Singapore blazes into e-discovery of evidence

The Singapore courts operate the dispute resolution mechanism by the application of the Rules of Court, as well as various practice directions issued and compiled from time to time.

An important part of the litigation process is the discovery process, where parties in the course of preparation leading to the trial, seek to uncover evidence held by other parties. The main danger is that the courts will not allow discovery to be used as a "fishing expedition"--to gather more than what is fair.

Increasingly, a lot of litigation involves some element of electronic document--e-mail, SMS messages, to even entire hard disks and computers. You can imagine how unwieldy and time-consuming a discovery request can be.

The evolving of the law to handle these new materials, coupled with a logistical methodology, resulted in this new practice direction.

Therefore, the courts have now introduced a protocol to handle discovery of electronic documents. These are to be produced in their native format for inspection or if copies are requested, in the specified reasonably usable file formats.

If inspection of hard disks and servers and further forensic work is required, then a specified order will need to be applied for. In this case, a joint expert may be appointed to conduct the search and to review the material. Files in temporary folders including the Recycle Bin folder or Trash folder, are considered to be within the scope of general discovery whereas deleted files are not.

I believe Singapore is the first Asian jurisdiction to specifically address the discovery of electronic material, after the American, U.K. and Australian courts have made various moves toward doing so. The adoption, which takes effect on Oct. 1, signals that increasingly, electronic documents are going to be used in litigation, and that lawyers and litigants need to be prepared to handle them.

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Bryan Tan

Called to the Singapore and English Bars, Bryan Tan has practised in two of Singapore’s largest law firms and an international law firm. Bryan led many industry firsts including the first mass e-mail defamation case in the world, Singapore’s first publicised telecoms competition dispute, a pan-Asian co-branded travel portal, the first privately-funded cable landing project in Singapore and the world's first registrar-level domain name dispute. His areas of practice include information technology, telecommunications, biotechnology and bioinformatics, Chinese intellectual property, entertainment law and corporate work. He is also an author of Halsbury's Laws of Malaysia: E-Commerce. He also co-wrote the Singapore chapter of 'Digital Evidence' with Prof. Daniel Seng and is writing Halsbury's Laws of Singapore: E-Commerce.