Robin Duane Littau v Astrata (Asia Pacific) Pte Ltd

• Jurisdiction: Singapore
• Judge: Yeong Zee Kin SAR
• Judgment Date: 18 March 2011
• Neutral Citation: [2011] SGHC 61
• Court: High Court (Singapore)
• Docket Number: Suit No 156 of 2010 (Summons No 5244 of 2010)
• Published date: 29 March 2011
• Year: 2011
• Hearing Date: 13 December 2010,19 January 2011,12 January 2011,07 March 2011,15 November 2010
• Plaintiff Counsel: Gan Kam Yuin, Pua Li Siang and Joanna Lee (Bih Li & Lee)
• Defendant Counsel: Gerald Kuppusamy and Shaun Lee (Wong & Leow LLC)
• Subject Matter: Civil Procedure,discovery of documents,electronic discovery,reasonable search,Anton Piller orders,disclosure of documents,Civil procedure,privileges,production of documents
• Citation: [2011] SGHC 61

Yeong Zee Kin SAR: Introduction

This is an application under Part IVA of the Supreme Court Practice Directions for the discovery and inspection of electronically stored documents (“Part IVA”) for the court to determine the keywords which are to be used to conduct a reasonable search for discoverable documents following the execution of an Anton Piller Order. A summary of the personalities, issues and procedural history leading up to this application is set out in Littau Robin Duane v Astrata (Asia Pacific) Pte Ltd [2010] SGHC 361, [1]–[4] & [6], which I adopt for these grounds: The plaintiff was a former group regional director of the defendant. Between March 2005 and December 2009, he was employed in various senior executive and managerial positions in the Asia-Pacific region. During his employment, he signed a Confidentiality, Restrictions & Intellectual Property Agreement (“the non-compete agreement”) with the defendant. On 11 September 2009, the plaintiff gave three months’ notice of his resignation. His last day of employment would therefore have been 10 December 2009. However, on 9 December 2009, the defendant purported to dismiss him summarily with immediate effect. The defendant was incorporated in Singapore in October 2003. It is in the business of designing and developing location-based information technology services and solutions (telematics). These solutions enable businesses and government organizations to monitor, trace and control the movement and status of machinery, vehicles, personnel and other assets. The defendant’s business dealings are often confidential as they pertain to matters of security and defence. It is part of the Astrata Group of companies which comprises Astrata (Singapore) Pte Ltd (“ASP”) and Astrata Group Inc (“AGI”), a USA company. AGI is the parent company of the defendant which is in turn the parent company of ASP. The plaintiff commenced an action for the salary due to him from September to 10 December 2009 and for payment of expenses and accrued leave. The defendant filed its defence and counterclaim alleging that the plaintiff had breached his duties by giving information to certain entities (“the US parties”) resulting in the defendant having to incur extra costs to defend a Chapter 11 proceeding in the USA. Just before the defendant applied for an interim injunction and a search order against the plaintiff, it sought leave to amend its defence and counterclaim to include a new claim for breach of the non-compete agreement. Its application was allowed save for the prayer asking for leave to use the evidence obtained in this action in any other proceedings between the Tridex Companies and the defendant’s group of companies. On 21 June 2010, the defendant applied for and obtained an interim injunction and search orders against the plaintiff. These orders were extracted as order no. 2968 of 2010 (“the injunction”), order no. 2969 of 2010 and order no. 2986 of 2010 (“the search orders”). Among other things, the defendant alleged that the plaintiff had approached its customers and business partners (namely COSEM, the Tridex Companies and TNT). The injunction enjoined the plaintiff from giving confidential information to third parties and from breaching the non-compete agreement. The search orders were directed at evidence that the plaintiff had given information to the US parties as well as his breach of the non-compete agreement. The search orders were extended by the court on 25 June 2010, extracted as order no. 3082 of 2010, as the physical imaging of the plaintiff’s gmail [sic] account could not be completed in time. A moratorium of two weeks was ordered against perusal of any materials obtained as a result of these orders and if the plaintiff should apply within two weeks to set aside or to vary the orders, the prohibition against perusal would continue until further notice. … After hearing the parties … I [] lifted the moratorium against perusal … I directed the parties’ solicitors to review the disputed documents obtained and try to come to an agreement whether they fall within the ambit of the search orders, failing which the plaintiff may apply to court to resolve the matter.

