Commentary on Modifications to PD3 - Supreme Court Practice Directions No.1 of 2012
The Court has recently issued several significant and extensive amendments to PD3of 2009, pursuant to Supreme Court Practice Directions Amendment No 1 of 2012.
While the modifications are significant and fairly extensive, possibly leaving the Bar to lament how the goal posts have moved yet again, these new amendments should be warmly received by those already familiar with PD3, for its codification of:
1. When to raise PD3 - Specific scenarios and more meaningful test of proportionality and economy;
2. More user friendly, better organized and less confusing nomenclature - Removal of "opt –in", substitution of "E-Discovery Protocol" with E-Discovery Plan, etc;
3. More comprehensive Sample E-Discovery Plan;
4. New Checklist of E-discovery Issues - to assist collaboration at general discovery;
5. Exchange of Electronic Copies - applicable even in non e-discovery cases.
For the full Commentary on The PD3 Modifications - CLICK HERE
CASE UPDATE: SURFACE STONE PTE LTD v TAY SENG LEON and ANOTHER [2011] SGHC 223
This case is interesting for the following reasons:
1. This is the first reported case on the discovery of a hard drive; and the High Court set out the factors to be considered when ordering discovery and inspection of "compound documents", ie content within hard disk drives or other storage devices that is comprised of several distinct and individual documents.
2. PD3 of 2009 was ordered even though neither of the parties had initiated PD3 of 2009.
Brief Facts: This case is brought by a Singapore company against its former sales director and shareholder for misuse of confidential information, unlawful interference with its business and acting against the interest of the company. The Plaintiff sought discovery and inspection of the 1st Defendant's laptop, hard disk and iPhone on the basis that the documents therein could lead to a train of inquiry resulting in directly relevant evidence.
Verdict: The Court granted the Plaintiff's application for discovery and inspection of the 1st Defendant's laptop and hard drive. They held that there were compelling grounds, on the facts presented by the Plaintiff's counsel, to find that discovery of the devices had the potential to set off the train of enquiry (resulting in evidence directly relevant and necessary for the resolution of the dispute). However the Court limited the extent of the discovery and inspection to relevant keyword searches and stipulated the implementation of an electronic discovery protocol.
Where documents sought to be discovered under the "train of inquiry" limb, there must be sufficient safeguards to prevent the abuse of the discovery process. In this case, the Court highlighted the need for specificity in the description of documents sought and the need to implement an inspection protocol.
1. On the Discovery of "Compound Documents" - The Court dismissed the Defendant's argument that the Plaintiff's failure to identify the classes of documents sought was tantamount to a "fishing" expedition, and held that the Plaintiff's application was made with sufficient specificity.
Where specific discovery is sought for compound documents, it may not always be practical for the applicant to set out each and every document classification of discrete documents sought. In this regard, the Court proposed that "a pragmatic method to achieve a meaningful degree of specificity would be for the parties to describe the discrete documents sought to be discovered with reference to keyword search terms.... as well as the custodians and repositories to run these search terms on."
The Court also observed that as a matter of practice, the applicant should seek discovery of discrete documents within the compound documents before or at the same time as the applicant seeks specific discovery of the compound document, notwithstanding the lack of an express requirement in the Rule of Court.
2. On the issue of whether an "inspection protocol" should be implemented - In this case where the parties did not opt-in to PD3 of 2009, the court held that there is, nevertheless, a rebuttable presumption that an inspection protocol is necessary.
The Court set out an analytical framework for determining when the presumption comes into play -
1. As compound documents contain voluminous discrete documents, a review of the compound document in its entirety (without parameters) is likely to be intrusive and prejudicial to the interest of the party giving discovery. Sufficient safeguards should be implemented to prevent abuse. The presumption is that an inspection protocol should be implemented to ensure that the requesting party "only has access to inspect documents that are found to be necessary for the conduct of his case and is not allowed to trawl through the entire database on the guise of an inspection order". The burden is on the party seeking inspection to convince the Court why an inspection protocol should NOT be ordered.
2. This presumption is based on the three principles of the law of discovery - Relevancy, Necessity and Proportionality. AR Shaun Leong made comparative examination of this principle across the common law jurisdictions of USA, England, Canada and Australia; concluding that there is an international trend towards proportionality - "the cases and rules discussed above have shown that there is a clear and undeniable international trend to restrict inspection of compound documents.... and [the Courts] would not hesitate to impose safeguards to ensure that the scope of inspection remained proportionate and reasonable."
3. In his concluding remarks, AR Shaun Leong observed that the Plaintiff's attempt to review compound documents manually to search for relevant documents (instead of an E-Discovery protocol in the form of Appendix E, Part 2 of PD3) is "akin to an attempt to sift through a sand-pile with bare hands".
