Hong Kong Court Announces a Pilot Scheme for Electronic Discovery
The Hong Kong Judiciary has announced a pilot scheme1on electronic documentary discovery in the Commercial List of the Court of First Instance, which will come into force on September 1, 2014, with a review
planned within a year of operation (the “Scheme” or “Pilot Scheme”).
The purpose of the Pilot Scheme is to provide a framework for reasonable, proportionate and economical
discovery of electronic documents, and to encourage and assist the parties to reach agreement on how discovery
can be done.
Discovery in Hong Kong
Under the existing discovery rules, which make no distinction between discovery of paper on the one hand, and
electronically stored information (“ESI”) on the other, the parties mutually exchange documents which are
relevant or potentially relevant to the matters in dispute. The process typically involves the parties in a mutual
exchange of lists of documents, followed by inspection and the provision of copies. The exercise is designed to
enable the parties to obtain information about their opponent’s case prior to trial, such that both parties know
the issues to be addressed, and what documentary evidence is available, in advance, thereby avoiding trial by
The ordinary rule is that the parties have to disclose all documents that are within their possession, custody or
power. The obligation is to disclose not only documents which are directly relevant to the issues, but also
documents containing information which may enable a party either to advance his own case or to damage that of
his opponent, or which may fairly lead him to a train of inquiry which may have either of those two
. This onerous obligation is recognized as a major contributing factor to the rising costs of
E-discovery Pilot Scheme
Motivations for the Pilot Scheme include the “Underlying Objectives”
introduced by Hong Kong’s 2009 civil
justice reforms. Those objectives include cost-effectiveness, speed, proportionality, procedural economy and
fairness in respect of the Court’s civil procedure.
PD SL1.2 - “Pilot Scheme for Discovery and Provision of Electronically Stored Documents in Cases in the Commercial List”.
Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882) 11 QBD 55 (CA)
Reform of the Civil Process in Hong Kong, Butterworths Asia, 2000, p.155, at 162-166
4 Order 1A, rule 1 of the Rules of High CourtAsia Disputes and Regulatory Update
The Underlying Objectives mandate the Court actively to manage cases by various methods such as “making use
of technology” and “giving directions to ensure that the trial of a case proceeds quickly and efficiently”
A feature of the Pilot Scheme is that it is non-prescriptive in nature, and encourages, indeed requires, the parties
to cooperate at an early stage of the litigation to facilitate the disclosure of ESI.
The Pilot Scheme is intended to apply to all civil actions in the Commercial List from September 1, 2014
provided the claim or counterclaim exceeds HK$8 million (roughly US$1 million) and there are at least 10,000
documents to be searched for the purposes of discovery. In some circumstances it may also be applied to cases
outside the Commercial List.
Under the Scheme, discovery is limited to documents which are “directly relevant” to an issue arising in the
proceedings. Hence, unlike in ordinary discovery, the scope is more restrictive. Given the amount of ESI that is
generated in modern day commerce, this more limited form of discovery is intended to ensure that discovery is
conducted in a proportionate and cost-effective manner. Any request for additional discovery will need to be
justified on an application for specific discovery supported by evidence demonstrating that such evidence is
Electronic Documents Discovery Questionnaire
The Pilot Scheme introduces a requirement for each party to complete an Electronic Documents Discovery
Questionnaire (“EDDQ”), which is intended to facilitate early communications between the parties on their ediscovery obligations. It is designed to facilitate mutual exchanges of basic information, such as the date ranges
of the disclosure, the custodians of documents, the forms of electronic communications and documents, the
information on any database system used by the party, the preservation of ESI, and also any anticipated
The EDDQ gives rise to significant “front-loading”. The parties’ EDDQs in draft form are required to be served
together with their respective Statements of Claim and Defence. Each party is then required to file their finalized
EDDQs with the Court no later than seven days before the 1st Case Management Conference (“CMC”) which
generally takes place within three months after close of pleadings in a case on the Commercial List.
The Reasonable Search
Given the volume of ESI in most commercial cases, it is not feasible for the parties to conduct a full review of all
available materials to ascertain their relevance for the purpose of discovery. Thus, the Scheme provides that the
parties are required to conduct a reasonable search of ESI in ways which are proportionate. The reasonableness
of the search depends on the following factors:
a. the number, availability and significance of the electronic documents;
b. the nature and complexity of the proceedings; and
5 Order 1A, rule 4 of the Rules of High CourtAsia Disputes and Regulatory Update
c. the ease and expense of retrieving any particular electronic document, taking into account factors
such as the accessibility, location and materiality of the document.
Depending on the circumstances, it may be considered reasonable for a party to conduct a keyword search using
appropriate parameters, supplemented if necessary by the use of automated searches with advanced techniques
such as concept searching.
In an appropriate case, a “staged approach” may also be adopted, with discovery initially being given in respect
of limited categories of documents, which can subsequently be expanded where necessary.
Lists and Production of Electronic Documents
Where discovery of ESI is involved, the requirement to serve Lists of Documents in the traditional way is
dispensed with. Instead, the list may be in the form of a computer generated file, as long as it is in a sensible and
In respect of document production, with a view to preserving metadata, the Pilot Scheme stipulates that the ESI
is to be produced in native format (e.g. Word or Excel), unless otherwise agreed by the parties or ordered by the
Court. If produced in different formats, the documents need to be word-searchable unless good reason is shown.
The Litigants’ Obligations
The following are the key take-away points for parties engaging in e-discovery under the Pilot Scheme:
1. The Court expects the parties to consider discovery issues as soon as litigation is contemplated.
2. The Court requires the parties to take steps to preserve documents, including any ESI. This applies in
particular to documents which might otherwise be deleted in accordance with a document retention policy or
in the ordinary course of business. ESI should be preserved in their native formats.
3. With the help of the EDDQ, the Court expects the parties and their legal representatives to discuss the use of
technology in the management of ESI for the purposes of discovery.
4. The Court also expects the parties to be technically competent to engage in meaningful discussions in
facilitating the discovery of ESI. Technical expertise in respect of e-discovery should be obtained if necessary
in order to address the following matters prior to the 1st CMC:
a. the categories of ESI that are within the parties’ control, or are contained in their computer systems
b. the scope of a reasonable search of ESI;
c. the deployment of techniques to reduce the burden and costs of discovery of ESI, such as keyword or
automatic searching, the elimination of duplicative documents, and the identification and dealing of
d. the preservation of ESI;
e. the formats in which lists of documents and the ESI are to be produced; and
f. the digitization of paper documents.Asia Disputes and Regulatory Update
5. The Court encourages the parties to agree among themselves the conduct of discovery by way of a discovery
protocol, a sample of which is provided in the Pilot Scheme. Any disputes about this shall be resolved at the
6. Further, the parties are encouraged to agree among themselves the basis of charging for or sharing the costs
of the discovery of ESI.
While the concepts introduced by the Pilot Scheme are not new6
, they do however represent a cultural shift from
the practice of adversarial discovery. Hopefully when the Court eventually introduces a “permanent” practice
direction on e-discovery, the practice of gamesmanship and unnecessary interlocutory applications on discovery
will be reduced, with resulting significant cost-savings.
If you have any questions regarding this update, please contact the Sidley lawyer with whom you usually work or
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The E-discovery Pilot Scheme is closely modeled on “Practice Direction 31B – Disclosure of Electronic Documents” under Part 31 CPR of the English High