In addition to the above, the following facts need also be borne in mind. This action, although commenced in the Subordinate Courts, was transferred to the High Court in March 2010. General discovery was given when the defendant and plaintiff filed their lists of documents on 22 April 2010 and 26 April 2010 respectively. Hence, the search orders were obtained in June 2010 after general discovery had been given.

Pursuant to the search orders, the defendant had seized, inter alia, the contents of the hard disk of the plaintiff’s Apple iMac 24” desktop computer and his PowerBook G4 notebook computer; as well as the contents of the plaintiff’s e-mail accounts — Gmail account with e-mail address rlittau@gmail.com, LinkedIn account for rlittau@gmail.com and AOL account with e-mail address rlittau@AOL.com (“the seized items”).

Forensic images of the seized items had also been made in accordance with the procedures set forth in the search orders. The volume of data in the seized items is sizeable as shown in the following table, which provides the size of the forensic image for each of the seized items:

	Item	Size
(a)	Apple iMac 24” desktop computer	1,000 GB hard disk
(b)	PowerBook G4 notebook computer	100 GB hard disk
(c)	Gmail account with e-mail address rlittau@gmail.com	5 GB
(d)	Linked in account for rlittau@gmail.com	4 GB
(e)	AOL account with e-mail address rlittau@AOL.com	4 GB

Following Tay J’s decision, parties engaged in attempts to agree on the manner of reviewing the forensic images of the seized items. Parties were able to reach agreement that keyword searches ought to be conducted to identify relevant documents, but they were not able to agree on either the list of keywords or the procedure to be adopted after keyword searches have yielded a set of documents that are responsive to the keywords used (“the search results”). On the other hand, parties were able to agree on the use of keyword searches to identify documents which were subject to litigation privilege for exclusion from the review.

Framework for conducting review of electronic documents

Parties appeared before me on two occasions to settle the approach which ought to be adopted in the review. At the hearing on 15 November 2010, I made directions that the following 3-stage process be adopted for conducting the review. First, parties are to come to an agreement on a list of keywords to be used to conduct the reasonable search. Thereafter, the reasonable search is to be conducted on the forensic images of the seized items. The search results would then, in the third stage, be reviewed by counsel to identify confidential information and information subject to privilege. The search results, less privileged documents and documents which are otherwise unnecessary for disclosure, will form part of general or further discovery. The application was adjourned for parties to reach an agreement on the list of keywords to be used in the first stage.

On 13 December 2010, parties returned before me and appeared to have reached an impasse on the keywords. I ordered that a preliminary search be performed using the list of 251 keywords proposed by the defendants solely for the purpose of identifying the number of hits against each keyword, but with no right to review the underlying documents.

Parties came back before me on 12 January 2011 for submissions on the disputed keywords; and on 19 January 2011, I heard parties on the limits which ought to be applied on the reasonable search. I set forth hereunder my reasons and the considerations for each stage of the framework for conducting the review.

First stage: Determining relevance of keywords

It was common ground that ocular examination of the electronic documents stored in the seized items was not feasible both by reason of the large volume of documents which had to be reviewed and the legal costs which such a review would have incurred. Parties agreed that the use of keywords to perform a reasonable search on the forensic images of the seized items in order to identify discoverable documents was the preferred approach. However, there was an impasse on the list of keywords which should be used.

Whether the test for determining relevance of keywords in the review of search orders is different from that which is applicable for discovery in the pending suit

On behalf of the plaintiff, it was argued that the keywords to be used in the keyword search had to be relevant to issues in dispute. Further, after the keyword search is conducted, a review of the documents which form the search results should be conducted in order to identify documents which are to be finally disclosed. On the other hand, the defendant sought to draw a distinction between its ability to conduct keyword searches on the seized items under the powers given pursuant to the search orders – which it thought should not be fettered by a list of keywords – and the use of keyword searches for the purpose of identifying relevant documents for discovery. The defendant sought to persuade me that its powers under the search orders were somewhat broader and less fettered.

I did not agree with the defendant’s submission as I do not see any distinction between the test applicable to determine relevance for compliance with the search orders and relevance for the purposes of discovery in the pending suit. Search orders (previously known as Anton Piller orders) are draconian in nature and, by reason of the very drastic effect and far-reaching consequences such orders may have when executed, they are granted only in exceptional cases: Computerland Corp...