Part VII: Discovery and Inspection of Electronically Stored Documents

43. Introduction

• Location of electronically stored documents

• Definition of metadata information

44. Time to consider electronic discovery issues during general discovery

45. Requests and applications for the giving of discovery

• Requests for discovery

• Applications for discovery

46. Matters to which regard shall be had in determining whether discovery or inspection is necessary

47. Form of list

48. Inspection of electronically stored documents

• Inspection of computer databases and electronic media or recording devices

49. Supply of copies of electronically stored documents

• Requests for the supply of copies

• Applications for the supply of copies

50. Restriction on use of privileged document, inspection of which has been inadvertently allowed

51. Costs

43. Introduction

(1) This Part provides an opt-in framework for requests and applications for the giving of discovery and inspection of electronically stored documents, and the supply of electronic copies of such documents. A party that seeks to rely on this Part must cite the relevant Practice Direction(s) in any request or application made hereunder.

Location of electronically stored documents

(2) Electronically stored documents may reside in storage management systems, folders or directories in storage locations, electronic media or recording devices, including folders or directories where temporarily deleted files are located (for example, the Recycle Bin folder or Trash folder). Electronically stored documents or parts thereof may also reside in the unallocated file space or file slack on an electronic medium or recording device as deleted files or file fragments which may be recovered through the use of computer forensic tools or techniques.

Definition of metadata information

(3) Metadata information refers to the non-visible and not readily apparent information embedded in or associated with electronically stored documents and may include both application metadata, which is created by the application software used to create the electronic documents, and system metadata, which is created by the operating or storage system. Examples of application metadata include hidden columns or text, formatting and display codes, formulae, prior edits and editorial comments; examples of system metadata include data relating to creation, modification and access of the electronic document, its size, file format and storage location, and other document profile information like title, author, subject and keywords or tags. Metadata information may be stored internally within the electronically stored document or externally in a separate file or database. Externally stored metadata information shall be discoverable as separate documents.

44. Time to consider electronic discovery issues during general discovery

(1) Parties are encouraged to collaborate in good faith and agree on issues relating to the discovery and inspection of electronically stored documents within the framework for discovery set forth in Order 24 of the Rules of Court (Cap. 322, R 5). Such issues may include the scope and/or any limits on documents to be given in discovery, whether parties are prepared to make voluntary disclosures, and the giving of discovery in stages according to an agreed schedule, as well as the format and manner in which copies of discoverable documents shall be supplied.

(2) Parties may, immediately after the close of pleadings, but within the time prescribed in Order 25, Rule 8(1)(a) of the Rules of Court, agree on an electronic discovery protocol which may take the form set forth in Part 1 of Appendix I to these Practice Directions. Parties may include the agreed electronic discovery protocol in the summons for directions. The Court shall consider the adequacy of the agreed electronic discovery protocol and may make such order or give such direction as it thinks fit, for the just, expeditious and economical disposal of the cause or matter. The agreed electronic discovery protocol, as amended by such order or direction of the Court as the case may be, shall form part of the order under the summons for directions to be extracted for the action.

(3) If parties are unable to agree on an electronic discovery protocol, the party seeking discovery of electronically stored documents may apply for an order. The application must include a draft electronic discovery protocol and must be supported by affidavit providing an account of the parties’ attempts to collaborate in good faith to reach agreement on an electronic discovery protocol.

45. Requests and applications for the giving of discovery

Requests for discovery

(1) A request for discovery of any electronically stored document or class of electronically stored documents may be made before the commencement of proceedings, or at any time to any party to a cause or matter, or any person who is not a party to the proceedings. Unless the request specifies that discovery of externally stored metadata information of the requested electronically stored documents is required, the party providing discovery shall not be required to discover externally stored metadata information.

(2) A class of electronically stored documents may be described by specifying or describing a search term or phrase to be used in a reasonable search for electronically stored documents. A request for the giving of discovery by reasonable search must specify or describe limits on the scope of the search; such limits shall include at least the following:

(a) specifying or describing physical or logical storage locations, media or devices; and

(b) specifying the period during which the requested electronically stored documents were created, received or modified.

(3) A request shall not be made for the discovery of deleted files or file fragments containing information which may be recovered through the use of computer forensic tools or techniques unless:

(a) a request is made for the discovery of the electronic medium or recording device on which a forensic inspection is to be conducted; and

(b) a request is made for inspection of the said electronic medium or recording device in compliance with Practice Direction 48 (Inspection of electronically stored documents).