Consultation Paper on "Review of Discovery in Civil Litigation" by Rules of Court Working Party, October 2011
On 19 October 2011, the Supreme Court of Singapore released a public consultation paper entitled “Review of Discovery in Civil Litigation” (the “consultation paper”). The review seeks feedback on various proposals by the Rules of Court Working Party (the “ROCWP”) to address concerns regarding time, costs and procedure employed in the discovery process, and in particular, the test to be applied in determining the scope of electronic discovery.
CLICK HERE to read the Consultation Paper
The Consultation Team at Litigation Edge submitted a response to the Consultation Paper to share our insights gained from on-the-ground experience of working with trial lawyers on a range of litigation matters. We proposed the adoption of a holistic approach that would encourage the development of a flourishing electronic discovery culture and widespread adoption of electronic discovery processes.
CLICK HERE to read our submission in response to the esponse to the Consultation Paper
For a summary of the salient points in the Consultation Paper and our Response - read our BLOG
SANAE ACHAR v SCI-GEN LTD [2011] SGHC 87 - 8 April 2011
This is an appeal by the plaintiff, Sanae Achar against the decision of the learned assistant registrar who allowed the application of the defendant, Sci-Gen Ltd, in Summons No 4406 of 2010 for specific discovery of documents pursuant to Order 24 Rule 5 of the Rules ofCourt (Cap 322, R 5, 2006 Rev Ed) heard before Justice Lee Seiu Kin in the High Court.
A Case Summary & Commentary will be published here shortly.
CLICK HERE to read the case
ROBIN DUANE LITTAU v ASTRATA (ASIA PACIFIC) PTE LTD [2011] SGHC 61 - 18 March 2011
This is an application under Part IVA of the Supreme Court Practice directions for the discovery and inspection of electronically stored documents (“Part IVA”) for the court to determine the keywords which are to be used to conduct a reasonable search for discoverable documents following the execution of an Anton Piller Order.
A Case Summary & Commentary will be published here shortly.
CLICK HERE to read the case
DEUTSCH BANK AG v CHANGE TSE WEN [2010] SGHC 125 - February 2010
Deutsche Bank AG v Chang Tse Wen and others [2010] SGHC 125 ("Deustsche Bank Case") is the first case on PD3 of 2009. The decision is by Yeong Zee Kin, SAR, who had very kindly joined us at our “Essential E-Discovery Course” in February 2010.
SIGNIFICANCE OF CASE:
1. This case clarifies important aspects of PD3; including the unusual “opt-in” feature and how practitioners should respond to e-discovery requests even if they do not wish to initiate PD3 themselves.
2. The case also illustrates the use of PD3 in a relatively commonplace dispute scenario of bank customer suing / counter-suing the bank
CASE SUMMARY:
Plaintiff is the Deutsche Bank (represented by Allen & Gledhill LLP) who is suing their customer for recovery of outstanding loans. The Defendant, represented by Rajah & Tann LLP counter-sued the Bank, its employee and former relationship manager for misrepresentation and breaches of fiduciary duties and duties of skill and care.
Allen & Gledhill argued against e-discovery of electronic evidence on the basis (inter alia) that
(a) Documents were NOT voluminous (9 arch files);
(b) Meta-data was not an issue;
(c) Their Client had provided them with the relevant documents in hard copies;
(d) Technical difficulties resulting from the fact that Allen & Gledhill’s office email software is Outlook (while their clients used Lotus Notes), and the incompatibility would increase the cost of e-discovery.
COMMENTARY:
SAR Yeong Zee Kin took the opportunity to dispel misconceptions about e-discovery, including the perception that e-discovery is (i) always costly; and (ii) only suitable for cases with voluminous documentation.
He also examined Allen & Gledhill’s assumption that providing printed copies of electronic documents is sufficient to discharge a litigant’s obligation to give inspection of electronic documents; and concluded that, “given the level of technology and connectivity today, the feasibility of providing a soft copy in the native format should be considered in preference to printed copies”
What I found particularly useful and interesting is the costs vs benefits analysis undertaken by SAR Yeong in the circumstances of this case; which included (i) international elements (the bank’s email servers are located in Hongkong and (ii) the fact that the Plaintiff’s solicitor (Allen & Gledhill) had already collated hard copies of the documents for discovery and would have to incur additional costs to provide the documents in its native format.
The judgment is well-structured, well-reasoned and written with minimal technical jargon. The decision also addresses what could potentially have been difficult issues in a fair, creative and pragmatic way, with cost issues being a foremost concern.
I only wish the decision had also involved a consideration of Rajah & Tann’s draft e-discovery protocol; especially in relation to their suggested keywords – but SAR Yeong has deferred that elucidation to the further discovery stage.
I won’t give the game away as to the outcome of the case and the orders made. Do take time to read it, as it will have a significant impact on your interactions with your client and opposing counsel; and on case management and strategy. CLICK HERE to read the judgment.
Enjoy!
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