Surface Stone Pte Ltd v Tay Seng Leon and another

JurisdictionSingapore
JudgeShaun Leong Li Shiong AR
Judgment Date05 October 2011
Neutral Citation[2011] SGHC 223
CourtHigh Court (Singapore)
Docket NumberSuit No 33 of 2011 (Summons No 3725 of 2011)
Published date10 October 2011
Year2011
Hearing Date20 September 2011
Plaintiff CounselChua Beng Chye and Raelene Pereira (Rajah & Tann LLP)
Defendant CounselDaniel Koh and Radika Mariapan (Eldan Law LLP)
Subject MatterCivil Procedure,Discovery of documents,Order 24 rule 5(3)(c) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed),Analytical Framework to determine Relevancy of documents under Order 24 rule 5(3)(c) (the "train of inquiry" analysis),Electronic Discovery,Inspection of compound documents,Inspection Protocol in Appendix E Part 2 of Practice Direction No 3 of 2009,Rebuttable Presumption that Inspection Protocol is required for compound documents,Cross Jurisdiction Survey on Inspection of compound documents,Principle of Proportionality,Implementation of safeguards to limit the scope of Inspection
Citation[2011] SGHC 223
Shaun Leong Li Shiong AR: Introduction

The advent of new technology has brought about challenges to litigation that (arguably) only technology can resolve. In the midst of considering applications for specific discovery under the “train of inquiry” limb, it should be borne in mind that the genesis of the Peruvian Guano doctrine lies in a simpler time, when photocopiers were not yet invented and computers were not even imagined (and thus a time long before the proliferation of emails and email attachments). The need to ensure that the discovery and inspection process remains proportionate is especially compelling where compound documents (which are electronic storage media such as computer databases and hard disks) are sought to be discovered and inspected under the “train of inquiry” limb; the danger of recovering voluminous electronic documents that are of marginal or no relevance is particularly acute if the Peruvian Guano doctrine is applied bluntly without safeguards (see [60][61] below), and without due consideration to cautions on the huge corpus of electronic documents potentially discoverable, such as the one aptly made by Senior Master Whitaker in the recent decision of Goodale v Ministry of Justice (Opiate Dependent Prisoners Group Litigation) (2009) EWHC 3834 (QB) at [1][2]:

…since certainly the beginning of this decade, increasing numbers of public bodies and private businesses, not to mention individuals, have gone over to creating, exchanging and storing their documentation and communicating with each other entirely by electronic means. The end result is that an enormous volume of information is now created, exchanged and stored only electronically. Email communication, word processed documents, spreadsheets and ever increasing numbers of other forms of electronically stored information ("ESI") now often form the entire corpus of the documentation held by companies and individuals who become involved in litigation. So the incidence of paper disclosure is becoming less and less prevalent though in some cases it may still be critical. and the incidence of the disclosure of electronically stored information, or ESI as it is known, is becoming more and more so.

What is more, the volume of the ESI, even in small organisations is immense, often, as in the case of email, because of the huge quantities of documents created (including wide-scale duplication) and the fact that the documents can exist in many different forms and locations so that they are not readily accessible except at significant cost. It is also commonplace for many individuals to have more than one email account – business, personal, web-mail (for example, Yahoo, Gmail, Hotmail etc.) When ESI is available, metadata (literally data about data) associated with it can easily be unintentionally altered by the very act of collection, which in some circumstances can have a detrimental effect on the document's evidential integrity. What is more, ESI can be moved about nationally and internationally, indiscriminately and at lightning speed…

Factual background of application

This case concerns the plaintiff’s application, made under O 24 r 5(3)(c) and r 11(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), for specific discovery and inspection of the first defendant’s documents (hereinafter referred to interchangeably as “devices”) which are: (i) a Toshiba laptop used during the first defendant’s employment with the plaintiff (“Toshiba laptop”); (ii) a white Western Digital 250GB hard disk used during the first defendant’s employment with the plaintiff (“hard disk” or “Western Digital hard disk”); and (iii) the first defendant’s iPhone used during his employment with the plaintiff (“iPhone”). It is common ground between parties that these devices are discoverable “documents” under O 24 r 5. There is no dispute on possession, custody or power, with regard to the Toshiba laptop, and the hard disk; but the first defendant claims that the iPhone is no longer in his possession, custody or power (and hence not subject to inspection).

The plaintiff is a private limited company incorporated in Singapore, and carries on the business of procuring and supplying stones and tiles for building and construction. The first defendant was appointed a sales director of the plaintiff, and was also made a minority shareholder of the plaintiff (with 10% shareholding). His duties included procuring supplies of stones and tiles on behalf of the plaintiff, and carrying out sales and marketing of the plaintiff’s products and services. The second defendant (not directly involved in the present application), was employed by the plaintiff as a sales executive pursuant to an employment agreement dated 25 August 2009.

According to the first defendant, the plaintiff had, through a representative, written a letter on or about 18 January 2011 to several of the plaintiff’s customers, informing them that the plaintiff had suspended the first defendant’s duties as a director, and alleging that he had breached several duties owed to the plaintiff by making improper use of information acquired in order to obtain personal gain (the letter of 18 January 2011). On the same day, the plaintiff had allegedly prevented the first defendant from returning to the plaintiff’s office premises, and had confiscated the Western Digital hard disk.

On 19 January 2011, the plaintiff commenced Suit No 33 of 2011/M against the first and second defendants on the following pleaded claims: wrongfully disclosing and misusing the plaintiff’s confidential information; misusing the plaintiff’s resources and the corporate opportunities obtained by them in their capacity as director and employee of the plaintiff; acting with the collateral purpose of setting up a new competing business against the plaintiff’s interest; favouring Xiamen Ouming (one of the plaintiff’s suppliers located in China) and causing the plaintiff to purchase from Xiamen Ouming to the plaintiff’s detriment; conspiring to defraud, injure and/or cause loss to the plaintiff by unlawful means, and to conceal such fraud from the plaintiff; unlawful interference with the plaintiff’s trade and business; and as against the first defendant, inducing and unlawfully procuring the second defendant to breach her employment contract with the plaintiff.

