The use of electronic discovery and cloud computing technology by lawyers in practice: lessons from abroad

Abstract

In the present electronically driven world, it is vitally important for lawyers to understand advancing or new technology and to have adequate computer literacy in order to best represent their clients. The so-called “e-information explosion” requires lawyers to request, produce and manage electronic documents in order to protect their clients’ interests and to obtain a strategic advantage over their opponents. Lawyers or legal practitioners should adapt to technological changes, develop an awareness of the unique challenges posed by the advances in technology, and embrace technology’s role in both their practices and the legal system. This article examines issues pertaining to electronic discovery and cloud-computing technology in civil practice in South Africa, the United States of America and the United Kingdom. The article also examines current electronic discovery (e-discovery) practices and the use of cloud-computing technology in the United States of America and the United Kingdom to ascertain whether useful lessons can be gleaned from these jurisdictions for possible incorporation into South African law. The study notes that, while South African law has taken great strides to address advancing technology, useful lessons from abroad can be adopted such as, inter alia, the need for greater preservation of electronic evidence; the use of a wider definition of the term ‘document’ to include all types of electronic information and future technological developments; the amendment of the rules to include the discovery of electronically stored information; the use of the proportionality principle in trials, and the incorporation of the cost-shifting regime. The article concludes that lawyers need to learn more about relevant law such as the ECT Act and POPI, and embrace advancing technology more enthusiastically, yet responsibly, in order to succeed in their new competitive and changing legal environments and to provide the best service for their clients.