I am sure many lawyers can imagine a room full of documentation, faced by an army of junior lawyers all working on the thankless task of finding some information. And then, even worse, is the client’s reaction when they get the bill for all the time spent doing this especially when it is so difficult to demonstrate any real value. And, in Africa, where many of us are still printing out electronic data to try and do this in a manual hardcopy format, it all seems so pointless…
E-discovery, as a discipline, has attempted to resolve this issue. It is focused on electronic formats for data and was the first innovation in law that was almost entirely technology driven.
To delve into this world of electronic data and software, I spoke to global e-discovery trailblazer and ex-practicing lawyer (like so many), Terry Harrison, on the application of e-discovery in the African context. Just to put it out there, Terry has worked on some big global cases using e-discovery and his insights into its use in Africa are unparalleled. For the last five years he has been educating the South African market, including myself, on how to use and leverage e-discovery in the email age.
E-discovery describes any process where electronic data is sought, secured, located, explored and retrieved with intended use as evidence in a civil or criminal case (techopedia.com). Check out https://www.edrm.net/and https://www.aceds.org/group/SouthAfrica for more reading. However, e-discovery technology and its uses far exceed the narrow definition of litigation. Due diligence, auditing and early matter assessment are further uses which can be explored. It has been used with much success in corruption cases, competition cases, employment matters, criminal and fraud investigations. All major global law enforcement agencies are using e-discovery. This should in itself be indicative.
But Harrison warns documents are being missed by applying traditional methods to electronic data. If documents are not being reviewed, his logical conclusion is that hearings and processes could be subject to a number of incorrect decisions, not because of the law, but because of fact. He is concerned that we, as lawyers in Africa, are only now beginning to understand the risks of electronic data.
His advice around an e-discovery solution is simple. First, the way data is collected is imperative. Harrison does not recommend that the client does this themselves, but should rather be a collaborative environment between the client’s IT function and a forensic data collection service provider. You may get more data, but you can be assured that you have not missed anything.
Second, get help to do the heavy data lifting, with e-discovery software or technology and a good service provider that can assist with the development of data models. E-discovery is an iterative process, hence the potential application of AI, for continuous learning and improvement.
Technically, Harrison further highlights the importance of meta data. Meta data management helps develop a further level of analysis and better culling, which ensures much higher relevance levels, especially when compared to “human” lawyers.
Having early access to relevant data and not having to pay lawyers to read irrelevant documentation can dramatically reduce costs associated with many tasks that can be delivered by e-discovery solutions. And for me, the cost reductions aside, it’s the subsequent increase in transparency which can be so important for Africa.
As a lawyer, am I meeting my ethical duty to my client if I am not dealing with electronic data in a responsible manner? I think not.
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