WEATHERING THE EVOLVING LANDSCAPES OF ELECTRONIC DISCOVERY

• Published date: 01 December 2017
• Author: Danna ER LLB (Hons) (National University of Singapore), LLM (Harlan Fiske Stone Scholar) (Columbia Law School); Advocate and Solicitor (Singapore); Attorney and Counsellor-at-Law (New York, USA).
• Date: 01 December 2017

A Comparative Analysis

With the widespread use of electronic communications, and the increasing volumes and types of digital information, electronic discovery has taken centre stage in modern-day dispute resolution. The objective of this essay is to survey the diverse electronic discovery landscapes in the US, the UK (England & Wales), the People's Republic of China and the People's Republic of Singapore to suggest that the People's Republic of Singapore needs to rethink its electronic-discovery framework in terms of preservation, proportionality, search and co-operation.

I. Introduction

1 With the extensive use of electronic communications, electronically stored information (“ESI”) is pervasive in today's society. It is estimated that some 60 billion e-mails were sent per day in 2006,1 and by 2020, the data created annually would reach 44 million gigabytes in the digital universe.2 With the burgeoning growth of ESI, it is inevitable that evidence produced for dispute resolution will involve electronic media. The inescapable consequence is that the manner in which organisations and their lawyers deal with ESI in electronic discovery (“e-discovery”)3 can have a significant impact on the outcome of a case.

2 Perhaps more significant is the quality of ESI that makes e-discovery different from traditional discovery.4 ESI is constantly evolving, easily replicated and produced in greater volumes than paper documents. ESI is also less destructible than paper documents as it can be easily restored. ESI is associated with metadata that is recorded by the computer when storing or retrieving a file. ESI, if divorced from its original environment, may become obsolete and incomprehensible. It may be dispersed in various locations including desktop hard drives, laptop computers, network servers, disks, flash drives and backup tapes. Consequently, determining the provenance of ESI can prove to be extremely challenging. Failing to understand how to manage e-discovery can lead to the disclosure of privileged ESI,5 unnecessary discovery costs, adverse orders, or even the dismissal of a case.6

3 With the proliferation of ESI, challenges lie ahead. Legislators must actively ensure their e-discovery frameworks are sufficiently robust to cope with the rapid growth of ESI. There will be pressure on the courts to provide clear guidelines on what is expected of parties in an e-discovery process in domestic litigation.

4 Section II will explore and compare the e-discovery frameworks of the US, the UK, China and Singapore. The analysis will focus on: preservation; proportionality; search methodologies; and co-operation. Evaluation will be made of the benefits and burdens of the different e-discovery approaches taken in the above jurisdictions to suggest that more can be done to advance Singapore's e-discovery framework. Section III will tie in the various themes and conclude.

II. Finding a place in the sun: The evolving e-discovery landscapes

A. Overview of the e-discovery frameworks

5 The US is the poster child for notoriously broad7 but rapidly developing e-discovery rules and has served as a reference point for

countries seeking to develop their e-discovery jurisprudence. The 2015 amendments to the Federal Rules of Civil Procedure (“FRCP”) raise the interesting question of whether the US will succeed in achieving the right equilibrium in managing the rising costs of e-discovery, while providing for the just, speedy and inexpensive resolution of legal disputes.8

6 Further along the discovery continuum is the UK, which has a narrower scope of discovery than the US. The UK has invested significant efforts to modernise its e-discovery framework with the launch of Practice Directions 31B (“PD 31B”)9 on 1 October 2010, to guide e-discovery in multitrack cases.10 As a member state of the European Union (“EU”), the UK will have to juggle its EU data protection obligations along with its common law obligations.

