CASE UPDATE - APRIL 2010
Deutsche Bank AG v Chang Tse Wen and others [2010] SGHC 125 is the first case on PD3 of 2009.
The decision is by Yeong Zee Kin, SAR, who had very kindly joined us at our “Essential E-Discovery Course” in February this year.
SIGNIFICANCE OF CASE:
1. This case clarifies important aspects of PD3; including the unusual “opt-in” feature and how practitioners should respond to e-discovery requests even if they do not wish to initiate PD3 themselves.
2. The case also illustrates the use of PD3 in a relatively commonplace dispute scenario of bank customer suing / counter-suing the bank
CASE SUMMARY:
Plaintiff is the Deutsche Bank (represented by Allen & Gledhill LLP) who is suing their customer for recovery of outstanding loans. The Defendant, represented by Rajah & Tann LLP counter-sued the Bank, its employee and former relationship manager for misrepresentation and breaches of fiduciary duties and duties of skill and care.
Allen & Gledhill argued against e-discovery of electronic evidence on the basis (inter alia) that
(a) Documents were NOT voluminous (9 arch files);
(b) Meta-data was not an issue;
(c) Their Client had provided them with the relevant documents in hard copies;
(d) Technical difficulties resulting from the fact that Allen & Gledhill’s office email software is Outlook (while their clients used Lotus Notes), and the incompatibility would increase the cost of e-discovery.
COMMENTARY:
SAR Yeong Zee Kin took the opportunity to dispel misconceptions about e-discovery, including the perception that e-discovery is (i) always costly; and (ii) only suitable for cases with voluminous documentation.
He also examined Allen & Gledhill’s assumption that providing printed copies of electronic documents is sufficient to discharge a litigant’s obligation to give inspection of electronic documents; and concluded that, “given the level of technology and connectivity today, the feasibility of providing a soft copy in the native format should be considered in preference to printed copies”
What I found particularly useful and interesting is the costs vs benefits analysis undertaken by SAR Yeong in the circumstances of this case; which included (i) international elements (the bank’s email servers are located in Hongkong and (ii) the fact that the Plaintiff’s solicitor (Allen & Gledhill) had already collated hard copies of the documents for discovery and would have to incur additional costs to provide the documents in its native format.
The judgment is well-structured, well-reasoned and written with minimal technical jargon. The decision also addresses what could potentially have been difficult issues in a fair, creative and pragmatic way, with cost issues being a foremost concern.
I only wish the decision had also involved a consideration of Rajah & Tann’s draft e-discovery protocol; especially in relation to their suggested keywords – but SAR Yeong has deferred that elucidation to the further discovery stage.
I won’t give the game away as to the outcome of the case and the orders made. Do take time to read it, as it will have a significant impact on your interactions with your client and opposing counsel; and on case management and strategy. CLICK HERE to read judgment.
Enjoy!
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