life easier for all parties involved.

 D) Some of the challenges facing e-discovery in South Africa

·         High costs of high-speed internet

·         Lack of proper knowledge of e-discovery in general

·         High costs typically associated with purchasing software and monthly fees

 E) Global trends regarding the adaption of e-discovery and is SA keeping up or lagging 

Legal changes such as the Federal Rules of Civil Procedure (FRCP) in the United States, the introduction of the EU’s General Data Protection Regulations (GDPR), and new case law is further evolving eDiscovery. Legal cases are testing the boundaries and processes, such as concerning access rights for social media discovery, requiring individuals to provide passwords, and how to deal with the deliberate deletion of data by parties to litigation (e.g. texts, photos, videos) on mobile devices.

https://www.linealservices.com/ediscovery-trends/

Our case law furthering e-discovery is very slow and our Electronic Communications and Transactions Act 25 of 2002 is still developing and adapting but is far from the finished product or as effective as other countries ECTA’s

 F) How will the inclusion of e-technologies in legal practice impact on the practitioner’s duty of care, skill and attention to his client

A duty of care is a legal duty requiring the professional to act with a standard of care and skill when dealing with their client.

In any legal matter, information of a personal nature is revealed and the practitioner must ensure that the information is not unnecessarily disclosed or accessed. The potential for the unauthorised use of sensitive information is of increased where it is stored and transmitted electronically.

Technology has however shown when used properly can make our lives much easier and e-technology is the same and will impact positively on a practitioner’s duty of care, skill and attention if utilised properly.

 G) Will e-technology in legal practise potentially impact the S14 rights of litigants

A comprehensive personal dossier can now take minutes to compile electronically and a digital camera or mobile phone can record images in an infinite variety of ways and circumstances. The law must recognize an individual right to privacy and if it does not than Section 14 rights of litigants will cease to exist.