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Task 2 XBLAW 7319 ST10120728

An examination of the merits and challenges of incorporating e-discovery into South African Civil Procedure. 

What is E-discovery and why is it relevant to legal practice and civil procedure?

eDiscovery is the procedure of finding, safeguarding, developing and searching electronic information in legal discovery.[2] The Civil Proceedings Evidence Act 25 of 1965 (CPEA) lists the requirements for the production of documents to lessen the issues in question and to ensure that the court’s time is not wasted.[3] 

How does it work?

The use of electronic data in court proceedings is authorised in section 11(1) of the Electronic Communications and Transactions Act 25 of 2002 which states that information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.[4] The process followed for e-discovery is information regulation, identification, preservation and collection, processing, review and analysis, production and presentation at trial.[5] 

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

Most data is now stored and transmitted electronically therefore the legislature should cater to the changing environment to make it easier for every legal person to present credible evidence in a juristic setting. In addition, by using electronic means to store and transmit data, important information and documents can be stored and located much easier with a much lower rate of loss.

What are some of the challenges facing e-discovery in South Africa?

With regards to safeguarding, council has an obligation to protect any electronic documents that could be pertinent or presumed to be a prerequisite for later litigation.[6] This can be quite a costly exercise that is charged on billable hours and hosting fees per gigabyte.[7] However, if these files are stored locally and backed up onto a secondary drive that is also password protected off premises, these storage costs can be reduced significantly in comparison to the costs of printing thousands of pages of information and then making copies thereof for submission.[8] 

With regards to format, PDF seems to be the generally accepted format for files as they can be password protected to ensure they reach only their intended recipient/s and that the file can never be changed in transit in a manner that would physically affect the contents of the file in question.[9] 

With regards to the number of files, the amount of effort needed would be the same as with physical documents.[10] The real difference comes in the fact that digital documents would need to be verified as true and correct before they can be used in legal proceedings.[11]

What are some of the global trends regarding the adoption of e-discovery and is South Africa keeping up or lagging behind?

In the United States of America, electronically kept legal papers are components of discovery asks and replies.[12] All electronic information is regulated by the doctrine of sensible obtainability.[13] The court still has final choice to order that specific documents be revealed in any manner the court wants.[14] There are rules regarding penalties to be imposed if stratagem and court process are not followed regarding the discovery of electronic documents.[15] 

From the above, it would appear that South Africa is lagging behind regarding the adoption of e-discovery processes as no specific rules are laid down regarding e-discovery procedure.[16] Electronic documents are, however, regulated in civil procedure through the Rules of the High Court and the Rules of the Magistrate’s Court.[17] 

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

Regarding the practitioner’s duty of care, legal practitioner’s will need to be more sceptical of electronic documents and where they came from in order to ascertain if those documents can be used and are true and correct. 

Regarding skill, it is a lot easier to search through electronic documents than it is to search through physical documents. However, legal practitioner’s would be required to possess basic computer skills as this would be needed to run these searches. 

Research can be done on expert witnesses in order to verify their qualifications electronically.[18] Legal practitioners who are working on the same case can share important files securely through services such as Drop Box.[19] 

With regards to attention to the client, electronic devices and services ensure that even if a legal practitioner and a client cannot physically meet in person, they could still virtually meet through services such as Skype.[20]

Do you believe that the introduction to e-technologies in legal practice generally could impact the section 14 rights of litigants?

Section 14 of the Constitution of the Republic of South Africa, 1996 deals with the right to privacy. [21] As such, the section 14 rights of litigants would be affected substantially as all communications related to the matter that are not privileged nor prejudicial would have to be disclosed as part of discovery thereby impacting the litigant’s right to privacy.[22]

(Words: 809).

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[1] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022).

[2] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022).

[3] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022); Myburgh, A. E-discovery in South African law (2017) Academia academia.edu/download/53257166/E-Discovery_in_SA.pdf (accessed 28 April 2022).

[4] Section 11(1) of the Electronic Communications and Transactions Act 25 of 2002.

[5] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022).

[6] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022).

[7] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022); CloudNine Managing the unpredictability of eDiscovery costs (2022) eDiscovery daily blog cloudnine.com/ediscoverydaily/managing-unpredictability-of-ediscovery-costs-with-cloudnine (accessed 16 May 2022).

[8] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[9] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[10] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[11] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[12] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[13] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[14] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[15] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[16] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[17] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[18] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[19] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[20] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[21] Section 14 of the Constitution of the Republic of South Africa, 1996.

[22] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

Bibliography 

Legislation

Civil Proceedings Evidence Act 25 of 1965 (CPEA).

Electronic Communications and Transactions Act 25 of 2002 (ECTA). 

Cases

N/A

Loose-leaf editions

N/A

Articles

CloudNine Managing the unpredictability of eDiscovery costs (2022) eDiscovery daily blog cloudnine.com/ediscoverydaily/managing-unpredictability-of-ediscovery-costs-with-cloudnine (accessed 16 May 2022).

Books

N/A

Chapters in books and journals

Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022). 

Myburgh, A. E-discovery in South African law (2017) Academia academia.edu/download/53257166/E-Discovery_in_SA.pdf (accessed 28 April 2022). 

Theses

N/A

Internet sources

1. Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).