Fermin Aldabe v Standard Chartered Bank

• Court: High Court (Singapore)
• Judge: Yeong Zee Kin SAR
• Judgment Date: 27 August 2009
• Neutral Citation: [2009] SGHC 194
• Citation: [2009] SGHC 194
• Published date: 02 September 2009
• Plaintiff Counsel: Fermin Aldabe, the plaintiff in person
• Defendant Counsel: Herman Jeremiah, Choo Hua Yi and Wong Wai Han (Rodyk & Davidson)
• Subject Matter: Civil Procedure,Disclosure of documents,Providing electronic copies of electronically stored documents,Enumeration of e-mails in lists of documents,Discovery of documents,Practice of providing copies and deferring physical inspection,Electronic discovery,Specific discovery of copies in backup storage,Specific discovery of earlier e-mails contained in e-mail messages discovery of which has been given,Discovery of electronically stored documents and databases,Inspection of electronically stored documents,Providing reasonable technical means and assistance,Evidence,Documentary evidence,When to raise issues relating to authenticity,Computer Output,When to consider issues under section 35 of the Evidence Act

27 August 2009

Yeong Zee Kin SAR:

Introduction

1 The present application was taken out by the Defendant for an order to allow it to give inspection of e-mails listed in its own List of Documents dated 19 June 2009 either by providing printed copies of the e-mails or by providing them in electronic form. Additionally, the Defendant applies for an order that authentication of such copies shall be by certification of the person responsible for the operation or management of the Defendant’s e-mail system pursuant to section 35(1)(c) and section 35(6) of the Evidence Act. This application raises interesting issues relating to the difference between discovery of e-mail messages and e-mail mailboxes, inspection of electronically stored documents (including metadata information) and the provision of copies of electronically stored documents within the discovery process.

2 In order to appreciate the rationale for this application, it is necessary for me to set out briefly the salient procedural history.

Procedural history

3 This is a claim by the Plaintiff against the Defendant for wrongful termination of employment. During pre-trial conference on 15 May 2009, directions were given for discovery to be carried out by exchanging lists of documents by 19 June 2009 and for inspection by 3 July 2009.

4 The Defendant filed its List of Documents (“LOD”) on 19 June 2009. On the same day, a copy of the LOD was served on the Plaintiff under cover of a letter wherein the Defendant proposed that parties exchange copies of documents listed in their respective lists of documents by 4 pm on 23 June 2009; if either party required inspection of any original documents thereafter, then arrangements for such inspection was to be made during the week of 29 June 2009. This was followed by an e-mail reminder on 21 June 2009.

5 On 22 June 2009, the Plaintiff replied by e-mail proposing that documents be exchanged at 4:00 pm on 3 July 2009. Later that day, the Defendant’s solicitors replied suggesting that parties exchange copies of documents and conduct mutual inspection of the other party’s original documents at 4:00 pm on 3 July 2009 at the Central Atrium Basement of the Supreme Court Building. The Plaintiff replied on 23 June, counter-proposing that the meeting be held at 8:30 am and stating that he required physical inspection of all of the Defendant’s listed documents.

6 The Defendant’s solicitors reply on 29 June 2009 substantively re-iterated their conditions set out in their e-mail of 22 June 2009: the meeting was to be in the afternoon of 3 July 2009 and that parties would exchange copies of documents and provide mutual inspection of original documents. The Plaintiff replied on the same day and raised the issue of inspection of e-mails:

Regarding inspection emails, do you have access to the email boxes of your client? If not how do you propose to verify the integrity of the email.

7 The Plaintiff proposed delaying inspection until directions could be sought during a pre-trial conference scheduled on 10 July 2009. There were several exchanges of e-mail correspondence between the Plaintiff and Defendant’s solicitors between 20 June and 2 July without any resolution of the issue of inspection. On 2 July 2009, the Plaintiff again suggested postponing inspection until after the pre-trial conference scheduled on 10 July 2009 on, inter alia, the ground that:

You are not ready to show documents in their original form and it is futile to do inspection twice.

8 On the same day, the Defendant agreed to postponement of inspection. During pre-trial conference on 10 July 2009, the Defendant was directed to file an application for leave to dispense with the usual mode of inspection.

9 At the hearing of this application before me on 11 August 2009, the Defendant’s solicitors proceeded on the basis that the Plaintiff had made a request for the inspection of the Defendant’s employees’ e-mail mailboxes and sought an order that inspection of e-mail messages be provided by either printed copies of the e-mails or electronic copies of the e-mails. The Defendant solicitors also raised a preliminary issue as to whether the Plaintiff had waived his right to physical inspection of the e-mail messages listed in the Defendant’s LOD by reason of an admission provided by the Defendant.

