Case Details
- Citation: [2013] SGHCR 1
- Title: Dirak Asia Pte Ltd and another v Chew Hua Kok and another
- Court: High Court of the Republic of Singapore
- Date: 09 January 2013
- Coram: Shaun Leong Li Shiong AR
- Case Number: Suit No 109 of 2010 (Summons No 4323 of 2012)
- Tribunal/Court: High Court
- Decision Date: 09 January 2013
- 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 Areas: Civil Procedure — Discovery of documents
- Key Topics: Discovery of emails; electronic discovery; possession, custody and “power” under Order 24 of the Rules of Court; contextual approach to “power”; cloud computing
- Statutes Referenced (as stated in metadata): Electronic Communications Privacy Act; Employee Retirement Income Security Act; Stored Communications Act
- Rules Referenced: Order 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)
- Judgment Length: 12 pages, 7,664 words
- Cases Cited (as stated in metadata): [2009] SGHC 194; [2011] SGHC 223; [2013] SGHCR 1
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 documentary discovery in the context of electronic records stored on third-party servers. The dispute arose from allegations by former employers against former employees and their subsequent employers, centred on alleged breaches of fiduciary duties and contractual non-solicitation and non-compete obligations. The plaintiffs sought to extend an existing discovery order to include discovery of emails located in the defendants’ email accounts hosted by a third-party organisation, rather than limiting discovery to emails saved locally on the defendants’ devices.
The central procedural question was whether the defendants had “possession, custody and power” over the emails, given that the emails were stored on servers controlled by a third party (Euro-Locks & Lowe & Fletcher Ltd). The court emphasised that the concept of “power” under Order 24 must be understood contextually, particularly in light of modern email architecture and the realities of “cloud” or remote storage. Ultimately, the court’s reasoning reflects a pragmatic approach: where an email user has the practical ability to access and retrieve the emails in their account, the emails may be treated as being within the user’s “power” for discovery purposes, even if technical ownership of the server lies with the email service provider.
What Were the Facts of This Case?
Dirak Asia Pte Ltd (“Dirak Asia”) is a Singapore-incorporated company engaged in designing, manufacturing and distributing locking and hinging systems. Its Chinese affiliate, Suzhou Dirak (incorporated in the People’s Republic of China), is also involved in the same business. The plaintiffs alleged that the defendants, during their employment, made unauthorised disclosure of confidential information to competitors, including Suzhou Euro-Locks, a wholly owned subsidiary of a UK-based group, Euro-Locks & Lowe & Fletcher Ltd.
The first defendant, Chew Hua Kok (“Chew”), was employed by Dirak Asia as a regional sales and operations manager from 23 August 2004 under an employment agreement dated 26 July 2004. Chew was also appointed a director and legal representative of Suzhou Dirak on 20 November 2006. The second defendant, Suo (“Soo”), was employed by Dirak Asia as a sales engineer from 12 April 2004 under an employment agreement dated 19 April 2004. The plaintiffs’ case was that both defendants, in the course of their employment, facilitated the diversion of business and the misuse of confidential designs and information for the benefit of competitors.
After Chew’s employment ended on 8 May 2009, he joined Suzhou Euro-Locks as its general manager in June 2009. Soo joined Suzhou Euro-Locks after his employment ended on 21 July 2009. The plaintiffs alleged that the defendants continued to misuse and disclose confidential information after joining the competitor. They further alleged breaches of non-solicitation and non-compete clauses in the employment agreements, including facilitating solicitation of the plaintiffs’ customers.
In the course of litigation, the plaintiffs obtained an order for discovery on 7 April 2011 against the defendants for documents relating to, among other things, the defendants’ employment agreements 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 such sales. Subsequently, the plaintiffs applied to extend the discovery order to include discovery of the same categories of documents found in the defendants’ Euro-Locks email accounts.
What Were the Key Legal Issues?
The principal legal issue was whether the defendants had “possession, custody and power” over the emails sought to be discovered. The plaintiffs were not merely seeking discovery of emails printed out or saved as files on the defendants’ local devices (such as computers, smartphones, or other storage media). Instead, they sought discovery of emails located within the defendants’ email accounts hosted by Euro-Locks & Lowe & Fletcher Ltd.
In opposing the application, the defendants 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. They further contended that they lacked “power” to allow the server to be searched, as the server was not owned or controlled by them. Chew’s affidavit stated that the email account was assigned to him solely for his employment with his current employer, that the server was not owned by him, and that as an employee he had no power to allow unauthorised access to the server.
The plaintiffs, by contrast, argued that the defendants had practical control because they could access and retrieve the emails in their email accounts. The legal question therefore became whether, for the purposes of Order 24, emails stored on a third-party server are in the “power” of the email user who can access them through credentials and account access, even though the user does not technically own or control the server infrastructure.
