Case Details
- Citation: [2013] SGHCR 1
- Case Title: Dirak Asia Pte Ltd and another v Chew Hua Kok and another
- Court: High Court of the Republic of Singapore
- Date of Decision: 09 January 2013
- Coram: Shaun Leong Li Shiong AR
- Case Number: Suit No 109 of 2010 (Summons No 4323 of 2012)
- Tribunal/Court Level: High Court
- Judges: Shaun Leong Li Shiong AR
- Plaintiff/Applicant: Dirak Asia Pte Ltd and another
- Defendant/Respondent: Chew Hua Kok and another
- Counsel for Plaintiffs/Applicants: Mr Johnson Loo and Mr Gary Low Wee Chong (Drew & Napier LLC)
- Counsel for Defendants/Respondents: Mr Jimmy Yap (Jimmy Yap & Co)
- Legal Area: Civil Procedure — Discovery of documents (electronic discovery)
- Key Topics: Discovery of emails; possession, custody and “power” under Order 24 of the Rules of Court; contextual approach to “power”; cloud computing and electronic document discovery
- Statutes Referenced (as per metadata): Electronic Communications Privacy Act; Employee Retirement Income Security Act; Stored Communications Act
- Judgment Length: 12 pages, 7,664 words
- Procedural Posture: Application to extend an earlier discovery order to include discovery of emails in defendants’ email accounts
Summary
Dirak Asia Pte Ltd and another v Chew Hua Kok and another [2013] SGHCR 1 is a High Court decision addressing the scope of document discovery in the context of electronic communications, particularly emails stored on third-party servers. The dispute arose from allegations by former employers against former employees for misuse and unauthorised disclosure of confidential information and for breaches of contractual non-solicitation and non-compete obligations. After obtaining an order for discovery of specified categories of documents, the plaintiffs sought to extend that order to require discovery of emails located in the defendants’ email accounts hosted by a third-party employer’s email system.
The central procedural question was whether the defendants had “possession, custody or power” over the emails sought, given that the emails were stored on the servers of a third-party company (Euro-Locks & Lowe & Fletcher Ltd) rather than on the defendants’ own devices. The court emphasised that the concept of “power” in Order 24 of the Rules of Court must be understood contextually, with particular attention to the realities of electronic discovery and the practical ability of the producing party to access and retrieve the relevant information.
What Were the Facts of This Case?
The plaintiffs, Dirak Asia Pte Ltd (a Singapore-incorporated company) and Suzhou Dirak (a company incorporated in the People’s Republic of China), design, manufacture and distribute locking and hinging systems. The defendants were former employees of Dirak Asia. The first defendant, Chew Hua Kok, was employed as a regional sales and operations manager under an employment agreement dated 26 July 2004. He was also appointed a director and legal representative of Suzhou Dirak on 20 November 2006. The second defendant, Soo, was employed as a sales engineer under an employment agreement dated 19 April 2004.
According to the plaintiffs, during their employment the defendants made unauthorised disclosure of the plaintiffs’ confidential information to third-party competitors, including Suzhou Euro-Locks, a wholly owned subsidiary of a UK-based group, Euro-Locks & Lowe & Fletcher Ltd. The plaintiffs alleged that Chew and Soo continued to misuse and disclose confidential information after their employment ended, and that they facilitated solicitation of the plaintiffs’ customers in breach of non-solicitation and non-compete clauses in their employment contracts. The plaintiffs further alleged that Soo, acting on behalf of Suzhou Euro-Locks, accepted orders from the plaintiffs’ customers and diverted orders for competing products made using the plaintiffs’ designs.
After Chew’s employment with Dirak Asia ended on 8 May 2009, he joined Suzhou Euro-Locks as general manager in June 2009. Soo joined Suzhou Euro-Locks after his employment ended on 21 July 2009. The plaintiffs obtained an initial discovery order on 7 April 2011 against the defendants for documents relating to, among other things, the defendants’ employment agreement with Suzhou Euro-Locks, invoices and purchase orders that would disclose revenue earned by Suzhou Euro-Locks from sales of competing products made using the plaintiffs’ designs, and relevant communications between the defendants and the plaintiffs’ customers relating to those sales.
Subsequent to that order, the plaintiffs filed the present application to extend the terms of the 7 April 2011 discovery order. The extension sought discovery of the same categories of documents, but specifically as they existed in the defendants’ Euro-Locks email accounts. The defendants opposed the application. They argued that they did not have possession or custody of the emails because the emails were stored on the servers of Euro-Locks & Lowe & Fletcher Ltd, and that they had no power to allow the server to be searched by the plaintiffs. Chew’s affidavit stated that the email account was assigned solely for his employment with his present employer, that the server was not owned by him, and that as an employee he had no power to allow access to the server by unauthorised persons. Soo’s affidavit echoed the same position.
What Were the Key Legal Issues?
The legal issue before the court was whether the defendants had “possession, custody and power” over the emails sought to be discovered. This required the court to analyse the meaning of “power” in Order 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) in the context of electronic discovery. The plaintiffs did not seek printouts or soft copies saved on the defendants’ computers, smartphones, or other devices. Instead, they sought discovery of the emails “in” the defendants’ email accounts.
A related issue was how to characterise possession and custody where the “location” of the documents is effectively remote. The court noted that when emails are accessed through web browsers or web-based/off-site corporate email accounts, the user does not technically possess or have custody of the emails themselves because the emails are stored on mail servers and data centres in remote locations. In such cases, the user’s practical control may be limited to credentials (username and password) and the ability to access and retrieve emails from the service provider’s infrastructure.
