Avoiding Sanctions at the E-Discovery Meet-And-Confer in Common Law Countries

The rules of civil procedure in common law countries have been amended to better deal with the requirements of electronic discovery. One of the key changes in case management is the scheduling of a meet-and-confer session where the parties to litigation must meet early in the case before any discovery procedures have begun to exchange information regarding the nature, location, formats, and pertinent facts regarding custody and control of a party’s electronically stored information (ESI). Failure to abide by the rules and participate in good faith at the meet-and-confer session can have dire consequences for the parties and lawyers involved. The authors discuss the importance of creating and maintaining an ESI data map as a means to demonstrate good faith and effectively comply with the requirements of the meet-and-confer

Avoiding Sanctions at the E-Discovery Meet-And-Confer in Common Law Countries

The rules of civil procedure in common law countries have been amended to better deal with the requirements of electronic discovery. One of the key changes in case management is the scheduling of a meet-and-confer session where the parties to litigation must meet early in the case before any discovery procedures have begun to exchange information regarding the nature, location, formats, and pertinent facts regarding custody and control of a party’s electronically stored information (ESI). Failure to abide by the rules and participate in good faith at the meet-and-confer session can have dire consequences for the parties and lawyers involved. The authors discuss the importance of creating and maintaining an ESI data map as a means to demonstrate good faith and effectively comply with the requirements of the meet-and-confer

Recovery of electronic documents: time for guidance?

In this follow-up to the Commercial Court Conference 2018, an edited version of an article published last month on Journal online, Pauline McBride argues that there is a need for guidance dealing specifically with recovery and disclosure of electronic documents in commercial actions

Qualcomm v. Broadcom: Implications for Electronic Discovery

Electronic discovery has been the source of difficult challenges for courts, lawyers, and litigants from the beginning. The methods, document formats, and scope of electronic discovery have all contributed to the difficulties encountered. The seminal case in the United States that underscores the nature of the difficulties and challenges facing lawyers and courts in electronic discovery is Qualcomm v. Broadcom. While the case has been cited as an example of the ethical issues facing lawyers who do not follow the rules of discovery, the lessons go well beyond ethical issues. All major common law countries, including Australia, New Zealand, United Kingdom, Canada, South Africa, and the United States have recently updated their rules of civil procedure regarding the electronic discovery process in order to facilitate the electronic discovery process. The authors offer five key lessons to be drawn from this case including the importance of efficiently managing electronic discovery, the importance of the meet-and-confer discovery conference, the importance of retaining an electronic discovery expert, the importance of being proactive in the discovery process, and recognizing the limitations of relying entirely on key word searches

The use of electronic discovery and cloudcomputing technology by lawyers in practice: Lessons from abroad

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

Intentional harm, accessories and conspiracies

Assesses the principles about conspiracy tort which can be derived from OBG Ltd v Allan (HL), Customs and Excise Commissioners v Total Network SL (HL) and Fish & Fish Ltd v Sea Shepherd UK (SC), including how they clarify its relationship with the tort of intentional infliction of harm by unlawful means and the concept of accessory liability. Suggests why criminal law and economic torts are unhelpful for determining civil liability for conspiracy

Assessment of agricultural information needs in African, Caribbean and Pacific (ACP) States for CTA’s Products and Services: Phase 1: Caribbean: Country report: St Lucia

The objectives of this study are as follows: - to identify agricultural information needs of key actors / beneficiaries for CTA products and services; - to identify needs of potential actors / beneficiaries of CTA activities and services in terms of building capacity for information and communication management; - to identify potential partners / beneficiaries for CTA activities and services; - to develop some baseline data to facilitate subsequent monitoring activitiesThis study commissioned by CTA aims to identify agricultural information needs of key actors / beneficiaries for CTA products and services, potential actors ..and, to develop some baseline data to facilitate subsequent monitoring activities

Promoting Proportionate Justice: A Study of Case Management and Proportionality

This work examines the principles of proportionality and active case management that were introduced by the Civil Procedure Rules 1998 (the ‘CPR’). The aim is to consider precisely what ‘proportionality’ means in a case management context, how it has been applied to date, and whether there is any need or scope for improvement. Consideration is given to proportionality as a general principle of law. This establishes a conceptual background against which to consider the principle in an English procedural context. After reviewing the introduction and development of both proportionality and active case management in English civil procedure, case management proportionality is placed against that background. In doing so, and in identifying similarities and differences, the principle is given greater definition. The heart of this work is a review of case law dealing with case management issues. This identifies inconsistencies in both how proportionality has been applied and the extent to which courts have taken on the management role required of them by the CPR. It also highlights the fact that litigants and their legal representatives retain a crucial role in ensuring that litigation proceeds in a proportionate manner, but that in many instances that role is not fulfilled. The review also provides a wealth of information that may assist in tackling these issues and inconsistencies. That information, together with points drawn from a review of management techniques in other common law jurisdictions, is taken forward into some proposals for the improvement of case management proportionality. Those proposals fall into two general categories: the publication of guidance and amendments to the CPR. The aim is to provide practical suggestions that may have a tangible impact on improving the consistency with which case management proportionality is applied, and thus improving the provision of access to proportionate justice

E-Discovery\u27s Threat to Civil Litigation: Reevaluating Rule 26 for the Digital Age

The Federal Rules of Civil Procedure, even though they were amended in 2006 specifically to address the costs and scale of ediscovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants\u27 cases. This Article proposes that the solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery. This rule should be abandoned in favor of a rule that would equally distribute the costs of discovery between the requesting and producing parties