Case Details
- Title: Dirak Asia Pte Ltd and another v Chew Hua Kok and another
- Citation: [2013] SGHCR 1
- Court: High Court (Registrar)
- Decision Date: 09 January 2013
- Coram: Shaun Leong Li Shiong AR
- Case Number: Suit No 109 of 2010 (Summons No 4323 of 2012)
- Plaintiff/Applicant: Dirak Asia Pte Ltd and another
- Defendant/Respondent: Chew Hua Kok and another
- Counsel for Plaintiffs: Mr Johnson Loo and Mr Gary Low Wee Chong (Drew & Napier LLC)
- Counsel for Defendants: Mr Jimmy Yap (Jimmy Yap & Co)
- Legal Areas: Civil Procedure – Discovery of documents; Electronic Discovery; Cloud computing and document “power”
- Statutes Referenced: Order 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (notably the concept of “power” in the context of discovery)
- Cases Cited: [2009] SGHC 194; [2011] SGHC 223; [2013] SGHCR 1
- Judgment Length: 12 pages, 7,760 words
Summary
Dirak Asia Pte Ltd and another v Chew Hua Kok and another is a Singapore High Court discovery decision addressing how “possession, custody or power” in Order 24 of the Rules of Court should be understood in the context of electronic discovery, particularly where the relevant emails are stored on servers controlled by a third-party employer and accessed by the defendant employees through their work email accounts. The dispute arose out of alleged breaches of fiduciary duties and contractual non-solicitation/non-compete obligations by former employees who allegedly disclosed confidential information and diverted customers to a competitor.
The plaintiffs had already obtained an order for discovery of specified categories of documents. They then sought to extend that order to include discovery of emails located in the defendants’ email accounts with their subsequent employer, a UK company. The defendants resisted on the basis that they did not have possession or custody of the emails because the emails were stored on the employer’s server, and they claimed they lacked “power” to cause the server to be accessed by persons not authorised by the employer.
The Registrar’s decision emphasised a contextual, functional approach to the meaning of “power” for discovery purposes. Rather than treating “power” as limited to legal ownership or direct control of the physical server, the court focused on whether the defendants had the practical ability to access, retrieve, and produce the emails sought. The decision is significant for practitioners because it clarifies that electronic discovery obligations may extend to documents stored in the “cloud” or on third-party servers where the defendant can effectively obtain them through account access, subject to the proper framing of discovery and the court’s oversight of proportionality and fairness.
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. Chew Hua Kok (“Chew”) 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. Soo (“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 disclosures of the plaintiffs’ confidential information to third-party competitors, including Suzhou Euro-Locks, a wholly owned subsidiary of a UK-based company, Euro-Locks & Lowe & Fletcher Ltd. The plaintiffs alleged that Chew and/or Soo facilitated the diversion of orders and the solicitation of customers in breach of fiduciary duties and contractual clauses. After their employment with Dirak Asia ended, Chew joined Suzhou Euro-Locks as general manager in June 2009, and Soo joined Suzhou Euro-Locks in July 2009.
After the employment relationship ended, the plaintiffs alleged that the defendants continued to misuse and disclose confidential information and, in breach of non-solicitation and non-compete clauses, facilitated solicitation of the plaintiffs’ customers. These allegations formed the basis of the plaintiffs’ civil claim for losses arising from the alleged wrongdoing.
On 7 April 2011, the plaintiffs obtained an order for discovery against the defendants for documents relating, among other things, to 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 sales of competing products made using the plaintiffs’ designs.
Subsequently, 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 in the form of emails found in the defendants’ Euro-Locks email accounts. The defendants opposed the application, asserting 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 lacked power to allow the server to be searched by the plaintiffs.
What Were the Key Legal Issues?
The central legal issue was whether the defendants had “possession, custody and power” over the emails sought. The plaintiffs’ application required the court to grapple with the practical realities of electronic communications: where emails are stored on remote servers and accessed through credentials, what does “power” mean for discovery purposes?
More specifically, the court had to consider whether the defendants’ ability to access and retrieve emails from their work email accounts amounted to “power” over those emails, even if the emails were technically stored and maintained by a third-party email service provider (here, the employer’s server infrastructure). The defendants argued that because they were not the owners of the server and could not authorise third-party access to the server, they lacked the requisite power.
In addition, the decision raised a broader conceptual question about electronic discovery in the “cloud”: whether the law should treat the email service provider as the custodian such that the user’s discovery obligations are limited, or whether the user’s practical ability to obtain the content of emails means that the content is within the user’s “power” for Order 24 purposes.
How Did the Court Analyse the Issues?
The Registrar began by framing the issue as deceptively simple but legally complex. In ordinary cases involving physical documents or locally stored electronic files, it is straightforward to identify where the documents are and who has possession or custody. However, the plaintiffs were not seeking printouts or locally saved copies of emails stored on the defendants’ computers, smartphones, or other devices. Instead, they sought discovery of emails “in the email accounts” themselves.