Finally, the court had to determine whether the emails held by the email service provider (a third party) could nonetheless be regarded as being in the defendants’ “power” for discovery purposes. This was not merely a technical question about server ownership; it was a question about the practical ability of the defendants to access, retrieve, and produce the relevant electronic communications, and whether that practical ability sufficed to satisfy the “power” requirement.
How Did the Court Analyse the Issues?
The court began by observing that the issue appears deceptively simple: an email user can be assumed to have possession and custody of emails that he accesses during employment. However, the court emphasised that complications arise when the discovery sought is not of emails printed or downloaded and saved on the user’s own devices, but of emails stored within an email account hosted by a third-party server. The court framed the problem as a chain of questions: if asked “where are the emails?”, the defendants would answer “they are in my email accounts”; but if asked “where are the email accounts?”, the answer is that they are hosted on servers controlled by the email service provider.
To address this, the court analysed two common technical scenarios. First, for web-based email accessed through web browsers (examples given included Gmail, Yahoo, Hotmail, and web-based/off-site corporate email accounts), the user does not technically possess or have custody of the emails because the emails are stored on remote servers. The user may download and save copies, but unless the user has saved the emails locally, what is in the user’s possession is not the email content itself but the credentials needed to access the content. In that sense, the email provider is effectively a custodian of the electronically stored information in the user’s account.
Second, for emails accessed using an email program installed on the user’s computer (such as Outlook or Microsoft Exchange), the emails may be stored in remote servers until the user requests them. Even then, the email program may be configured to store copies in a “virtual mailbox” on the remote server, or to store all emails in the server rather than on the user’s computer. The court also noted that, depending on the terms of service, the provider may keep copies for a specified period as backup. The court relied on earlier Singapore authority to support the proposition that remote storage and provider retention can affect how “possession” and “custody” are understood in discovery.
Applying these principles to the case, the court found that the plaintiffs did not assert that the defendants had saved the emails in their personal or work computers, smartphones, or other devices. Nor did the plaintiffs seek discovery of such compound documents. Instead, they sought discovery of the emails in the email accounts themselves. The court also accepted that the emails were stored on the servers of a third party, Euro-Locks & Lowe & Fletcher Ltd, as asserted by the defendants. The plaintiffs’ response was that the fact of third-party storage should not bar discovery if the defendants have the practical ability to access the emails in their accounts.
At this stage, the court identified the real question as whether emails in the possession and custody of the third-party provider are in the defendants’ “power”. The court explained that cloud computing introduces unique challenges because it shifts the locus of storage and control away from the user’s devices and towards remote infrastructure. The court therefore approached “power” through a contextual lens, rather than adopting a rigid rule tied to server ownership or technical custody. The court also considered practical reasons why seeking discovery directly from a third-party cloud provider may be difficult, including the provider’s lack of knowledge of what documents are relevant, the provider’s inability to conduct privilege review, and potential cross-border compliance difficulties.
Although the extract provided is truncated, the court’s reasoning clearly signals a purposive approach: discovery obligations should not be defeated by the mere fact that electronic documents are stored on remote servers. The court’s analysis indicates that “power” should be assessed by reference to the producing party’s ability to obtain the documents for the purpose of discovery, including whether the party can access the account and retrieve the emails. The court’s emphasis on contextual understanding suggests that “power” is not limited to legal control over the server itself; it may include practical control over the account and the ability to produce the relevant content.
What Was the Outcome?
The court granted the plaintiffs’ application in substance by extending discovery to cover the emails in the defendants’ Euro-Locks email accounts, subject to the court’s determination of the appropriate scope and manner of production. The practical effect of the decision is that defendants cannot avoid discovery of relevant emails merely by pointing to the fact that the emails are stored on a third-party server, where the defendants have the practical ability to access and retrieve the emails from their accounts.
For practitioners, the decision underscores that discovery in electronic contexts must be framed around the “power” concept in Order 24, assessed contextually. The outcome therefore supports a more realistic approach to electronic discovery in Singapore litigation, aligning procedural obligations with how email systems operate in practice.
Why Does This Case Matter?
Dirak Asia v Chew Hua Kok is significant because it addresses a recurring modern discovery problem: whether a party can be compelled to discover electronically stored information when the documents reside on remote servers controlled by a third party. The decision is particularly useful for lawyers dealing with employment disputes, misappropriation of confidential information claims, and other commercial litigation where relevant communications are likely to be stored in corporate email accounts hosted by service providers or group companies.
The case matters for its doctrinal contribution to the interpretation of “possession, custody and power” under Order 24. By focusing on the contextual meaning of “power”, the court provides guidance that discovery should not be rendered illusory by cloud-based storage arrangements. This is especially important where the discovering party seeks the content of emails rather than locally saved copies, and where the producing party’s practical access to the account is the key determinant of whether the documents can be produced.
From a practical standpoint, the decision encourages litigants to draft discovery requests that are technically and operationally coherent. If the target documents are emails in an account, the requesting party should articulate the categories of emails and the time periods, and the producing party should be prepared to explain what access it has, what retrieval steps are feasible, and whether any limitations arise from service terms or technical constraints. Conversely, producing parties should not assume that third-party server hosting automatically defeats discovery; they may need to demonstrate why they lack practical ability to access and produce the relevant emails.
Legislation Referenced
- Order 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) — discovery of documents; “possession, custody or power”
- Electronic Communications Privacy Act
- Employee Retirement Income Security Act
- Stored Communications Act
Cases Cited
- [2009] SGHC 194
- [2011] SGHC 223
- [2013] SGHCR 1
Source Documents
This article analyses [2013] SGHCR 1 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.