Is eDiscovery a game changer for lawyers in Singapore?
What has changed?
Awareness Gained:
The Singapore Academy of Law, the Law Society and local E-Discovery service providers have been relentlessly creating awareness and bridging knowledge in the effective use of
eDiscovery to lawyers in Singapore. It is noteworthy that lawyers are beginning to utilise
eDiscovery as a game changer in their practices. The use of tried and tested eDiscovery protocols, methodologies and solutions as a means to discover and review electronically stored documents (ESD)2 is an inevitable option. This is echoed by Assistant Registrar Shaun Leong in his written judgment for Surface Stone Pte Ltd v Tay Seng Leon and another [2011] SGHC 223: “The advent of new technology has brought about challenges to litigation that (arguably) only technology can resolve”.
Judicial Support:
In October 2009, the Supreme Court of Singapore introduced an “opt-in” practice direction for the discovery and inspection of electronically stored documents (PD 3 of 2009). This marked the beginning of a shift from traditional paper-based discovery (i.e. retrieval and printing of documents from warehouse or client’s office) to a more “Google-Like” approach of getting all structured or unstructured ESD into a centralised database, or better known as an eDiscovery platform. This platform enables one to review culled-down documents using filters such as keyword searches, custodians, document types and date ranges. The PD 3 of 2009 provides an electronic discovery and inspection protocol that can be used as a starting point or guideline for such cases.
We have seen healthy support for PD 3 of 2009. In Deutsche Bank AG v Chang Tse Wen and others [2010] SGHC 125 where one party had chosen not to opt into the framework on the notion that printed copies of the ESD were sufficient to discharge a litigant’s obligation, Senior Assistant Registrar Yeong Zee Kin in his judgment eloquently dispelled this notion together with the perception that eDiscovery was always costly and is only suited for cases with voluminous documents.
Having said that, can the Court insist on the application of PD 3 of 2009 when both parties agree to opt out? This pressing question is answered in the latest Supreme Court Practice Directions Amendment No 1 of 2012 where the amendment in Part IVA gives the Court the power to consent to the application of PD 3 of 2009 at its own motion. This signifies the continuous support of the judicial for the adoption of eDiscovery in Singapore.
The Big Data factor:
Everyone is talking about the big data era where the amount of electronic data will continue to explode exponentially to a stage where we are producing more electronic data than we can manage. This means that lawyers everywhere can no longer rely on pure paper-based discovery as the potential “smoking gun” or consequential evidences is most likely to be buried in the ocean of electronic data located in computers, servers, mobile devices, social media platforms and even up in the “cloud”. We have been seeing more cases where admissible evidence were extracted from computer hard drives, smart phones, CCTV recordings and even Facebook postings.
It is no secret that 2012 is a year of change for eDiscovery in Singapore. PD 3 of 2009 has gone far beyond its “sunrise” period and has been amended to give more authority to the Court to order the application of the eDiscovery framework, coupled with the introduction of a check list of potential issues, to encourage stronger collaboration between parties. The competition amongst eDiscovery vendors is heating up and we are starting to see more flexible and attractive pricing models in Singapore. In addition, the functionality and features of eDiscovery solutions have evolved over the years to include powerful search engines, early case assessment, graphical analytics and even predictive coding, though I will be not be in a rush to use predictive coding anytime soon given the nature of Asian languages that can be tricky to predict.
Finally, for lawyers who agree that eDiscovery is a game changer, I would like to leave you with these words - adopt, adapt and be ahead in the discovery of electronically stored documents.
1 Singapore Supreme Court's Practice Direction No.3 of 2009 on Discovery and Inspection of Electronically Stored Documents
2 ESD = Electronically Stored Documents