By the time you read this, you would have had already sent and received numerous emails today. This is hardly surprising since emails are an accepted and convenient mode of written communication.

Given the ease and speed at which emails are sent, it is not unimaginable that in any given civil litigation, there may be thousands if not tens of thousands of emails which may be relevant to the issues before the court and which are thus discoverable.

In recognition of the potential difficulties that parties to civil proceedings may face in having to give discovery of and reviewing a voluminous amount of emails and other electronically stored documents, the Singapore Supreme Court issued Practice Direction No. 3 of 2009 ("Practice Direction") in relation to the discovery and inspection of electronically stored documents which took effect on 1 October 2009.

Good faith collaboration

One of the key points stipulated in the Practice Direction is that parties are encouraged to "collaborate in good faith and agree on issues relating to the discovery and inspection of electronically stored documents" which may include the scope or any limit on the documents to be given in discovery.

The parties may in this regard agree on an electronic discovery protocol such as that set out in the appendix to the Practice Direction; if the parties are unable to agree on such a protocol, the party seeking discovery of the electronically stored documents may apply for an order.

The Deutsche Bank decision

It was clarified by the High Court in its April 2010 decision in Deutsche Bank AG v Chang Tse Wen and others [2010] SGHC 125 ("Deutsche Bank") that the Practice Direction is sufficiently broad to encompass both a situation where there is a pre-existing agreement to adopt an electronic discovery protocol but disputes remain over some of its terms as well as a situation where the parties are unable even to agree to adopt an electronic discovery protocol.

In Deutsche Bank, the defendant had applied for an order that parties comply with an electronic discovery protocol for general discovery. The plaintiff objected to the application on the basis that the Practice Direction applies only where the parties have agreed to adopt such a protocol and, since this was not the case, there was no basis for the application. The plaintiff further argued that the adoption of such a protocol would unfairly prejudice them as they were ready to proceed with general discovery by providing a list of documents and photocopies of the same in the traditional manner.

The court rejected the plaintiff's arguments and disagreed with the plaintiff's assumption that it would have discharged its obligations to give inspection of the electronic documents by providing printed copies of the same. The court was of the view that it was a litigant's obligation to provide the best evidence and where the original is available, to produce the original in evidence and for inspection.

The Fermin Aldabe decision

The High Court had taken a similar view in the earlier case of Fermin Aldabe v Standard Chartered Bank [2009] SGHC 194 ("Fermin"). There, the court stated that where documents were stored in an electronic form, it was preferable that copies be provided in an electronic form and that "given the vast amount of electronically stored documents that are discovered these days during the course of litigation, the practice of giving copies of these documents in print or as printouts should be discouraged".

The court in Fermin recognised that there may be cases (as was the situation in Fermin), where there may be an issue of the exchange format for the emails for which discovery was sought, for example, where the format was not accessible to the party entitled to copies of the documents.

It was thus necessary for parties in such cases to meet for the purpose of discussing such technical issues and to carry out the spirit of the Practice Direction, which is to collaborate in good faith and agree on issues relating to the discovery and inspection of electronically stored documents.

The court noted that such bona fides discussions between the parties may avoid wastage of time and resources and avert legal costs.

Conclusion

The Practice Direction and the above cases highlight the evolving practice and nature of discovery and inspection of documents in civil litigation and are timely given the rapid change in the manner of written communication in recent times.