Applications for discovery

(4) An application for discovery of any electronically stored document or class of electronically stored documents which includes externally stored metadata information must be supported by an affidavit showing that a request for externally stored metadata information of the requested electronically stored document or class of electronically stored documents had been made previously.

(5) An application for discovery of any electronically stored document or class of electronically stored documents which specifies or describes a search term or phrase to be used in a reasonable search for electronically stored documents must specify or describe limits on the scope of the search to be conducted.

(6) An application for the discovery of a computer database, electronic medium or recording device may be made together with an application for inspection of the said computer database, electronic medium or recording device in accordance with Practice Direction 48 (Inspection of electronically stored documents).

(7) Upon the hearing of an application for an order for discovery of electronically stored documents, the Court shall have regard to the matters set forth in Practice Direction 46 (Matters to which regard shall be had in determining whether discovery or inspection is necessary).

(8) Nothing in this Practice Direction shall prevent the party giving discovery from reviewing the discoverable electronically stored documents or the results of any reasonable search for the purpose of identifying privileged documents. However, such review for the purpose of identifying privileged documents shall not extend to the deletion, removal or alteration of metadata information.

46. Matters to which regard shall be had in determining whether discovery or inspection is necessary

(1) Order 24, Rules 7 and 13 of the Rules of Court (Cap. 322, R 5) states that an order for discovery and production of documents for inspection shall not be made unless such order is necessary either for disposing fairly of the cause or matter or for saving costs. The matters to which regard shall be had, in determining whether an application for discovery or inspection (including the supply of copies) of electronically stored documents is necessary either for disposing fairly of the cause or matter or for saving costs, shall include:

(a) the number of electronic documents involved;

(b) the nature of the case and complexity of the issues;

(c) the value of the claim and the financial position of each party;

(d) the ease and expense of retrieval of any particular electronically stored document or class of electronically stored documents, including —

(i) the accessibility, location and likelihood of locating any relevant documents,

(ii) the costs of recovering and giving discovery and inspection of any relevant documents,

(iii) the likelihood that any relevant documents will be materially altered in the course of recovery, or the giving of discovery or inspection; and

(e) the significance of any particular electronically stored document or class of electronically stored documents which are likely to be located to the issues in dispute.

47. Form of list

(1) The following matters shall be included in any list of documents made pursuant to the giving of discovery in accordance with this Part in which electronic documents are enumerated:

(a) the name of the electronic file constituting or containing the electronic document; and

(b) the file format (and its version) of the electronic document.

(2) Where the party giving discovery objects to the production of certain discoverable electronically stored documents solely on the ground that the internally stored metadata information is protected by privilege, he must state in the list of documents whether he objects to the production of the electronic documents without the internally stored metadata information. If he does not object to the production of the electronic documents without the internally stored metadata information, he must enumerate the electronic documents in Part 1 of Schedule 1 to the list of documents. In any event, he must enumerate such documents in a separate section in Part 2 of Schedule 1 to the list of documents and shall state that he objects to the production of the whole or part of the internally stored metadata information of these documents.

(3) Reasonable efforts shall be made to remove duplicated documents from the list of documents. A document shall be considered a duplicate of another if the contents of both (including metadata information) are identical. The use of a hashing function to identify duplicates shall be deemed to be reasonable effort.

(4) If copies of electronic documents are supplied in one or more read-only optical disc(s) or other storage medium, the party giving discovery shall provide a further list, at the time when such copies are supplied, stating the following:

(a) the storage format (and its version) of the optical disc or storage medium; and

(b) if there are multiple optical discs or storage media, a list of electronic documents stored on each optical disc or storage medium.

(5) An index of documents enumerated in a list of documents referred to in paragraph (1) or (4) above shall be provided in an electronic, text searchable and structured format. In the absence of parties’ agreement, this index or load file shall be provided in a delimited text file in the Comma Separated Value (or ‘CSV’) file format.

48. Inspection of electronically stored documents

(1) A party required to produce electronically stored documents for inspection under Order 24 of the Rules of Court (Cap. 322, R 5) shall provide reasonable means and assistance for the party entitled to inspection to inspect the electronically stored documents in their native format.

