Anyone who has been involved with litigation will understand the hassles of the process of discovery. Discovery is a continuing obligation of the parties to litigation that takes place after pleadings (e.g. Statement of Claim, Defence, Reply) have been closed. Parties must disclose documents to the other parties to the litigation, whether or not such documents are supportive of or damaging to their case.

The obligation, however, does not extend to all documents which are related to the parties in the litigation. Parties to the litigation are required only to disclose documents which are in their "possession, custody or power" and which are not "privileged" (ie documents which do not need to be produced on the ground of some special interest recognized by the law). Further, the parties only need to disclose documents that are "relevant". Whether or not a document is "relevant" depends on the issues raised in the pleadings. In the past, the courts in Hong Kong have defined the word "relevant" very broadly. However, since the case of A v B [1998] HKLRD L28, the Hong Kong courts have taken a narrower view so that only documents which are clearly connected to issues raised in the proceedings are required to be disclosed.

As you would expect, the expression "documents" also extends to electronic data. Case law has held that "a document means anything upon which evidence or information is recorded in a manner intelligible to the sense or capable of being made intelligible by the use of equipment". In fact, it has even been held that a computer database (provided that such information is retrievable and readable) is a "document". As such, one can imagine with the increased use of emails and computers that the number of documents which can now be disclosed have expanded at an alarming rate.

Considerations for electronic discovery

Based on the above definition of "document", one might argue whether a device such as a computer itself is a "document" (and thus disclosable) as it falls within the definition "anything upon which evidence or information is recorded in a manner intelligible to the sense". However, more likely than not, in most circumstances, it is the files saved inside the computer which should be disclosed and not the computer itself. To avoid having to "disclose" the computer itself and thus revealing potentially irrelevant and privileged material which may be contained within it, it is suggested that parties should take a more practical and reasonable approach during discovery both when they disclose their documents and when they request other parties to disclose theirs.

That said, parties should not forget their duty to make reasonable searches on the "relevant" documents which are in their "possession, power and custody" during the discovery process.

What is "reasonable" depends on a case by case basis. To date, neither the Hong Kong courts nor the procedural rules have provided any guidelines on the extent of disclosure of electronic documents. This is particularly frustrating as unlike paper documents, electronic documents can come in many forms. For instance, apart from data which we can easily access on our computer, there may be "hidden" data which only IT professionals can retrieve.

One should therefore draw a line upon which electronic documents should be disclosed. It has been suggested in England that the following non-exhaustive factors may be considered in deciding whether the search is "reasonable" :-

  1. The number of documents involved;
  2. The nature and complexity of the proceedings;
  3. The ease and expense of retrieval of any particular document; and
  4. The significance of any document which is likely to be located in the search.

Setting up a file management system

In addition to the above, parties, especially corporate litigants, can actually take steps to better manage electronic documents even before disputes arise in order to facilitate the search and minimize the costs of retrieving those documents during discovery. This can be done by contracting with outside IT support consultants or hiring an in-house IT officer to set up a centralized and systematic file management system which should be followed by all levels of staff inside the company e.g. devising certain guidelines for its employees to follow whenever they create, save and delete files and putting in place a document retention system for managing older files which are no longer active. By doing this, a company will be more assured that it has undertaken "reasonable" searches for electronic documents during discovery. This will ultimately reduce the time, effort and costs in locating documents and your lawyer’s fees in reviewing them. Finally, it will also prevent inadvertent disclosure of potentially privileged and confidential documents.

Our Litigation Department has experienced lawyers in a wide range of commercial and civil litigation matters. If you have any question regarding the above article, please do not hesitate to contact us.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.