Amendments 2012

Amendment No 1 of 2012

Part IVA of the Supreme Court Practice Directions (“Part IVA”), which has been effective since 1 October 2009, has undergone some amendments. Amendment No. 1 of 2012 of the Practice Directions has taken effect on 1 March 2012. The changes, which were implemented following a review of the discovery process and after considering feedback from the public consultation exercise and the relevant stakeholders, seek to streamline the procedure on discovery. For instance, in the area of e-discovery the changes introduce an option for parties to conduct discovery by the direct exchange of electronic copies, with inspection deferred.

Why e-discovery and not “traditional” discovery?

Today, much of business and personal correspondence are in e-mails or initially created on a computer and then printed. E-discovery provides a framework to facilitate requests for discovery and copies of documents that exist in an electronic form in the clients’ possession.

Search engines to power productivity and costs savings

The large amount of electronic information stored these days has made it very difficult for lawyers and litigants to identify documents which ought to be disclosed in compliance with their discovery obligations. Search engines enable the use of keywords as search terms to identify documents. Part IVA sets out the legal framework governing the use of search engines in the process of identifying discoverable documents.

Keyword searches provide a convenient and efficient method for identifying discovery documents. After the conduct of a keyword search, the party giving discovery would have discharged his discovery obligations, thus obviating the necessity for a tedious further review of search results for relevance. However, a privilege review may be conducted within a reasonable time by the party giving discovery, to ensure that privileged matter is not inadvertently disclosed to its opponent. This potentially renders the painstaking – and time consuming — trawling through of electronic storage media and repositories for discoverable material a thing of the past.

As the manner of execution of a search can be calibrated to suit each particular case by way of an e-discovery plan (parties can, for example agree on discovery in stages, or for searches to be conducted on a sample size of documents to ascertain the efficacy of search terms), e-discovery is the way to go to ensure savings of costs and time.

Helping lawyers and clients to identify suitable cases

To assist parties and/or their solicitors in deciding whether electronic discovery is appropriate in any particular case, two measures have been introduced. First, a list of the type of cases where electronic discovery would be appropriate has been provided in para 43(1A). These are cases where technology can most likely assist in increasing the productivity of lawyers and may lead to costs savings for clients. Thus, while Part IVA applies to all civil proceedings, parties should consider the application of Part IVA if their case falls within one of the categories in the list.

Second, to assist parties in their good faith discussions and to facilitate agreement on issues relating to the discovery and inspection of electronically stored documents, a checklist of questions is introduced at Appendix E Part 1. Counsel should go through the checklist with their clients and exchange their answers before meeting for good faith discussions.

Managing scope and costs of discovery

Part IVA has been amended to clarify that the entirety of Part IVA is intended to provide a framework for proportionate and economical discovery, inspection and supply of electronic copies of documents (see para 43A(1)).

The purpose of such change is not to supplant the traditional tests of relevance and necessity in O 24 of the Rules of Court. The amendment expressly states that in determining whether the application of any paragraph(s) in Part IVA is appropriate where discovery or inspection is to be conducted pursuant to O 24 of the Rules of Court, the court will be mindful that the incurring of costs is not per se a sufficient objection to e-discovery under Part IVA, as long as the expenses incurred may be justified by the relevance and materiality of the discoverable documents.

For instance, para 43D(2) now provides that a party requesting or making an application for a reasonable search to be conducted on documents that are not reasonably accessible (as defined in para 43A(4)) must demonstrate that the relevance and materiality of electronically stored documents justify the cost and burden of retrieving and producing them.

Discovery by direct exchange of electronic copies

One further benefit is the potential to reduce the time and expense required for disclosure and inspection of documents, viz under the “traditional” discovery regime, which involves making a detailed list of documents and taking photocopies after inspecting each document. Much effort and time can be saved if parties proceed under the new framework provided for under paragraph 43J of Part IVA. Under this framework, Parties opting for this route would discharge their obligations to provide discovery and give inspection by simply supplying electronic copies of the discoverable documents. A detailed list of documents is dispensed with in favour of providing a meaningful description for each category or sub-category of documents. Inspection will also be deferred and ordered when necessary.

A summary of these and other amendments may be found in the annexed documents.

Part IVA Practice Directions Amendment No. 1 of 2012 (marked)

Part IVA Practice Directions Amendment No. 1 of 2012 (clean)

Summary of amendments to Part IVA of the Practice Directions

Amendment No 2 of 2012

Amendment No 3 of 2012

In conjunction with the implementation of the new integrated Electronic Litigation System (“eLitigation”), the Supreme Court Practice Directions (“the PD”) have been updated and amended.

The amendments to the PD fall within the following categories:
(a) Amendments to reflect the workflow utilised by eLitigation instead of the Electronic Filing System (“EFS”);
(b) Amendments to provide directions for the use of eLitigation;
(c) Amendments to delete otiose processes and unnecessary details; and
(d) Editorial amendments.

A summary of these and other amendments may be found in the annexed documents.

Supreme Court Practice Directions Amendment No. 3 of 2012 - (marked)

Supreme Court Practice Directions Amendment No. 3 of 2012 - (clean)

Summary of amendments to the Supreme Court Practice Directions

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