Prior to 2012 The order for discovery in Singapore prior to 2012 is governed by the Rules of Court (Cap 322, R , 200! Rev "d#$ %y the virtue of &rder 2' Rule 1, the Court ay at any tie order any party to a cause or atter to give discovery by a)ing and serving on any other party a list of the docuents *hich are or have been in his possession, custody or po*er, and ay at the sae tie or subse+uent subse +uently ly also order hi to a)e and file an affidavit affidavit verifying such a list and to serve a copy thereof on the other party$ party$ Provided under &rder 2' Rule 2, the docuents *hich a party to a cause or atter ay be ordered to discover are (a# the docuents on *hich the party relies or *ill rely and (b# the docuents *hich could (i# adversely affect his o*n case, (ii# adversely affect another partys case or (iii# support another partys case$
&rder 2' Rule 3 further state that an order under this Rule ay be liited to such docuents or classes of docuents only, or to only such of the atters in +uestion in the cause or atter, as ay be specified in the order$ order$ %y virtue of the &rder above, the order for discovery is sub-ected to the the test of .necessity/ *here this test is used to deterine *hether the docuents is realy needed in proving the Plaintiffs clai$ f the order for discovery is used for a ere fishing epedition, the Court *ill not grant the order order$$ Second Secondly ly,, the Paintiff Paintiff in applyi applying ng for the order order for discovery ust satisfy the re+uireent of *hich the docuents ust be in the posession of the efendant$ n the case of Deutsche Bank AG v Chang Tse Wen and Others 1, the efendant applied for the order of discovery in providing electronic copies of electronically stored docuents in lieu of inspection under Practice irection o 3 of 2004 (.P352004/# for an order that parties coply *ith an electronic discovery protocol *hen general discovery of docuents is given in this case $ 6o*ever, the Plaintiffs preliinary ob-ection to this application is that P 352004 does not apply to a situation *here parties have not reached a prior agreeent to adopt an electronic discovery protocol during general discovery$ The Plaintiff argues that the opt7in 1
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nature of P 352004 eans that, insofar as its applicability during general discovery is concerned, both parties ust first agree to adopt an electronic discovery protocol before P 352004 applies during general discovery$ ;urther, the Plaintiff ob-ects to adoption of such a protocol as it *ould unfairly pre-udice the since they are ready to proceed *ith general discovery by providing a list of docuents and photocopies of docuents disclosed in the list in the traditional anner$ The efendant argue that the court has etensive po*ers to order copliance *ith protocol during discovery$ This is either part of the courts inherent po*ers (preserved (pres erved under &rder 42, rule '# or derived fro the specific provisions in &rder 3'<, *hich is the source of the courts po*ers to a)e appropriate directions for the -ust, epeditious and econoical disposal of a atter$ The Court held that the opt7in frae*or) operates consistently both during general discovery and *hen applications for further or specific discovery are ade either$ <t the tie of general discovery, *here parties have a pre7eisting agreeent to adopt an electronic discovery protocol, they ay refer any disputes over any proposed ter to the court for directions, and *here one party see)s to adopt an electronic discovery protocol but the other does not agree, the party see)ing discovery ay a)e an application under P 352004$ =hile at the tie of post general discovery, discovery, any party see)ing further discovery or specific discovery ay a)e an application under P 352004$ o case is shut out under this construction, unless parties in the case agree not to apply P 352004 either epressly or tacitly by conduct$ conduct$ Thus, the Court grant the order for discovery on the basis of necessity even the parties ha have ve no nott reac reache hed d a pr prio iorr ag agre ree een entt to ad adop optt an elect electro roni nicc di disco scove very ry pr prot otoc ocol ol as th thee docuents is essential to prove the efendants clais The general rule is that discovery is only allo*ed bet*een plaintiff and defendant and not allo*ed against a stranger or third party ( Norwich Pharmacol Co v Commissioners of Customs !"cise )2. espite this, there is al*ays eception to every general rule$
>nder the Rules of Court (Cap 322, R , 200! Rev "d#, &rder 2', Rule ! (1# states that an application for an order for the discovery of docuents before the coenceent of proceedings shall be ade by originating suons and the person against *ho the order is sought shall be ade defendant to the originating suons$ &rder 2' Rule ! (2# states that an 2
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ap appl plic icat atio ion n after after th thee co co en ence ceent ent of pr proc ocee eedi ding ngss fo forr an or orde derr fo forr th thee di disco scove very ry of docuents by a person *ho is not a party to the proceedings shall be ade by suons, *hich ust be served on that person personally and on every party to the proceedings$ This sho*s that discovery against third party is perissible in la*$ The essential re+uireents in &rder 2' Rule !(2# !(2# and !(3# are (a# that the application
is ade by suons, suons, (b# that it be supported by an affidavit affidavit that describes describes the docuents docuents sought, eplains their relevance, and deposes to the belief that the person against *ho the order is sought has the docuents$ n the case of #mci $td % Tokio Tokio &arine 'ire (nsurance Co )*inga+ore, Pte $td And Others-, the respondent7insured aintained a arine open policy *ith the applicant7
insure ins urer$ r$ <fter <fter the respon responden dent@s t@s clai clai under under the policy policy *as re-ecte re-ected d by the applic applicant ant,, it coenced an action against the applicant for the clai aount$ Central to the dispute bet*een the parties *as *hether the respondent@s cargo had been daaged during or before transit$ The respondent subitted a photocopy of a cargo chec)list *hich suggested that daage had occurred in transit$ This version of the cargo chec)list *as different fro the original docuent inspected by the applicant *hich suggested that daage had occurred before shipent$ The respondent@s representative filed an affidavit in *hich it *as stated sta ted that the cargo chec)list had been prepared by the freight7for*arding copany (ABorrisonA# acting by its representative (AiA#$ ;aced *ith this, the applicant sought a court order copelling Borrison to provide saples of i@s hand*riting found on the originals of siilar chec)lists ade in the noral course of business (Adocuentary saplesA#, and i to a)e and provide soe specific hand*riting saples (Ahand*riting saplesA#$ Borrison Borris on and i *ere not parties to the action but *ere served *ith and contested the application$ The efendant argue that there is no distinction bet*een the docuentary saples and the hand*riting saples$ The efendant had also ta)en steps in affiring that both of the docuentary saple is the sae$ The court held that this is an order that they are epo*ered to a)e$ t is iplicit fro & 2' r !(?# that an order ay be ade re+uiring the production of docuents *ould etend to one re+uir re+ uiring ing produc productio tion n of the origin originals als into into the possess possession ion of the applic applicant ant sub-ect sub-ect to any necessary safeguards as to their preservation$ Thus, the order of discovery by the Plaintiff to*ards a stranger to clai are allo*ed$ 3
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n conclusion, under &rder 2' of the Rules of Court (Cap 322, R , 200! Rev "d# perits the order for discovery$ discovery$ This order also etends to an order for discovery to*ards a stranger *hich is stated in &rder 2' Rule ! of the Rules of Court (Cap 322, R , 200! Rev "d#$