Sanae Achar v Sci-Gen Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Lee Seiu Kin J
• Judgment Date: 08 April 2011
• Neutral Citation: [2011] SGHC 87
• Citation: [2011] SGHC 87
• Hearing Date: 30 November 2010
• Date: 08 April 2011
• Plaintiff Counsel: Joana Teo (Harry Elias Partnership LLP)
• Defendant Counsel: William Ong and Sylvia Tee (Allen & Gledhill LLP)
• Subject Matter: Civil Procedure
• Docket Number: Suit No 222 of 2010 (Registrar’s Appeal No 441 of 2010)
• Published date: 18 April 2011

Lee Seiu Kin J: Introduction

This was an appeal by the plaintiff, Sanae Achar (“Achar”), against the decision of the learned assistant registrar (“AR”) who allowed the application of the defendant, Sci-Gen Ltd (“Sci-Gen”), in Summons No 4406 of 2010 (“Summons 4406/2010”) for specific discovery of documents pursuant to O 24 r 5 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”). After hearing both parties, I dismissed Achar’s appeal. I now set out the reasons for my decision.

Background

Achar was a former employee of Sci-Gen. She commenced Suit No 222 of 2010 (“the Suit”) against Sci-Gen for salary and benefits allegedly owed to her by Sci-Gen under the terms of her employment with Sci-Gen.

Achar’s claim against Sci-Gen is based on her employment contract with Sci-Gen (“the Employment Contract”), which commenced in April 2008 and was due to expire three years later in April 2011. According to Achar, the Employment Contract provided that in the event Sci-Gen terminated her employment by notice prior to the end of her employment period with Sci-Gen (ie April 2011), Sci-Gen was to pay to Achar the balance of her salaries until the end of that employment period. Achar alleged that she was terminated by Sci-Gen with notice on 1 December 2008, less than eight months through her employment contract. Notice for Achar’s termination was allegedly given for and on behalf of Sci-Gen by Saul Mashaal (“Saul”), Sci-Gen’s chairman and chief executive officer at the relevant time. Accordingly, Achar maintained that she was entitled to be compensated for the remaining months up till the end of the Employment Contract in April 2011.

Sci-Gen’s position, however, was that it had not terminated Achar’s employment on 1 December 2008. Rather, the alleged notice of termination and related documents therein had only been given by Saul to Achar after the former’s termination as Sci-Gen’s chairman and chief executive officer on 20 April 2009, and backdated to 1 December 2008. Backdating was done so as to allow Achar to procure the remainder of her employment benefits under the Employment Contract without performance of her duties thereunder. As Sci-Gen believed that Achar had falsely alleged that she had been given the notice of termination, Sci-Gen terminated Achar’s employment pursuant to the Employment Contract on 29 May 2009.

The AR’s decision

In the course of the Suit, Sci-Gen took out an application for discovery of particular documents. The AR heard Sci-Gen’s discovery application on 27 October 2010 and allowed discovery of the following documents: An electronic mail (“email”) from Saul to Achar allegedly dated 1 December 2008 (“the Alleged 1 December Email”). An email from Saul to Achar allegedly dated 15 December 2008 (“the Alleged 15 December Email”). All emails from Saul to Achar received between 1 December 2008 and 29 May 2009, stored on Achar’s computer(s), notebook(s), external hard drive(s), external hard disk(s) or any other external storage device or medium, and/or Achar’s online email account on the domain yahoo.com. All emails from Achar to Saul sent between 1 December 2008 and 29 May 2009, stored on Achar’s computer(s), notebook(s), external hard drive(s), external hard disk(s) or any other external storage device or medium, and/or Achar’s online email account on the domain yahoo.com. All emails which include any of the following search words or phrases or any combination thereof, viz, “Saul”, “Saul Mashaal”, “termination”, “terminate”, “leave”, or “vacation”, stored on Achar’s computer(s), notebook(s), external hard drive(s), external hard disk(s) or any other external storage device or medium, and/or Achar’s online email account on the domain yahoo.com, the duration of discovery being limited to the period between 1 December 2008 and 31 July 2009. The documents in respect of which the AR ordered discovery can be broadly grouped into three categories. The first category, corresponding to items (a) and (b) at [5] above, consisted of emails allegedly terminating Achar’s employment with Sci-Gen (henceforth referred to as “the Category 1 Documents”). The second category, corresponding to items (c) and (d) at [5] above, consisted of email exchanges between Achar and Saul between 1 December 2008 and 29 May 2009 (henceforth referred to as “the Category 2 Documents”). The third and final category, corresponding to item (e) at [5] above, consists of emails sent and received between 1 December 2008 and 31 July 2009, which contain various search words and phrases (henceforth referred to as “the Category 3 Documents”).

The AR further ordered that the documents to be disclosed were to be provided in an electronic, text searchable and structured format. They were to also include the names of the electronic files constituting or containing the relevant electronic documents, as well as the file formats (and their versions) of the said documents. The AR also allowed Sci-Gen to inspect the disclosed documents in their native format. Dissatisfied with the discovery order made by the AR, Achar appealed against the same.

The appeal The law on discovery

A party to a litigation has an obligation to disclose to the opposing party all documents which are, or have been, in his possession, custody or power that are relevant to the issues in dispute. This is the process of discovery and the court may make an order to do so under O 24 r 1 of the Rules of Court. Where the court is of the view that any party has not disclosed any such document, the court may order that party to give discovery thereof. This is known as specific discovery which the court may order under O 24 r 5. To be susceptible to an order for specific discovery, a document must fulfil certain requirements.

First, the document must be relevant (see Tan Chin Seng and others v Raffles Town Club Pte Ltd [2002] 2 SLR(R) 465 (“Tan Chin Seng”) at [18]). In respect of discovery of specific documents, O 24 r 5(3) of the Rules of Court describes a relevant document to be:

(a) a document on which the party relies or will rely;

(b) a document which could - (i) adversely affect his own case; (ii) adversely affect another party's case; or (iii) support another party's case; and

(c) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may – (i) adversely affect his own case; (ii) adversely affect another party's case; or (iii) support another party's case.

Whether a document is one on which the party seeking discovery relies or will rely upon, or one which could adversely affect that...