A judgment by Senior Assistant Registrar Yeong Zee Kin in the Singapore High Court last week shows the commonality in court-led management of e-Discovery between common law jurisdictions. The case is Deutsche Bank AG v Chang Tse Wen and others  SGHC 125 and it concerns the Electronic Discovery Practice Direction 3/2009 which came into effect in Singapore on 1 October 2009. Master Whitaker and I were there a few days later, and Yeong Zee Kin was a speaker at that conference. What he says in his judgment was foreshadowed by what he said at the conference.
Before turning to the judgment itself, I take this opportunity to emphasise how small this world is quite apart from the commonality between the laws and practices in each place. The judgment was delivered on 26 April. I found out about it on 28th of April because Serena Lim of BiziBody in Singapore tweeted about it. I re-tweeted it, passed the link to a few people with a specific interest in the practice directions of other jurisdictions, and put it into my “things to write about” queue. This morning, Aaron Bleasdale of Epiq Systems in Hong Kong dropped me a line to make sure that I had seen it. Yeong Zee Kin and I are both speakers at the InnoXcell eDiscovery conference in Hong Kong on the 7 and 8 July. This combination of formal judgments cross-referring between jurisdictions, instant and worldwide communication, international conference platforms, and active interest from all over the place speaks for itself.
The judgment involves a not uncommon story of one party keen to give disclosure electronically whilst the other is not, apparently on the basis that he was already poised to give disclosure on paper and considered that e-Discovery would multiply his costs.
The Singapore Practice Direction works on an opt-in basis. Senior Assistant Registrar Yeong Zee Kin was clear when we heard him speak last October about two things – that the practice direction made no new law, and that one party’s refusal to opt in did not supplant the court’s right to order that discovery be given electronically. That is at the heart of his judgment. After considering the status of a practice direction, he says (paragraph 14):
PD 3/2009 does not set out to change the law on discovery; it merely sets out procedures which parties have to comply with when dealing with discovery of electronically stored documents. Where the court already has powers to order that parties comply with a protocol when discovery of electronically stored documents is given, PD 3/2009 does not subtract from these powers. However, any failure to comply with the requirements of PD 3/2009 may be relevant when the court has to exercise its discretion.
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. We used to get similar arguments in the UK about our practice direction to Part 31 CPR which says that parties “should discuss” and “should cooperate” (paragraph 2A.2 and 2A.3) when it was sometimes asserted that “should” means something less than “must”. We now have case law (not least Digicel) which undermines any such (frankly fatuous) argument, and you will not find the word “should” in the proposed new practice direction. In any event, whilst the disclosure rules in our Part 31 are important, the overriding objective does what it says on the tin – it overrides. In addition to its express powers, the court may by Rule 3.1(2)(m) “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective” and any argument as to the relative status of a rule and a practice direction is trumped by the power given to the judge in Rule 3.4(2)(c) to strike out a case equally where “there has been a failure to comply with a rule, practice direction or court order”. The argument run by the unwilling party in the Deutsche Bank case seems to me to have had much the same merit as the arguments about “should” in our PD.
The Deutsche Bank judgment is important for two other reasons. The first is the confirmation of the right of a party to inspect the original of a document which exists electronically. That was in fact an express right under the old UK Rules of the Supreme Court and, as Jonathan Maas of Ernst & Young never tires of pointing out, it is one of the curiosities of the 1999 CPR that this provision disappeared. Jonathan is right, and arguments seeking to deny opponents this right are as unmeritorious as reliance on the word “should” in our practice direction: except where the costs of producing the original are disproportionately high, one cannot imagine the court declining to order production of an original electronic document.
The other point of significance arising from this judgment comes in paragraph 24, which begins “To my mind, I think that the premise that electronic discovery is only beneficial to cases where documents are voluminous needs to be re-examined”. There are cases, the Senior Assistant Registrar says, where the costs of a full forensic collection may be disproportionate to the case, but “Once the cost of forensic acquisition is obviated, the purportedly high cost of electronic discovery diminishes significantly”. I would qualify that by saying that, since data has to be collected somehow, the expenses of a forensic collection can only be judged to be disproportionate if you know what they are and have compared them with the costs of any other means of collecting the data.
Look also at paragraph 25 which begins:
When the preponderance of documents these days originates and is stored in an electronic form, it is desirable that discovery be given in an electronic form as well, preferably in the native format. Granted, the benefits of electronic document review software platforms that are available are more readily appreciated where documents under review are voluminous. However, this should not lead to the opposite conclusion that little or no benefit will be reaped if the volume of documents is comparatively lower such that the costs of deploying a document review software platform is not commensurate with the benefits.
Do not conclude, in other words, that small cases will not warrant electronic document review.
Lastly, the judgment includes, at paragraph 39, a description of the spirit with which parties should approach this aspect of litigation:
Had the Plaintiff responded to the Defendant’s attempt at good faith collaboration in the right spirit, it should have put forward a similar list. Parties could then have worked out an agreement on what will be disclosed during general discovery and the categories for which it will object to disclosure. In a suitable case with voluminous electronic documents, parties may even agree to conduct general discovery in stages by, for example, using agreed sets of keywords to conduct reasonable searches on the e‐mails, computers or notebooks of a group of identified persons whom parties consider to be central to the issues in dispute. After disclosure has been given of electronic documents identified in this stage, parties may then explore the extent of discovery which may be required in subsequent stages. A handy summary of discovery in stages is provided by the Senior Master Whitaker in Goodale & Ors v The Ministry of Justice & Ors  EWHC B41 (QB), at :
“I am quite content that the four key witnesses that have been named by the claimants are the right people whose ESI needs to be searched. Numerous other witnesses and custodians of documents have been mentioned but in a case like this, I do not think that searching the ESI of all of them immediately is the right way to go about this exercise. In terms of a search one should always start with the most important people at the top of the pyramid, that is, adopt a staged or incremental approach. Very often an opposing party will get everything they want from that without having to go down the pyramid any further, often into duplicate material”.
Apart from clarifying that “opt-in” is not the same as “voluntary in all circumstances”, this judgment does not make any new law. Its importance lies in the signal it sends to parties and their lawyers. The UK’s practice direction has been treated as voluntary since it passed into the rule book in 2005, not because it is in fact optional, but because it has simply been ignored by lawyers and judges alike. We will remedy that with the new practice direction. It is clear from this judgment that there will be no ignoring the equivalent practice direction in Singapore.
Be clear that neither the UK nor the Singapore practice direction requires parties to give disclosure electronically in any particular case. What is required is that the parties and the court equip themselves to make decisions as to what is the most proportionate course. The Senior Assistant Registrar urges re-examination of “the premise that electronic discovery is only beneficial to cases where documents are voluminous”. This proposition requires no authority – even if you treat “beneficial” as merely synonymous with “cheaper” (and thus ignore all the other advantages) it is not hard to establish what the costs are likely to be of alternative ways of handling discovery. The only “authority” which is needed is the authority of the judge charged with case management to enforce the duty to consider the options.