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What is eDiscovery?

To understand eDiscovery, we need to understand what Discovery is.

A party to litigation has the duty to disclose to the opposing party, any documents within its possession, custody or power that are relevant to the dispute. This process is called "Discovery" (or "Disclosure" in other jurisdictions).

For more information on Discovery, please click here.

In simple terms, eDiscovery is the giving of Discovery of electronically stored documents (eDocuments), for example :-
  • email
  • databases
  • backup tapes / copies
  • sound recordings stored as digital computer files (MP3)
  • digital video recordings
  • storage media (CD-ROMs, DVD-ROMs, flash drives, SD cards, disk drives)
Is eDiscovery complicated or expensive?

Due to the wide use of eDocuments in business, and the various locations (e.g. notebooks, desktops, portable storage devices, the Internet (also known as the "Cloud") in which eDocuments or other Electronically Stored Informaton (ESI) may be found, eDiscovery often appears more complicated and expensive than giving simple Discovery of hard copy documents stored in a physical office file.

However, if the eDiscovery process is conducted in a logical and methodological manner, aimed at reducing labour and costs, it should not be more complicated or expensive than giving simple Discovery of hard copy documents.

eDiscovery becomes complicated or expensive when litigants do not understand eDiscovery and how to prepare for it or implement it i.e. they have no plan or team to oversee eDiscovery issues.

For the benefits of building an in-house eDiscovery team and how to build one, please click here.

eDiscovery does not mean printing out your emails or soft copies

Even today, we often see parties to litigation giving discovery of eDocuments by printing out the eDocuments stored in their computers e.g. emails. This practice is no longer acceptable as the norm.

The Singapore High Court has now clarified that parties should not print out their eDocuments for purposes of giving Discovery. Emails and other eDocuments should as far as possible be disclosed to the other party in their native format i.e. in soft copy form.

"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. 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."

- Deutsche Bank AG v Chang Tse Wen and others [2010] SGHC 125 at [25]

One clear benefit from this is that emails and other eDocuments can be stored en masse on a DVD ROM or USB flash drive and handed over to the opposing party in discovery. Boxes or arch files of documents no longer need to be exchanged. This saves a great deal of time and costs, for both litigants and their lawyers.

Why is providing proper eDiscovery important?

If a party fails to meet its Discovery (or eDiscovery) obligations, its claim or defence may be struck out by the Court, resulting in that party losing its case.

Two cases illustrate this point :
  1. In Alliance Management SA v Pendleton Lane P [2008] 4 SLR(R) 1, the Singapore High Court struck out the defendant's defence because he failed to produce in discovery the original hard disk drive that was in his company notebook computer.
  2. In K Solutions Pte Ltd v National University of Singapore [2009] 4 SLR(R) 254, the Singapore High Court struck out the plaintiff's statement of claim and defence to counterclaim after finding that it had not complied with its discovery obligations in relation to various emails that were deleted from its computer system even though litigation was anticipated.
These cases underscore the need for eDocument preservation to be put in place from the time that litigation is anticipated.

eDocument preservation

As the above cases illustrate, it is very important for a litigant or a potential litigant to preserve its eDocuments or ESI.

Failure to preserve documents (or eDocuments) that are relevant to a case, may result in a party losing its case in court.

In many companies, the preservation of eDocuments starts with what is today known as a Legal Hold or Litigation Hold.

Implementing a Legal Hold / Litigation Hold involves giving notice to all persons within the company who may have relevant documents that they should preserve, and not delete, all hard copy documents and eDocuments that may be relevant to a particular dispute.

For more information on Legal Holds / Litigation Holds, please click here.

Benefits of eDiscovery

Working with documents in an electronic format enables the user inter alia :-

  • To narrow a whole mass of eDocuments down to a manageable size e.g. based on their date, creator, recipient and content (keywords).
  • To sort eDocuments e.g. by date based on their date, creator, recipient and content (keywords).
This ability allows the user (the lawyer and/or the client) to find and organize eDocuments based on the issues in dispute.

What used to be done manually, through a laborious process that incurred a substantial amount of lawyers' effort (and their associated time-costs), can now be done much more quickly, using eDiscovery software solutions.

More information on eDiscovery software solutions can be found on the Internet.

The Singapore Supreme Court eDiscovery Practice Direction

Recognizing the significance of eDocuments and eDiscovery to litigation in Singapore, the Singapore Supreme Court issued Practice Direction No. 3 of 2009 (eDiscovery PD) This became Part IVA of the Supreme Court Practice Directions. Part IVA was amended in 2012 to introduce improvements to the scheme of eDiscovery in Singapore.

The eDiscovery PD provides parties to litigation in Singapore with a framework for eDiscovery, whether either party chooses to explore eDiscovery or the Court takes the view that eDiscovery should be ordered.

"The eDiscovery PD was introduced in 2009 with the aim of providing guidance on how existing legal principles pertaining to the discovery process could be applied in respect of electronically stored documents. One of its objectives is to promote the exchange of electronically stored documents in a text searchable electronic form (in lieu of printed copies) so that parties may capitalise on the twin benefits of digitisation, viz, the ability to run keyword searches on the documents in question as well as easy management of the same. This also has the added benefit of avoiding unnecessary photocopying or printing of electronically stored documents. The eDiscovery PD also prefers the inspection and supply of copies of electronic documents in their native formats without any interference with the documents' "metadata information". Metadata literally means "data about data". Paragraph 43A(3) of the eDiscovery PD describes "metadata information" as "the non-visible and not readily apparent information embedded in or associated with electronically stored documents". Metadata information may sometimes be relevant at trial, for instance, when data relating to the authorship history, date of creation and modification of a particular file or document is in issue. Paragraph 43G of the eDiscovery PD prohibits the deletion, removal or alteration of metadata information internally stored in the native format of discoverable electronically stored documents without consent by the relevant parties or leave of court."

- Justice Lee Sieu Kin in Sanae Achar v Sci-Gen Ltd [2011] SGHC 87 at [21]

To see what eDiscovery entails in Singapore, and to access the latest version of the eDiscovery PD itself, please click here.

How is eDiscovery carried out?

Ideally, the eDiscovery process starts long before there is any anticipated litigation. It starts with having a system to store and manage eDocuments and ESI. This is known broadly as Information Management, and it is the first stage eDiscovery.

The following diagram - courtesy of - illustrates the eDiscovery process from start to finish :-

For more information on each stage in the eDiscovery process, please click here.

More information?

Should you require more information on eDiscovery, please contact us by clicking here.

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