E-Discovery Developments in Singapore & Hong Kong (Tip Of The Month: September 2013)

Keywords: e-disclosure, obligations, discovery, Order 24, Practice Direction 3, PD3, data, recovery

Scenario

A global financial institution with headquarters in London and New York, conducts banking operations throughout Southeast Asia. The financial institution requires the resolution of commercial banking disputes in a "familiar" common law system of courts. It chooses to operate in the two major Asian financial centers of Singapore and Hong Kong. The financial institution's internal compliance team wishes to ensure that it is in a state of readiness to comply with e-disclosure obligations in these two jurisdictions.

Disclosure Obligations in Singapore

The rules and practice of the Supreme Court of the Republic of Singapore are derived from those that traditionally governed civil procedure in the Courts of England and Wales. Discovery has traditionally been based on the former Order 24 of the former Rules of the Supreme Court in England and Wales.

Singapore was the first common law jurisdiction in Southeast Asia to introduce formal procedures for the disclosure of electronic documents, by way of Practice Direction 3 of 2009 (PD3). PD3 provided for an "opt-in" framework under which parties could agree, or the Supreme Court could order—on application by a party or of its own motion—that discovery, inspection and production of electronic copies of electronically stored documents take place in a proportionate and economical manner, based on a "reasonable search" for classes of electronic documents identified by search terms or phrases, limited by storage locations, media or devices and time periods. Limits were placed on recovery of data that is not reasonably accessible, and a suggested e-discovery protocol was prescribed.

Some two and a half years after PD3 was introduced, changes were implemented to the Supreme Court's Practice Directions by Amendment No. 1 of 2012. This followed a review of the discovery process and took into account feedback from a public consultation exercise and the relevant stakeholders, with the aim of streamlining the e-discovery procedures. The Court's interpretations of PD3 in a number of cases were also formalized.

The status of the Practice Direction on discovery was changed from an "opt-in" framework to one that the Court can apply whenever appropriate, without consent of the parties, particularly in relation to certain categories of cases listed in the Practice Direction. The amendments place even greater...