This spring, about 25 practitioners participated in an informal roundtable at the new Supreme Court of Singapore for an informal benchmarking discussion. It was organized by the non-profit organization, Electronic Discovery Institute, and made possible with the assistance of the court's Senior Assistant Registrar and CIO Zee Kin Yeong. Yeong previously served as a partner in Rajah & Tann (IT and intellectual property) and started his career as a deputy public prosecutor and state counsel with the Attorney-General's Chambers, where he prosecuted inter alia computer and white collar crimes. In his current position, Yeong's position mirrors that of a federal magistrate judge in the U.S.
Others participating at the April 10th gathering were assistant registrars included Lee Siew Hui Jacqueline; James Elisha Lee Han Leong; Miyapan Ramu; and Jean Chan Lay Koon. The two-hour session also drew lawyers from accounting firms; plaintiff, defense, and corporate counsel. U.S. participants included UBS' Wayne Matus, managing director, and Jamie Brown, global discovery counsel.
Yeong kicked off the event with a historical perspective on e-discovery in Singapore. In 2009, the Singapore Supreme Court launched its first Practice Directive to deal with the growing volume of electronic evidence in litigation, he said. “We always focused on a set of directions that would guide the profession on how to handle electronic requests … to provide a framework and put in place standards for the profession. To ensure that the profession has the skills and the tools to handle electronic documents in an efficient and cost effective manner.”
In 2012, the court responded to concerns that the 2009 Practice Directive was too technical and returned for a revision, 2012 Practice Directive, the current version. Not by coincidence, it focuses on points similar to those that have emerged in the U.S. federal courts: from metadata to proportionality of costs. The Practice Directive includes a checklist of issues for good faith collaboration that is similar to the Cooperation Proclamation lead by The Sedona Conference. The 2012 edition also moved the directive to a mandatory opt-in framework, explained Yeong. “What is the meaning of an opt-in framework? Whether a case has 1 million or 5 thousand documents, [litigants] must consider using it.”
Yeong identified discovery trends in the Singapore Court System. The court has recently seen the PD as a frequently-used tool in litigation against large entities—as a method of getting discovery materials and forensic images in an employment matter. Litigants also have used the PD to obtain documents from large technology companies that relate to intellectual property disputes. He also identified a trend of young enterprising lawyers using the PD to limit the scope of request—a focus on proportionality.
Unlike the mandatory "Brady" and "Giglio" disclosures required in the U.S., there is no corollary criminal PD for exchange of discovery in Singapore, he said. The 2011 amendments to Singapore Criminal Procedure account for limited discovery, but nothing like those in the U.S., said Yeong. Even so, the deputy public prosecutor is considering new developments now, he noted.
Matus clarified that unlike Singapore, the U.S. is made up of an amalgam of state and local jurisdictions—it's not just the federal courts that we see in headline-making opinions. He responded to Yeong’s observations with five significant U.S. trends.
1. Discovery data volumes and costs are massive compared to those in Singapore, observed Matus. A matter might have 40 terabytes of data and hundreds of people reviewing information, he said. With hundreds of cases, costs can be many millions of dollars. "The proliferation of data is changing things."
2. In Singapore, the use of search terms is becoming more common, but the use of search terms in the U.S. is changing, he said. “Search terms are dying.” Litigants are replacing search terms with advanced search and analytics as a result of search term inefficiency. “Search terms might find five documents that are not relevant for every one document that is.”
3. There is an increased mandate for cooperation in the U.S. “Judges don’t have time. There is a need for early judicial involvement to force parties to cooperate,” said Matus. The trend of lawyers receiving sanctions is very real, he said—a concept that troubled may of the participants E-discovery is becoming a case within a case, he said, and the argument is not about the merits of a case, but whether a document existed or not.
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