eDiscovery and what it means for legal practitioners in SA

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01 Jun 2021

We are living in a society where technology and the digital realm thereof is fast progressing and, as a result, infiltrating the daily lives of South Africans, often quicker than regulations and the legal profession. Due to the impact of digitisation on the justice system, the concept of eDiscovery is finally being adopted, which can be very challenging but extremely beneficial to all legal practitioners.

In essence, eDiscovery entails obtaining evidence or data electronically from various digital sources and platforms such as emails, electronic messages and social media. It relates to the access and collection of communication in a digital format. We foresee that eDiscovery will become a preferred method of obtaining digitised evidence, information and data. This is because it is electronically retrieved in the form it was created and is therefore more reliable than hard copy documents which change the nature of the data or the source thereof. This is and has historically been problematic from an authenticity point of view and often leads to adverse outcomes on matters or severe delays. As a rule of thumb, we know that the result of a matter is often dependent on the quality of the evidence.

When speaking about reliability and the authenticity of evidence and data, we need to talk about Metadata. Metadata is the information generated within a piece of electronic data and is data about data. It exists within every digital item stored on physical devices, such as your computer and smartphone. The information contained within metadata can include the user who created it, creation date, history and document software used to make it. These devices may also collect metadata about your usage, building a digital footprint. These properties may be automatically generated by your operating system or the application you are using.

Access to and a better understanding of digital information, data and Metadata could be a powerful tool to enhance efficiency in the justice system and save practitioners time to go through volumes of data. However, it is worth mentioning that although there are clear benefits to eDiscovery, it does come with challenges.

Considering that eDiscovery is becoming the new normal, legal practitioners need to ensure that they familiarise themselves with legislation regulating electronic information, such as the Electronic Communications and Transactions Act 25 of 2002, Cybercrimes Bill and the rules and implications relating to eDiscovery.

The challenge is to transition into a new way of working with electronic evidence, to understand its nature, what makes it authentic and how to use the available tools.  It enables attorneys to access electronic data easily and to practise law more efficiently. Furthermore, because technology is not necessarily a lawyer’s field of expertise, it is essential that legal practitioners work closely with IT teams to ensure that eDiscovery is easy to navigate and understand.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Nicolene Schoeman-Louw

Mrs Nicolene Schoeman – Louw founded the firm in 2007, aged 24, and is now the Managing Director of the firm. Nicolene is an admitted Attorney of the High Court... Read more about Nicolene Schoeman-Louw


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