The Supreme Court of Singapore Practice Direction No. 3 of 2009 (“PD3/2009”) provides an opt-in protocol (the “Protocol”) for electronically stored documents (“ESD”) to be inspected and provided in their native format. The Protocol is particularly useful where discoverable ESD in a particular case are voluminous. The provision of documents in electronic format has the additional advantages of enabling key word searches to be conducted, and preservation of document metadata which can contain valuable information.
In Deutsche Bank AG v Chang TseWen & Ors  SGHC 125 (“Deutsche Bank”), the High Court had the opportunity to clarify its approach to PD3/2009. This was an action for recovery of sums due under a loan facility. The Defendant counterclaimed for misrepresentation and breach of fiduciary duties and duties of care and skill.
The Plaintiff objected to the Defendant’s application under PD3/2009 on the ground that, by its opt-in nature, PD3/2009 applies during general discovery only where parties have agreed to adopt an electronic discovery protocol. This argument was rejected by the court.
The court clarified that the real meaning of the “opt-in” nature of PD3/2009 is that only one party needs to opt-in for the Protocol to apply. In other words, even where there is no mutual agreement between the parties, one party can opt into the electronic discovery framework by making an application under PD3/2009. The applicant must, inter alia, demonstrate efforts made in good faith collaboration with the other party. The court also held that the Protocol applies during both general and specific discovery.
The court then went on to consider if it should exercise its discretion to order compliance with the Protocol. The court was of the view that electronic discovery is beneficial, not only where documents are voluminous, but also where, a significant proportion is in electronic form. Even though there were only about nine files of documents (including about five to six files of emails), electronic discovery was ordered.
The court took into account the international dimension of the case which rendered the originals of the electronic documents not readily producible for inspection, and also that neither the values of the claim (USD 1.8 million) and counterclaim (USD 48 million) nor financial positions of both parties would get in the way of electronic discovery. The court also rejected the Plaintiff’s objection to electronic discovery on the ground that its solicitors lacked the requisite software to access the Plaintiff’s emails.
This case suggests that the Singapore courts will be inclined toward granting applications for electronic discovery as long as a not insignificant proportion of relevant documents are in electronic form, and the applicant has made an attempt at good faith collaboration with the other party. Seeing that electronic discovery has numerous advantages, paperless discovery should be considered whenever ESD is involved.