8 April 2020 by and Dispute Resolution Alert

Is it time for a re-boot of the South African discovery process?

There is much to be learnt from the United States of America when it comes to the discovery process. Not only does the US Federal Court system make use of the deposition process, but they have adopted e-Discovery in their Federal Rules of Civil Procedure which has revolutionised the assessment and processing of mass amounts of data for evidentiary purposes at trial.

The deposition process

Depositions are witness out-of-court testimony that are reduced to writing for later use in court or for discovery purposes. The deponent gives sworn oral answers to questions by counsel. Parties, non-parties and even trial witnesses may be deposed. Depositions enable a party to know in advance what a witness will say at the trial. This gives each party an opportunity to prepare thoroughly for their case and promotes transparency in the truth-seeking process.

Depositions present litigants with the opportunity to see all of the strengths and weaknesses of their case and the strongest weapon is that it is all recorded in writing. The written testimony may later be used in trial to impeach a witness in the event that they offer an inconsistent statement with their prior testimony.

Whilst Rule 37 pre-trial conferences attempt to narrow the issues before the court by parties requesting admissions and agreements on common cause facts and settlement discussions are had, a lawyer’s hand is never truly shown when it comes to oral evidence. Although relevant documentary evidence must be handed over during the discovery process, the devil is in the detail – which is often in witness testimony.

One of the reasons why the implementation of depositions would be ground-breaking in South Africa, is that depositions encourage settlement, which in turn would greatly decongest the court roll. South African court rolls are back-logged and judges are inundated with an excessive amount of cases to adjudicate. Not only are litigants’ rights to the speedy resolution of their disputes greatly prejudiced, but it often occurs that a judge does not have enough time in the day to consider the papers in the court file, prior to the hearing. This leads to the inevitable result that issues may be overlooked or misunderstood in the court process. If parties decide to settle after all of their cards have been placed on the table in the deposition process, it could save not only time for litigants, but thousands of rands in legal costs.

E-Discovery

Currently in South Africa, Rule 35 governs the discovery process. This Rule provides that any party to any action may require any other party to make discovery on oath within twenty days of all documents and tape recordings relating to any matter in question in such action which are or have at any time been in the possession or control of such other party. Erasmus provides that the word “document” is not defined in the Rules which means it must bear its ordinary meaning, namely ‘a piece of written, printed or electronic matter that provides information or evidence or that serves as an official record’. Erasmus states that when compared with foreign developments, it is clear that the current wording of this subrule does not adequately provide for discovery of information created, stored and retrieved primarily in electronic form, and it should be appropriately amended.

In the United States, the Federal Rules of Civil Procedure (FRCP) have incorporated the concept of e-Discovery. Electronic discovery, commonly referred to as “e-discovery,” is “the process of identifying, collecting, filtering, searching, de-duplicating, reviewing and potentially producing Electronically Stored Information that relates to pending or reasonably anticipated litigation”.

The FRCP provide that a party must produce “any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations – stored in any medium from which information can be obtained either directly, or if necessary, after translation by the responding party into a reasonably usable form.” It is accordingly evident that the FRCP are far broader than our South African equivalent.

The benefits of amending our current Rules is that it blows the doors wide open on the extent of evidence that can be retrieved for purposes of trial and it promotes transparency. The particular benefits of electronically stored information are mobility, portability and searchability, volume and ease of replication, together with the existence of hidden metadata. Access to electronically stored information in a data system that can be discovered will allow attorneys to thoroughly prepare for trial with all relevant evidence at hand.

The digitised world is ever-evolving and the South African court systems need to keep up with international best practice. Whilst it is certainly commendable that the courts have recently implemented CaseLines on the journey to a paperless system, there is still much room for development.

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