Bits & Bytes from Litigation Edge

On 19 October 2011, the Supreme Court of Singapore released a public consultation paper entitled “Review of Discovery in Civil Litigation” (the “consultation paper”). The review seeks feedback on various proposals by the Rules of Court Working Party (the “ROCWP”) to address concerns regarding time, costs and procedure employed in the discovery process, and in particular, the test to be applied in determining the scope of electronic discovery.

Here is a summary of the Reforms to the Electronic Discovery Regime proposed in the consultation paper -

1. Order 24, Rule 1 of the Rules of Court be amended so that it becomes mandatory for parties to adopt electronic discovery where -
a. more than 200 documents relevant to the proceedings have been created, or are stored in electronic format; and
b. the use of technology in the management of documents and conduct of the proceedings will facilitate the quick, inexpensive and efficient resolution of the matter.

2. Making it mandatory for parties to meet and discuss the adoption of a discovery plan for both hard copy and electronic documents.

3. Making it mandatory for parties to adopt search terms during general discovery in lieu of a manual review of documents under Order 24, Rule 1(2).

4. Certain categories of documents are presumed to be “not reasonably accessible” to save time and costs.

5. The Court may order that the party seeking discovery bear part or all of the costs for producing the documents sought where the documents are not reasonably accessible and the party seeking discovery has not been able to demonstrate that the documents sought are sufficiently material.

6. To encourage the adoption of electronic discovery plans. And where an electronic discovery plan is in place, to allow the conduct of discovery by direct exchange of documents and for inspection to be deferred and ordered only when shown to be necessary.

7. The imposition of cost sanctions where an “over-inclusive” approach to discovery is adopted.

8. To allow a differentiated approach, or a “menu” of different approaches for the adoption of varying standards of disclosure to alleviate the cost of discovery and avoid unnecessarily broad discovery exercises particularly in complex litigation cases.

CLICK HERE to read the full Consultation Paper.

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The Consultation Team at Litigation Edge submitted a response to the Consultation Paper to share our insights gained from on-the-ground experience of working with trial lawyers on a range of litigation matters. We proposed the adoption of a holistic approach that would encourage the development of a flourishing electronic discovery culture and widespread adoption of electronic discovery processes.

A summary of our comments and suggestions submitted in response to the Consultation Paper is set out here -

1.       FACT – Managing documents in digital format instead of paper in hard copy physical form results in substantial cost savings. We demonstrate this by presenting a cost metrics of 4 volume-sets, ranging from 400 documents to 70,000 documents. The results show that cost savings in managing digital documents as opposed to paper rises steeply the more voluminous the document volume. Additionally, the savings in costs are even more significant if electronic document management processes continues right up to the trial stage, and “e-trials” (or paperless trials deploying electronic bundles) are implemented.

2.     To encourage the exchange of documents in electronic format instead of paper, and eventually to create a cultural shift so that electronic exchange becomes the norm, we recommend that electronic exchange be mandated for all cases where the volume of documents to be produced at discovery exceeds 1000. Where the volume does not exceed 1000 documents, litigants can still save costs by delivering the same  in electronic format (for example, in text-searchable PDF) without having to deal with the technical issues and related challenges of a full blown PD3-mandated discovery.

3.       In the document review process, we have found litigation lawyers to be uncomfortable with the suggestion that human review of the documents (for relevance) be replaced by keyword search engines, even if there are significant savings in costs for their clients.

4.       For Cost Effective electronic discovery, we recommended the following steps -

a.       Reduce the scope for unnecessary and prolonged arguments over technical issues such as type of search engine, search and sampling  methodology, load file formats etc by prescribing a definitive set of “technical” guidelines and requiring all parties to conform to prescribed standards, checklists and questionaires.

b.      Develop and run “Electronic Discovery Awareness Programs” targetted at the law firm’s clients (corporations and corporate legal departments) to raise awareness of the potential benefits of electronic discovery and the impact of electronic discovery on the corporation’s document retention policies.

c.       Develop a competent pool of litigation support personnel with the necessary training and exposure to all aspects of the electronic discovery reference model so that as valuable members of the litigation team, they can provide litigation lawyers with technical and process support.

d.      Remove doubt by making clear that the cost of electronic discovery is recoverable on a “party to party” basis.

e.      Implement measures to reduce the cost of data collection by forensic experts. Our recommendation is to “commoditize” the data collection process through the prescription of a “no-frills” data collection report in cases where there are no allegations of deleted data.

f.        Clarify the scope of data preservation duties of litigants, and providing checklists and guidelines.

If you would like to read our full response to the consultation paper, click here

We also welcome your feedback on our proposals and would love to hear from you.  Write to slim@litiedge.com