RECENT DEVELOPMENTS IN ELECTRONIC DISCOVERY: DISCOVERING ELECTRONIC DOCUMENTS AND DISCOVERING DOCUMENTS ELECTRONICALLY

Citation(2007) 19 SAcLJ 101
Published date01 December 2007
Date01 December 2007

The preponderance of documentary evidence these days are created in an electronic form; and some documents exist for most, if not the entire, of their life cycles as electronically stored documents. To varying degrees, however, discovery of documents within the civil litigation process in Singapore and elsewhere is provided using paper documents. This article considers electronic discovery from two perspectives: the obligation to provide discovery of electronically stored documents; and the manner in which discovery of documents may be provided in an electronic form. This article examines the issues that are raised when the obligation to provide discovery is applied to electronically stored documents: issues relating to the breadth of the discovery obligation, access to and the costs of accessing electronically stored documents, the role of technical experts and legal advisers in ensuring that documentary evidence is preserved and privileged documents are not disclosed. A survey of recent legislative developments in the US, UK and Australia reveals the different approaches adopted by these jurisdictions to address such issues raised by electronic discovery. These different approaches are considered; as are the measures taken to encourage the provision of discovery in an electronic form. The article concludes with a consideration of the suitability of some of these legislative developments for adoption in Singapore.

1 The past year has seen a legislative frisson internationally in the area of civil procedural rules governing electronic discovery. No doubt legislators worldwide realise that the transposition of the litigants’ discovery obligations into the electronic realm has revealed new dimensions which these rules seek to address. The tendency for electronically stored information to grow has increased the volume of documents which are potentially discoverable; and this has led to concerns relating to proportionality, accessibility and costs.

2 This article surveys recent legislative developments as civil procedural rules are updated to deal with the discovery of electronically stored information. As this article’s title suggests, there are at least two

aspects to electronic discovery. This article will first consider issues relating to the discovery of electronic — or electronically stored — documents. This section commences with a brief survey of the range of discoverable electronic documents and the issues relating to their discovery. We will consider also the issues of proportionality, accessibility and costs with regards to the expanded options of electronic storage. We round up this aspect of the article by considering the solicitor’s obligations in relation to the preservation and discovery of electronic documents, including inadvertent disclosures of privileged documents.

3 Next, the article will consider the process by which documents may be discovered electronically. We will look at recent trends to impose an obligation on litigants to address issues relating to electronic discovery early in the litigation process. In this section, we will also look at the role of technical experts in the electronic discovery process, before wrapping up with an examination of how discoverable documents may be disclosed electronically. This article concludes with a brief consideration of how these developments may be adopted in our civil procedural rules.

I. Discovering electronic documents

4 We turn first to consider the range of discoverable electronic documents. There is no debate over whether electronically stored documents are discoverable. The courts have taken a broad view of the categories of material that fall within the definition of documents and electronically stored documents have long been considered discoverable. Hence, it was noted in Rowe Entertainment v The William Morris Agency, per Robert P Patterson, Jr, USDJ: “Rules 26(b) and 34 of the Federal Rules of Civil Procedure instruct that computer-stored information is discoverable under the same rules that pertain to tangible, written materials.”1 It is therefore not surprising that recent cases have considered the discoverability of a whole range of electronically stored documents: not only word processor documents, spreadsheets and presentation slides, but also electronic mail,2 databases,3 and sound recordings stored as Motion Picture Expert Group 1, Audio Layer 3 (“MP3”) files.4

5 In the Practice Direction to the UK Civil Procedure Rule Part 31, which came into effect in October 2005, e-mails, word processor documents and databases are specifically included within the meaning of documents. Additionally, metadata and even deleted documents are included within the definition of documents.5

6 A distinction which ought to be borne in mind in respect of the legal obligation to discover documents is that the documents themselves should not be confused with the storage medium in which these documents reside. In Sony Music Entertainment (Australia) Limited v University of Tasmania, the Federal Court of Australia opined that “the Court has power to order discovery of a CD ROM, tapes or the other electronic storage devices”.6 While issues relating to accessibility of storage media will be considered below, it suffices for the moment to point out that it is not the storage device or medium that is discoverable but the documents stored within. Hence, an optical DVD disc may contain up to five gigabytes’ worth of documents but not all are discoverable; similarly with backup tapes, hard disk drives whether on personal computers or accessible on the network. The adage that the obligation to discover should not be used as an excuse to empty out the opposing party’s filing cabinet holds true for electronically stored documents: discovery should not be an excuse for asking the opposing party to hand over his entire hard drive.

7 Notwithstanding the foregoing, the occasion may arise where it is necessary to obtain an image of the responding party’s hard disk for the purpose of recovering deleted file fragments. Where a party has grounds to believe that incriminating evidence has been deleted, a request may be made for an image of the responding party’s hard disk to be submitted to technical experts for the purpose of recovering deleted file fragments. Understandably, the courts are cautious in granting such requests as they involve submitting the entire contents of the responding party’s hard disk to external examination.

8 The recent US District Court of the Southern District of New York case of Calyon v Mizuho Securities USA, Inc7 discussed the considerations that the court weighs in deciding whether to grant such applications under r 34(a) of the Federal Rules of Civil Procedure. A balance is sought between ensuring discovery of relevant (and often incriminating) evidence on the one hand, and the protection of privilege and privacy concerns on the other. The request has to be made with sufficient particularity to identify the information that is sought to be recovered from the hard disk image. The successful applicant is expected to demonstrate a close relationship between the information likely to be recovered from an image of the defendant’s hard disk to his cause of action, eg, that the deleted files contain evidence of breach of confidentiality. It will also help the applicant if he is able to show that the responding party’s conduct in providing discovery had been dilatory prior to the application and that the responding party is unlikely to provide the requested information without an application to court. In granting such applications, the court is likely to impose conditions that are meant to safeguard privileged documents, eg, submitting the retrieved file fragments to the defendant’s counsel for the purpose of ensuring that privileged documents are not disclosed or allowing them to object to disclosure of file fragments containing privileged documents.

A. The discovery of databases

9 While the distinction between electronically stored documents and storage medium is more clearly seen in documents that are stored as discrete files in folders or directory structures, information stored within databases poses a different challenge. Databases are potentially monolithic electronic containers of a large quantity of information. On the storage medium, the database appears as one file; however, there may be a large quantity of information stored within the database as structured records.

10 Frequently, databases will contain commercially valuable information which may not be relevant or necessary to the litigation. Courts will usually be mindful of the commercial implications of discovery of commercially valuable information during litigation and traditional tests for discovery will aid in determining whether the database in question ought to be disclosed. In

Robert Kouzaris v Bass Taverns Ltd,8 the plaintiff alleged that the defendant agreed to employ him as a deputy manager, and had requested the discovery of the defendant’s database of job vacancies in his action for breach of promise of employment. However, his request for discovery of the defendant’s database was not allowed on the basis that the portion of the plaintiff’s claim to which the database was alleged to be relevant was of doubtful legal merit and hence discovery of the database was considered unnecessary.

11 The proper approach in the discovery of database should therefore be one that focuses on the range of such information — or records — within the database that is relevant and necessary and to disclose only extracts of these records, not the entire database. The Federal Court of Australia considered this issue in Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd,9 before deciding not to order the discovery of the electronic database in question. In resisting the application, the defendant argued that the database contained a large pool of...

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