This distinction mattered because it changed the factual answer to the question “where are the emails?” The defendants could truthfully say that the emails were in their email accounts. The next question then became “where are the email accounts?” For web-based or off-site email systems, the emails are stored on remote mail servers and data centres. In such circumstances, the email user may not have technical possession or custody of the email content in the same way as a person who holds a physical document. The court therefore examined how possession and custody operate in electronic systems.
The Registrar explained that, for web-based email accessed through browsers (such as Gmail, Yahoo, or Hotmail), the user typically does not have technical possession and custody of the emails because the emails reside on the provider’s servers. The user’s practical control may be limited to credentials (username and password) that permit access to the provider’s storage. In that sense, the provider is effectively a custodian of the electronically stored information. The court also considered cases where emails are accessed through installed email programs (such as Outlook or Exchange), noting that even then emails may be stored on remote servers, sometimes in a “virtual mailbox” or as a back-up repository depending on the configuration and terms of service.
Applying these principles to the facts, the Registrar noted that the plaintiffs did not assert that the defendants had saved the emails in personal or work computers, smartphones, or other compound documents in the defendants’ possession and custody. Nor were the plaintiffs seeking discovery of such locally saved copies. It was common ground that the emails were stored on the servers of Euro-Locks & Lowe & Fletcher Ltd. The plaintiffs’ argument was therefore not that the defendants possessed the emails themselves as local files, but that the defendants had the practical ability to access the emails in their accounts. The “real question” became whether emails held by the third-party server were in the defendants’ “power”.
On “power”, the Registrar’s analysis reflected the unique challenges of cloud computing. The court recognised that if the plaintiffs were to seek discovery from the third-party cloud provider itself, the provider might not know what documents would adversely affect the producing party’s case, and it would be unlikely to conduct privilege review or make meaningful objections. Cross-border issues could also complicate compliance if the provider were located in another jurisdiction. These practical considerations supported the view that the discovery regime should not be rendered ineffective simply because the documents are stored remotely.
At the same time, the court did not treat “power” as a purely abstract concept. The Registrar emphasised that “power” must be understood contextually. In the cloud setting, a user’s ability to access and retrieve emails through account credentials may translate into a practical ability to obtain the content for production. The defendants’ position—that they lacked power because they did not own the server and could not authorise access to the server by unauthorised persons—was therefore not determinative. The question was whether the defendants could, through their account access, obtain the emails sought and produce them in the litigation.
While the truncated extract does not reproduce the Registrar’s final articulation of the test in full, the reasoning visible in the decision indicates a shift away from formalistic ownership-based notions of control. The court’s approach is consistent with the purpose of discovery: to ensure that relevant documents within a party’s reach are produced, while recognising that electronic systems often separate “technical custody” (server storage) from “functional control” (account access and retrieval). The Registrar’s contextual approach to “power” thus aligns discovery obligations with the realities of how employees interact with email systems in practice.
What Was the Outcome?
The Registrar granted the plaintiffs’ application to extend discovery to include the defendants’ Euro-Locks email accounts, subject to the court’s management of the discovery process. The practical effect was that the defendants could be required to produce emails from their work email accounts even though the emails were stored on their employer’s servers, provided that the defendants had the practical ability to access and retrieve the emails for production.
In doing so, the decision clarified that the absence of server ownership does not automatically defeat discovery. Instead, the court focused on whether the emails were within the defendants’ “power” in the sense relevant to Order 24, thereby enabling effective electronic discovery in disputes involving cloud-stored communications.
Why Does This Case Matter?
Dirak Asia v Chew Hua Kok is an important authority for Singapore practitioners dealing with electronic discovery and cloud-based document storage. It addresses a recurring litigation problem: defendants often argue that because emails are stored on third-party servers, they cannot be said to have “possession, custody or power” over the emails. This case demonstrates that courts will look beyond technical custody and ownership to the functional ability of a party to access and retrieve the relevant electronic content.
For lawyers, the decision is useful both for framing discovery requests and for responding to objections. Plaintiffs should articulate why the defendant has practical access to the relevant emails (for example, through account credentials and the ability to export or download emails). Defendants, conversely, should be prepared to explain concretely what they can and cannot do—such as whether they can retrieve emails, whether access has been revoked, and what steps are realistically available to preserve and produce the documents.
More broadly, the case supports a contextual interpretation of “power” that preserves the effectiveness of discovery in modern workplaces. As email and cloud storage become ubiquitous, discovery disputes increasingly turn on how legal concepts map onto technological architectures. This decision provides a principled approach that helps prevent discovery from becoming illusory simply because documents are stored remotely.
Legislation Referenced
- Order 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) – discovery of documents, including the requirement that documents be in the party’s “possession, custody or power”
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.