How Did the Court Analyse the Issues?
The court began by framing the issue as deceptively simple: if a person accesses emails during employment, one might assume that the person has possession and custody of those emails. However, the court observed that complications arise when the discovery sought is not limited to physical printouts or local copies of emails, but instead targets the emails “in the email accounts” themselves. The court posed a practical series of questions: where are the emails, and where are the email accounts? The answers, in the modern context, lead to remote storage and “the cloud”.
In its analysis of possession and custody, the court explained that for web-based or off-site email accounts, the email user does not technically possess or custody the emails because the emails are stored on mail servers and data centres in remote locations. In such cases, unless the user downloads and saves copies locally, what the user possesses is effectively the username and password needed to access the emails. The court analogised the email provider to a custodian of the electronically stored information in the user’s email account. Similarly, even where emails are accessed using installed email programs (such as Outlook or Exchange), the emails may remain stored on remote servers, either until requested or as part of configuration settings that store copies in a “virtual mailbox” or maintain server-side backups.
On the facts, the plaintiffs did not assert that the defendants had saved the emails in local devices, nor did they seek discovery of such locally saved compound documents. The plaintiffs also did not dispute that the emails were stored on the servers of Euro-Locks & Lowe & Fletcher Ltd. The plaintiffs’ position was therefore not that the defendants had technical custody of the server-stored emails, but that the existence of third-party server storage should not bar discovery if the defendants have the practical ability to access the emails in their accounts.
This shifted the court’s focus to the concept of “power”. The court noted that the question of power over documents in the possession and custody of a third party illustrates the unique challenges of electronic discovery in the era of cloud computing. The court identified practical reasons why discovery against a third-party cloud provider may be problematic: the provider may not know which documents are relevant to the dispute, may not be able to conduct privilege review, and may face jurisdictional constraints if the provider is located in a different country. These considerations supported a contextual approach rather than a purely technical one.
Accordingly, the court held that “power” under Order 24 should be understood contextually. The court’s reasoning proceeded from the purpose of discovery: to enable a party to obtain relevant documents within the scope of the rules. In the email context, the user’s ability to access and retrieve emails through the account—despite the server being owned and operated by a third party—can amount to “power” over those emails for discovery purposes. The court rejected the defendants’ narrow view that “power” requires the ability to permit a search of the server by outsiders. Instead, the relevant inquiry is whether the producing party can practically obtain the documents from the account environment.
While the truncated extract does not reproduce the court’s later detailed application and final determination, the decision’s framing indicates that the court was prepared to treat account-level access as sufficient to satisfy the “power” requirement, at least where the producing party can retrieve the emails and produce them for inspection. The court’s discussion of cloud computing and the architecture of email systems underscores that discovery rules must operate effectively in a world where the “document” is electronically stored remotely and accessed through credentials.
What Was the Outcome?
On the application to extend the terms of the earlier discovery order, the court addressed whether the defendants could be compelled to discover emails located in their employer-hosted email accounts. The court’s analysis of possession, custody and “power” in the context of remote storage supported the plaintiffs’ argument that third-party server custody does not necessarily defeat discovery obligations where the defendants have practical access to the emails in their accounts.
Practically, the decision provides that discovery can extend to emails stored on third-party servers when the producing party has the ability to access and retrieve those emails from the account. This reduces the risk that parties can avoid discovery by relying on the technical fact that the server is owned by a third party, rather than by demonstrating that they genuinely cannot obtain the relevant emails for production.
Why Does This Case Matter?
Dirak Asia v Chew Hua Kok is significant because it is an early and influential Singapore authority on electronic discovery in the cloud era. It clarifies that the “possession, custody and power” requirement in Order 24 is not to be applied mechanically. Instead, courts must adopt a contextual understanding that reflects how electronic documents are actually stored and accessed, particularly where emails reside on remote servers.
For practitioners, the case is useful in two main ways. First, it informs how to draft and pursue discovery requests for emails: parties should focus on the producing party’s ability to access and retrieve account-stored emails, rather than assuming that server ownership by a third party automatically prevents discovery. Second, it guides how to respond to objections based on lack of custody or control: defendants should not rely solely on technical arguments about server ownership if they can practically obtain the emails from their accounts.
More broadly, the decision supports the policy that discovery should be effective and not undermined by modern storage practices. It also highlights the practical limitations of seeking discovery directly from cloud providers, including relevance, privilege review, and cross-border compliance issues. As a result, the case strengthens the ability of litigants to obtain electronic evidence from parties who used and controlled the accounts, even where the underlying storage infrastructure is external.
Legislation Referenced
- Electronic Communications Privacy Act
- Employee Retirement Income Security Act
- Stored Communications Act
- Order 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)
Cases Cited
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.