The plaintiff also obtained an interim injunction on 20 January 2011 (the Order of Court dated 20 January 2011 was varied on 4 March 2011), to prohibit the defendants from; carrying on a business which competes with the plaintiff, soliciting the plaintiff’s suppliers, customers and employees, and disclosing certain information concerning certain projects undertaken by the plaintiff. Pursuant to the interim injunction Order, the first defendant was also directed to deliver up items including all laptop computers, desktop computers, hard drives, electronic and other storage materials containing information concerning the various projects undertaken by the plaintiff. The first defendant brought a counterclaim against the plaintiff for the alleged defamatory comments stated in the letter of 18 January 2011.

In the course of submissions, counsel for the first defendant disputed upon the relevancy of the devices sought to be discovered and inspected. It was also asserted, without any elaboration, that the discovery and inspection of the devices was not necessary (see first defendant’s written submissions at [28]). Nevertheless, I have set out (at [16] - [27] below) how the train of inquiry is one that will result in the obtaining of evidence that is necessary for the resolution of the pleaded issues. Before I proceed to deal with the question of whether the devices sought are relevant, I will first set out the analytical framework for determining the relevancy of documents sought to be discovered under O 24 r 5 (3)(c).

Analytical framework for determining the relevancy of documents sought to be discovered under O 24 r 5(3)(c) (the “train of inquiry” limb)

Subject to the overriding principle of necessity in O 24 r 7, where the discovery sought must be necessary for disposing fairly of the proceedings or for saving costs (see Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd [2004] 4 SLR 39 at [37] and [38]), documents which are not in themselves directly relevant, but which are indirectly relevant as it may lead to a train of inquiry resulting in the obtaining of directly relevant evidence, can be discovered under O 24 r 5(3)(c). This “train of inquiry” provision is a vestige from the decision of The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 62-63, where it was observed that:

... documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action ...

The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party [requiring discovery] either to advance his own case or to damage the case of his adversary ... a document can properly be said to contain information which may enable the party [requiring discovery] to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.

It bears noting that the Peruvian Guano doctrine was set at a time when computers were unheard of; a blunt application of this doctrine would at times result in the discovery of voluminous documents, not all of which are relevant or material to the issues at trial. It may...

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5 cases
  • EQ Capital Investments Ltd v Sunbreeze Group Investments Ltd and others
    • Singapore
    • High Court (Singapore)
    • 19 September 2017
    ...Town Club Pte Ltd [2002] 2 SLR(R) 465 at [35] and that of the Singapore High Court in Surface Stone Pte Ltd v Tay Seng Leon and another [2011] SGHC 223 at [10(a)]). Presently, there is nothing in the material before me which either raises a suspicion that there are further directly document......
  • Breezeway Overseas Ltd v UBS AG
    • Singapore
    • High Court (Singapore)
    • 16 August 2012
    ...(Asia Pacific) Pte Ltd [2011] SGHC 61 (refd) Sanae Achar v Sci-Gen Ltd [2011] 3 SLR 967 (refd) Surface Stone Pte Ltd v Tay Seng Leon [2011] SGHC 223 (refd) Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 24, O 24 r 1, O 24 r 5 (3) (c) , O 24 r 7 Freddy Lim (Lee & Lee) for the plaintiffs Tan Sh......
  • Dirak Asia Pte Ltd and another v Chew Hua Kok and another
    • Singapore
    • High Court (Singapore)
    • 9 January 2013
    ...and inspection of documents known as “compound documents”, see the decision of Surface Stone Pte Ltd v. Tay Seng Leon and another [2011] SGHC 223. 2 See David D. Cross and Emily Kuwahara, E-Discovery and Cloud Computing: Control of ESI in the Cloud (EDDE Journal, Spring 2010, Vol 1, Issue 2......
  • DR ZAKIR ABDUL KARIM NAIK vs KULA SEGARAN A/L V MURUGESON
    • Malaysia
    • High Court (Malaysia)
    • 2 April 2021
    ...of inquiry’ concept as follows: [11] (b) What amounts to relevance was discussed in Surface Stone Pte Ltd v Tay Seng Leon and Another [2011] SGHC 223, in reliance of the case of Compagnie Financiere du Pacifique v Peruvian Guano [1882] 11 QBD 55, where the court said: “It seems to me that e......
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2 books & journal articles
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review No. 2011, December 2011
    • 1 December 2011
    ...v Astrata (Asia Pacific) Pte Ltd[2011] SGHC 61 (decided by the senior assistant registrar) and Surface Stone Pte Ltd v Tay Seng Leon[2011] SGHC 223 (decided by the assistant registrar). Electronic Filing System (EFS) 8.37 In Ong Jane Rebecca v PricewaterhouseCoopers[2011] 4 SLR 242, the thi......
  • WEATHERING THE EVOLVING LANDSCAPES OF ELECTRONIC DISCOVERY
    • Singapore
    • Singapore Academy of Law Journal No. 2017, December 2017
    • 1 December 2017
    ...v Astrata (Asia Pacific) Pte Ltd[2011] SGHC 61. 139Global Yellow Pages Ltd v Promedia Directories Pte Ltd[2013] 3 SLR 758 at [41]. 140[2011] SGHC 223 at [92]. 141[2013] 3 SLR 758 at [40]. 142 Eric Robinson, “Practical Tips for APAC Discovery”, The Ediscovery Blog (20 May 2013) com/2013/05/2......

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