Discovery

 

Prior to 2012 The order for discovery in Singapore prior to 2012 is governed by the Rules of Court (Cap 322, R , 200! Rev "d#$ %y the virtue of &rder 2' Rule 1, the Court ay at any tie order any party to a cause or atter to give discovery by a)ing and serving on any other party a list of the docuents *hich are or have been in his possession, custody or po*er, and ay at the sae tie or  subse+uent subse +uently ly also order hi to a)e and file an affidavit affidavit verifying such a list and to serve a copy thereof on the other party$ party$ Provided under &rder 2' Rule 2, the docuents *hich a party to a cause or atter  ay be ordered to discover are (a# the docuents on *hich the party relies or *ill rely and (b# the docuents *hich could (i# adversely affect his o*n case, (ii# adversely affect another   partys case or (iii# support another partys case$

&rder 2' Rule 3 further state that an order under this Rule ay be liited to such docuents or classes of docuents only, or to only such of the atters in +uestion in the cause or atter, as ay be specified in the order$ order$ %y virtue of the &rder above, the order for discovery is sub-ected to the the test of  .necessity/ *here this test is used to deterine *hether the docuents is realy needed in  proving the Plaintiffs clai$ f the order for discovery is used for a ere fishing epedition, the Court *ill not grant the order order$$ Second Secondly ly,, the Paintiff Paintiff in applyi applying ng for the order order for  discovery ust satisfy the re+uireent of *hich the docuents ust be in the posession of  the efendant$ n the case of Deutsche Bank AG v Chang Tse Wen and Others 1, the efendant applied for the order of discovery in providing electronic copies of electronically stored docuents in lieu of inspection under Practice irection o 3 of 2004 (.P352004/# for an order that parties coply *ith an electronic discovery protocol *hen general discovery of  docuents is given in this case $ 6o*ever, the Plaintiffs preliinary ob-ection to this application is that P 352004 does not apply to a situation *here parties have not reached a prior agreeent to adopt an electronic discovery protocol during general discovery$ The Plaintiff argues that the opt7in 1

 

820109 S:6C 12

 

nature of P 352004 eans that, insofar as its applicability during general discovery is concerned, both parties ust first agree to adopt an electronic discovery protocol before P 352004 applies during general discovery$ ;urther, the Plaintiff ob-ects to adoption of such a  protocol as it *ould unfairly pre-udice the since they are ready to proceed *ith general discovery by providing a list of docuents and photocopies of docuents disclosed in the list in the traditional anner$ The efendant argue that the court has etensive po*ers to order copliance *ith  protocol during discovery$ This is either part of the courts inherent po*ers (preserved (pres erved under  &rder 42, rule '# or derived fro the specific provisions in &rder 3'<, *hich is the source of  the courts po*ers to a)e appropriate directions for the -ust, epeditious and econoical disposal of a atter$ The Court held that the opt7in frae*or) operates consistently both during general discovery and *hen applications for further or specific discovery are ade either$ <t the tie of general discovery, *here parties have a pre7eisting agreeent to adopt an electronic discovery protocol, they ay refer any disputes over any proposed ter to the court for  directions, and *here one party see)s to adopt an electronic discovery protocol but the other  does not agree, the party see)ing discovery ay a)e an application under P 352004$ =hile at the tie of post general discovery, discovery, any party see)ing further discovery or specific discovery ay a)e an application under P 352004$ o case is shut out under this construction, unless  parties in the case agree not to apply P 352004 either epressly or tacitly by conduct$ conduct$ Thus, the Court grant the order for discovery on the basis of necessity even the parties ha have ve no nott reac reache hed d a pr prio iorr ag agre ree een entt to ad adop optt an elect electro roni nicc di disco scove very ry pr prot otoc ocol ol as th thee docuents is essential to prove the efendants clais The general rule is that discovery is only allo*ed bet*een plaintiff and defendant and not allo*ed against a stranger or third party ( Norwich Pharmacol Co v Commissioners of  Customs  !"cise )2. espite this, there is al*ays eception to every general rule$

>nder the Rules of Court (Cap 322, R , 200! Rev "d#, &rder 2', Rule ! (1# states that an application for an order for the discovery of docuents before the coenceent of   proceedings shall be ade by originating suons and the person against *ho the order is sought shall be ade defendant to the originating suons$ &rder 2' Rule ! (2# states that an 2

814?'9 <C 133$

 

ap appl plic icat atio ion n after after th thee co co en ence ceent ent of pr proc ocee eedi ding ngss fo forr an or orde derr fo forr th thee di disco scove very ry of  docuents by a person *ho is not a party to the proceedings shall be ade by suons, *hich ust be served on that person personally and on every party to the proceedings$ This sho*s that discovery against third party is perissible in la*$ The essential re+uireents in &rder 2' Rule !(2# !(2# and !(3# are (a# that the application

 

is ade by suons, suons, (b# that it be supported by an affidavit affidavit that describes describes the docuents docuents sought, eplains their relevance, and deposes to the belief that the person against *ho the order is sought has the docuents$ n the case of #mci $td % Tokio Tokio &arine  'ire (nsurance Co )*inga+ore, Pte $td And Others-, the respondent7insured aintained a arine open policy *ith the applicant7

insure ins urer$ r$ <fter <fter the respon responden dent@s t@s clai clai under under the policy policy *as re-ecte re-ected d by the applic applicant ant,, it coenced an action against the applicant for the clai aount$ Central to the dispute  bet*een the parties *as *hether the respondent@s cargo had been daaged during or before transit$ The respondent subitted a photocopy of a cargo chec)list *hich suggested that daage had occurred in transit$ This version of the cargo chec)list *as different fro the original docuent inspected by the applicant *hich suggested that daage had occurred  before shipent$ The respondent@s representative filed an affidavit in *hich it *as stated sta ted that the cargo chec)list had been prepared by the freight7for*arding copany (ABorrisonA# acting  by its representative (AiA#$ ;aced *ith this, the applicant sought a court order copelling Borrison to provide saples of i@s hand*riting found on the originals of siilar chec)lists ade in the noral course of business (Adocuentary saplesA#, and i to a)e and  provide soe specific hand*riting saples (Ahand*riting saplesA#$ Borrison Borris on and i *ere not parties to the action but *ere served *ith and contested the application$ The efendant argue that there is no distinction bet*een the docuentary saples and the hand*riting saples$ The efendant had also ta)en steps in affiring that both of the docuentary saple is the sae$ The court held that this is an order that they are epo*ered to a)e$ t is iplicit fro & 2' r  !(?# that an order ay be ade re+uiring the production of docuents *ould etend to one re+uir re+ uiring ing produc productio tion n of the origin originals als into into the possess possession ion of the applic applicant ant sub-ect sub-ect to any necessary safeguards as to their preservation$ Thus, the order of discovery by the Plaintiff  to*ards a stranger to clai are allo*ed$ 3

 8200!9 ' SR 4

 

n conclusion, under &rder 2' of the Rules of Court (Cap 322, R , 200! Rev "d#  perits the order for discovery$ discovery$ This order also etends to an order for discovery to*ards a stranger *hich is stated in &rder 2' Rule ! of the Rules of Court (Cap 322, R , 200! Rev "d#$