10 On the preliminary issue, I gave ex tempore grounds for holding that the Plaintiff did not waive his right to inspection, which I reproduce herewith in full:

Based on the sequence of correspondence placed before me, I do not think that there was any agreement between parties on the proposal for an admission in exchange for waiver of inspection. I would characterise the e-mail proposal of the Plaintiff dated 11 July 2009 as an offer which was rejected by conduct when this application was filed on 17 July 2009. I am particularly persuaded by the fact that there were no attempts to negotiate between parties during the period between 11 and 17 July, even though the Plaintiff was in Singapore. As such I do not think that the letter from Defendant’s solicitors dated 30 July 2009 amounted to an acceptance of the offer. The correspondence will remain; although I had observed that the significance of who provided pen and paper escapes me at this point.

11 I do not intend to revisit this preliminary issue in these grounds of decision, which is intended to deal with the substantive issues raised in the application.

Outline of issues

12 The issues before me may be summarised as follows. First, what was the subject matter of the inspection order which is sought? Is the Defendant required to give inspection of the entire mailboxes of the employees of the Defendant, whose e-mails had been listed in the Defendant’s LOD filed on 19 June 2009, or was inspection only to be ordered in respect of the individual e-mail messages which were enumerated? Second, how should inspection of e-mail messages be given? This raised subsidiary issues relating to the common practice of giving inspection by providing copies of the discoverable documents first and deferring physical inspection. How should this practice be adapted for documents which are stored electronically?

Inspection of individual e-mails or entire mailboxes

13 The first issue is whether inspection should be ordered in respect of the 153 e-mail messages listed in the Defendant’s LOD or the entire mailboxes of the 14 employees concerned with these e-mail messages. It is beyond doubt that individual e-mail messages are treated as separate documents and may be discoverable as such. For example, e-mail messages were part of the correspondence discovered in PSA Corp Ltd v Korea Exchange Bank [2002] 3 SLR 37; [2002] SGHC 88. In Trek Technology (Singapore) Pte Ltd v FE Global Electronics Pte Ltd and Others and Another Suit [2003] 3 SLR 685; [2003] SGHC 185, internal e-mail messages were treated as discoverable, although it was held that discovery of internal e-mails was unnecessary at the stage of the proceedings when the application was brought but the judge left it open for a further application for discovery of internal e-mails to be made before the trial judge. In K Solutions Pte Ltd v National University of Singapore [2009] SGHC 143, it was observed (at paragraph 14) that “email … [was] treated as documents and it was accepted that the discovery obligations of the parties extended to disclosure of relevant email …”.

14 It is equally beyond doubt that databases are discoverable and hence liable to production for inspection. In Alliance Management SA v Pendleton Lane P and Another and Another Suit [2007] 4 SLR 343; [2007] SGHC 133, it was observed (at paragraph 10) that:

It is convenient at the outset to restate the principles that would apply when approaching the issues here. First, it bears noting that Vinelott J in Derby & Co Ltd v Weldon (No 9) [1991] 1 WLR 652 (“Derby No 9”) concluded that material on a computer database constituted a “document” within O 24. The word “document” covers “anything upon which evidence or information is recorded in a manner intelligible to the senses or capable of being made intelligible by the use of equipment” (see Singapore Civil Procedure 2003 (G P Selvam ed) (Sweet & Maxwell, 2003) at para 24/1/2). A “document” is defined in s 3(1) of the Evidence Act (Cap 97, 1997 Rev Ed) as “any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matter”. Material stored on a computer database is within this definition. Yong Pung How CJ in Megastar Entertainment Pte Ltd v Odex Pte Ltd [2005] 3 SLR 91 at [34] reviewed the definition of “document” in the Evidence Act and other statutes and, inter alia, concluded that as with the other statutes considered in that case, the Evidence Act definition of the word “document” was broad enough to encompass information recorded in an electronic medium or recording device such as a hard disk drive installed in a desktop or server computer. Put simply, the concept of “document” embraces the Hard Disk for the purposes of O 24 of the ROC.

15 Individual e-mail messages are sent and received using e-mail accounts which are maintained on e-mail servers. E-mail systems generally fall within two broad categories: those based on Internet standards and proprietary e-mail systems. Internet e-mail systems make use of the Multipurpose Internet Mail Extensions (MIME) standards for the e-mail message format, the Simple Mail Transfer Protocol (SMTP), Post Office Protocol (POP) and/or Internet Message Access Protocol (IMAP) to send and receive e-mails. Proprietary e-mail systems, as the name suggests, make use of proprietary protocols; examples of proprietary e-mail systems are Lotus Notes and Microsoft Exchange. E-mail accounts are accessed using client software programs. Web-based e-mail systems (or Webmail) on the other hand are designed...