(2) Where an inspection is carried out under Order 24, Rule 9, 10 or 11(1) of the Rules of Court and the inspecting party wishes to take copies of electronically stored documents produced for inspection, his request to take copies shall comply with the protocol set forth in Practice Direction 49 (Supply of copies of electronically stored documents).

Inspection of computer databases and electronic media or recording devices

(3) No request or application for the inspection of any computer database, electronic medium or recording device shall be made unless discovery of the computer database, electronic medium or recording device has been given.

(4) A request may be made for the inspection of an electronic medium or recording device (for which discovery has been given) for the purpose of recovering deleted electronic documents through the conduct of a forensic examination of the unallocated file space or file slack of the electronic medium or recording device using computer forensic tools or techniques.

(5) Where an application under Order 24, Rule 11(2) is made for the inspection of computer databases, electronic media or recording devices for which discovery has been given, the party seeking inspection shall include in his application an inspection protocol, which may take the form found in Part 2 of Appendix I to these Practice Directions, in order to ensure that the party entitled to inspection has access only to electronic documents that are necessary and is not allowed to trawl through the entire database, electronic media or recording device.

(6) Upon the hearing of an application for an order for the inspection of computer databases, electronic media or recording devices, the Court shall have regard to the matters set forth in Practice Direction 46 (Matters to which regard shall be had in determining whether discovery or inspection is necessary). The Court shall have the power to review the adequacy of an inspection protocol and may make such order or give such direction as it thinks fit, for the just, expeditious and economical disposal of the cause or matter.

(7) Nothing in this Practice Direction shall prevent the party producing computer databases, electronic media or recording devices for inspection from reviewing the discoverable electronically stored documents or the results of any reasonable search for the purpose of identifying privileged documents. However, such review for the purpose of identifying privileged documents shall not extend to the deletion, removal or alteration of metadata information.

49. Supply of copies of electronically stored documents

(1) Copies of discoverable electronically stored documents shall generally be supplied in the native format in which the requested electronic documents are ordinarily maintained and in one or more read-only optical disc(s).

(2) Metadata information internally stored in the native format of discoverable electronically stored documents shall not be deleted, removed or altered without the agreement of the parties or an order of Court. Where the party giving discovery objects to the production for inspection of certain discoverable electronically stored documents solely on the ground that the internally stored metadata information is protected by privilege, but does not object to the production of the electronic documents without the internally stored metadata information, copies of such documents may be supplied in a reasonably usable format with all or such of the metadata information over which privilege is claimed removed.

Requests for the supply of copies

(3) A request for copies of discoverable electronically stored documents may specify the format and manner in which such copies are to be supplied. If the party giving discovery does not agree with the specified format or manner or both, he may either:

(a) propose a reasonably usable format and/or storage medium and/or a reasonable manner in which he intends to supply copies of the requested electronic documents; or

(b) in default of agreement, supply copies of the requested electronic documents in accordance with paragraph (1) above.

(4) The party giving discovery shall not be required to supply copies of electronically stored documents in more than one format.

(5) The file format versions set forth in Part 3 of Appendix I to these Practice Directions shall be deemed to be reasonably usable formats for the purpose of this Practice Direction.

Applications for the supply of copies

(6) Applications for the supply of copies of discoverable electronically stored documents shall specify the format and manner in which copies of such electronic documents are to be supplied.

50. Restriction on use of privileged document, inspection of which has been inadvertently allowed

Order 24, Rule 19 of the Rules of Court (Cap. 322, R 5) applies to the giving of discovery or inspection of electronically stored documents, including the supply of copies, as it would to the giving of discovery or inspection of any other document.

51. Costs

(1) Except for orders made in respect of third party or pre-action discovery, the costs of complying with an order for the giving of discovery or inspection of electronically stored documents shall generally be borne by the party giving discovery; and disbursements incurred in providing copies shall be reimbursed by the party requesting for copies.

(2) The Court may invoke its inherent powers under Order 92, Rules 4 and 5 of the Rules of Court (Cap. 322, R 5) to make or give such further orders or directions incidental or consequential to any order as may be necessary, to order the party entitled to discovery to bear the whole or a portion of the costs of compliance with such order for the giving of discovery or inspection of electronically stored documents, and the supply of copies, if such order is necessary to prevent injustice or to prevent an abuse of the process of the Court.