7 At the other end of the discovery spectrum is China, which does not have a US or UK-equivalent concept of discovery.11 China is currently the top Asian country from which electronic data is collected for arbitrations or litigations12 and it regulates the investigation and collection of evidence through the Civil Procedure Law of the People's Republic of China 201213 (“Civil Procedure Law”),14 the Provisions of the Supreme People's Court on Evidence in Civil Proceedings15

(“Evidence Rules”),16 and the Interpretations of the Supreme People's Court on Applicability of the Civil Procedure Law of the People's Republic of China17 published in 2015 (“Judicial Interpretations”).18

8 Like most Asia-Pacific nations, Singapore's e-discovery framework is still in its infancy and presents significant challenges for companies operating in Singapore in understanding their precise e-discovery obligations in litigations and arbitrations.19 Yet, the stakes are high as Singapore is a key financial centre in Asia and host to 41% of Asia-Pacific headquarters for 319 Fortune 500 companies.20 Singapore is also the top common law country in Asia which companies collect data from for the purposes of litigations or arbitrations,21 and the second most widely used arbitration seat for businesses operating in Asia.22 Singapore's approach to e-discovery will not only have implications for litigation, it will also have repercussions on how e-discovery is conducted in international arbitrations seated in Singapore, since international arbitration practices tend to borrow practices from domestic litigation.23 At present, Singapore's e-discovery framework is set out in Part V of the Supreme Court Practice Directions (“PD Part V”). It supplements its existing discovery framework and potentially applies to all civil litigation cases. In cases where the amount in dispute exceeds $1m, where discoverable documents exceed 2,000 pages, or where the discoverable documents are predominantly ESI, parties are expected to use e-discovery unless there are compelling reasons not to do so.24

B. Preservation and the litigation hold process

(1) The concept of preservation

9 The duty to preserve requires a party to “identify, locate and maintain information and tangible evidence that is relevant to specific and identifiable litigation”.25 Closely related to the duty to preserve is the concept of a “litigation hold”. A litigation hold requires the preservation of discoverable information when litigation is reasonably anticipated, or pending against an entity.26

(2) Preservation – The US

10 The duty to preserve, as articulated in the seminal case of Zubulake v UBS Warburg LLC,27 is one that arises from the common law duty to prevent spoliation, and from the inherent power of the court. It represents the “trigger” for a litigation hold and arises when a party is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation.28 Subject to the limit of proportionality, the scope of preservation extends to all relevant ESI held by key custodians and others likely to have discoverable information, including accessible backup tapes or inaccessible tapes where the information is not otherwise available.29

11 Under existing case law, a party moving for a spoliation sanction must show: (a) the spoliating party has a duty to preserve evidence under its control; (b) has a culpable state of mind in the loss or destruction of the evidence; and (c) the lost evidence is relevant and it is prejudiced by its unavailability.30 However, US circuit courts are divided as to what constitutes “possession, custody and control”, “culpable state of mind” and “relevance and prejudice”.31 As to the element of “possession, custody and control”, the Third, Fifth and Ninth Circuits

have considered evidence to be under a party's control when it is in the party's actual possession, while the Second and Fourth Circuits have considered “evidence under control” to refer to situations where a party can secure the evidence from non-parties, whether by contract or practical ability.32 As to the “culpable state of mind” element, the Second Circuit has considered negligence to be sufficient,33 the Fourth Circuit has considered any fault to be sufficient,34 while other circuits required a finding of gross negligence or bad faith to trigger sanctions.35 As for the element of “relevance and prejudice”, the presumption of relevance as an evidentiary tool is not consistently employed across circuits. The Second Circuit has taken the view that once the spoliating party is found to be grossly negligent, the lost document is presumed to be relevant and favourable to the other party and the burden shifts to the spoliating party to prove otherwise.36 However, the Fourth Circuit has invoked the presumption only where the failure to preserve was wilful, and the Fifth Circuit has not addressed whether a bad faith destruction of evidence invokes the presumption.37

12 To address the uncertainty surrounding sanctions, r 37(e) of the FRCP was amended, on 1 December 2015, to tie the seriousness of the court's response with, among other factors, the level of culpability of the spoliator. Where ESI that should have been preserved in the anticipation

or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from loss of such information, may only order measures no greater than necessary to cure the prejudice.38 Where however, the court finds that the offending party intended to deprive the other party of the lost information, it may issue severe sanctions, such as an adverse inference, default judgment, or dismissal.39

13 As preservation is a common law duty subject to a wide range of interpretations by the US courts,40 and the scope of...