Ruling Underscores Broad Scope of E-Discovery in Singapore

It takes two to tango but it takes only one to opt in to an e-discovery practice directive recently adopted by the courts of Singapore. That is the ruling of Senior Assistant Registrar Yeong Zee Kin of the Singapore High Court in the April 26 decision, Deutsche Bank AG v Chang Tse Wen.

The directive, Practice Direction No. 3 of 2009, was promulgated last year by the Singapore Supreme Court and took effect Oct. 1, 2009. It is described as providing “an opt-in framework for parties who wish to request and/or apply for discovery and inspection of electronically stored documents.”

In the Deutsche Bank case, the defendant suggested that the parties opt-in to the protocol and engage in electronic discovery. Plaintiff opposed the suggestion, taking the position that e-discovery was unnecessary, particularly because it had already prepared hard copies of many of the documents. Over the course of several meetings and pretrial conferences, the parties were unable to reach agreement on whether to engage in e-discovery.

The defendant then sought an order from the court requiring plaintiff to comply with the protocol and engage in e-discovery. Plaintiff opposed the order. Based on the protocol’s opt-in language, plaintiff argued, it applied only when both parties agreed to adopt it. In the absence of such an agreement, there was no basis for an order to compel, the plaintiff asserted.

In his analysis of the case, the registrar focused on paragraph 43B of the directive, which says:

If parties are unable to agree on an electronic discovery protocol, the party seeking discovery of electronically stored documents may apply for an order. The application must include a draft electronic discovery protocol and must be supported by affidavit providing an account of the parties’ attempts to collaborate in good faith to reach agreement on an electronic discovery protocol.

Does 43B apply only after the parties first agree to opt-in to the protocol but then are unable to agree on terms, as the plaintiff argued? Or does it apply even when the parties are unable to agree on the preliminary decision of whether to opt in, as the defendant asserted? These were the issues as the registrar framed them.

In siding with the defendant and ordering e-discovery, the registrar reasoned that courts have inherent power to order e-discovery and that the practice directive was intended only to supplement, not replace, that power. He wrote:

I prefer the construction put forth by the Defendant. PD 3/2009 in effect establishes a procedure whereby parties are required to make attempts to collaborate in good faith by engaging in discussions of electronic discovery issues before an application may be made under paragraph 43B. The opt-in nature of PD 3/2009 allows both parties to agree not to apply these procedures whether expressly or tacitly by conduct. Where one party wishes to make an application under PD 3/2009, he must comply with the procedures set forth therein and he must support his application with an affidavit providing an account of efforts made in good faith collaboration as well as include a draft electronic discovery protocol with his application. This construction does not subtract from the court’s power to order compliance with a protocol when discovery of electronically stored documents is ordered. It also gives effect to the opt-in nature of PD 3/2009: unlike other practice directions which apply to all cases, PD 3/2009 applies either on mutual agreement of parties or when one party opts into the electronic discovery framework by making an application thereunder.

Having decided that it was within his authority to order e-discovery, the registrar went on to consider whether the case warranted such an order. Among the conclusions he reached:

  • The fact that the case did not involve a voluminous quantity of documents did not argue against e-discovery. Rather, he wrote, “for the majority of cases, electronic documents should be produced in native format during discovery unless there is good reason not to do so, or parties agree otherwise.”
  • Providing printed copies of electronic documents for inspection did not discharge the plaintiff’s discovery obligation. “Where electronic documents are available, inspection should be given of the original and not merely a printed copy,” the registrar wrote.
  • The case’s international scope favored e-discovery, particularly where the documents were located in multiple jurisdictions.
  • The value of the claim and the relative financial positions of the parties should not be controlling factors in deciding whether to order e-discovery.
  • The fact that the plaintiff and its lawyers had already prepared hard-copy documents for discovery should not prevent electronic discovery. “To my mind, the workflow between solicitor and client and how they choose to manage documents passing between them should not be held up as a hurdle to the discovery process.”

In a concluding section of the judgment that will ring familiar to litigators in the United States, the registrar emphasized the important of good faith and candor among all parties in seeking to reach agreement on and collaborate in e-discovery. Such an approach, he said, would expedite the process and reduce the cost of litigation.

We thank Chris Dale for alerting us to this case via a post at The e-Disclosure Information Project. Dale found the case important for several reasons, he writes. Foremost among them is that it demonstrates the universal importance of strong judicial management in e-discovery matters. “I pick on this as the central part of the judgment because it is a good example of robust case management knocking down arguments which seek to duck the clear intent of a rule or practice direction by arguments about the precise effect of its words.” That is a sentiment lawyers worldwide can relate to.

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About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors Law.com's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.