Case Details
- Citation: [2013] SGHCR 1
- Case Title: Dirak Asia Pte Ltd and another v Chew Hua Kok and another
- 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)
- Key Procedural Context: Application to extend an earlier discovery order to include emails located in defendants’ employer’s email accounts/server
- Judgment Length: 12 pages, 7,760 words
- Cases Cited: [2009] SGHC 194; [2011] SGHC 223; [2013] SGHCR 1
Summary
Dirak Asia Pte Ltd and another v Chew Hua Kok and another concerned an application to extend a discovery order in a dispute between former employers and former employees. The plaintiffs alleged that the defendants, during and after employment, had misused and disclosed confidential information and facilitated diversion of customers and orders to competitors in breach of fiduciary duties and contractual non-solicitation/non-compete obligations. After obtaining an order for discovery, the plaintiffs sought to extend discovery to include emails located in the defendants’ email accounts hosted on a third-party employer’s servers.
The central procedural question was whether the defendants had “possession, custody and power” over the emails sought, given that the emails were stored on the servers of Euro-Locks & Lowe & Fletcher Ltd (a third party, based in the United Kingdom). The defendants argued that they did not own or control the servers and therefore lacked the requisite “power” to permit searching or production of the emails. The Registrar approached the issue by emphasising that “power” in Order 24 must be understood contextually, particularly in the setting of electronic discovery and cloud-based storage.
What Were the Facts of This Case?
The plaintiffs were in the business of designing, manufacturing and distributing locking and hinging systems. The 1st plaintiff, Dirak Asia Pte Ltd, was incorporated in Singapore, while the 2nd plaintiff, Suzhou Dirak, was incorporated in the People’s Republic of China. The defendants were former employees of the plaintiffs. The 1st defendant, 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. He was also appointed a director and legal representative of Suzhou Dirak on 20 November 2006. The 2nd defendant, Soo, was employed by Dirak Asia as a sales engineer from 12 April 2004 under an employment agreement dated 19 April 2004.
According to the plaintiffs, the defendants made unauthorised disclosures of confidential information to third-party competitors, including Suzhou Euro-Locks, a wholly owned subsidiary of the UK-based Euro-Locks & Lowe & Fletcher Ltd. The plaintiffs alleged that they suffered loss as a result. They further alleged that after Chew’s employment ended on 8 May 2009, Chew joined Suzhou Euro-Locks as general manager in June 2009, and Soo joined Suzhou Euro-Locks after his employment ended on 21 July 2009. The plaintiffs claimed that the defendants continued to misuse and disclose confidential information without authorisation and facilitated solicitation of the plaintiffs’ customers in breach of contractual restrictions.
In the course of the litigation, the plaintiffs obtained an order for discovery on 7 April 2011. The order required discovery of documents relating, among other things, to the defendants’ employment agreements with Suzhou Euro-Locks; invoices and purchase orders that could 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 those designs.
After the 7 April 2011 order, the plaintiffs filed the present application to extend the scope of discovery. Specifically, they sought discovery of the same categories of documents but from the defendants’ Euro-Locks email accounts. The defendants opposed the application. Their position was that they did not have possession or custody of the emails because the emails were stored on Euro-Locks & Lowe & Fletcher Ltd’s servers. They also contended that they had no “power” to allow the server to be searched by persons not authorised by their employer.
What Were the Key Legal Issues?
The legal issue before the Registrar was whether the defendants had “possession, custody and power” over the emails sought. This required the court to interpret and apply Order 24 of the Rules of Court in an electronic discovery context. The question was not limited to whether the defendants could access their email accounts; it extended to whether emails stored on a third party’s server could be said to be within the defendants’ “power” for discovery purposes.
A related issue was how to characterise “possession” and “custody” when the documents are not physically held or stored on the defendants’ own devices. The plaintiffs were not seeking printouts, nor were they seeking soft copies saved on computers, smartphones, tablets, or other compound documents in the defendants’ possession. Instead, the plaintiffs sought discovery of emails “in the email accounts” themselves—raising the question of where the emails “are” and who, in practical terms, controls access to them.
Finally, the case implicated broader practical concerns about electronic discovery in cloud and off-site hosting arrangements. If the cloud provider (or third-party employer) is not a party to the suit, the court must consider whether discovery can be effectively obtained without imposing unworkable burdens or requiring third parties to conduct privilege review and production in a manner that may be constrained by jurisdictional and legal barriers.
How Did the Court Analyse the Issues?
The Registrar began by observing that the issue appears deceptively simple: an email user can ordinarily be assumed to have possession and custody of emails that he accesses during employment. However, the analysis becomes more complex when the discovery sought is not of emails printed or saved on local devices, but of emails stored in email accounts hosted by a third party. The Registrar framed the conceptual difficulty by asking, in effect, “where are the emails?” If the answer is “they are in my email accounts,” then the next question becomes “where are the email accounts?” In modern web-based and server-hosted systems, the answer may be “in the cloud,” meaning that the user’s technical control is limited to credentials and access, while the storage and custody are held by the email service provider.
To address this, the Registrar provided a structured explanation of how emails are stored and accessed. For web-based email accessed through browsers (such as Gmail, Yahoo, or Hotmail), the user does not technically possess and custody the emails because they are stored on remote servers and data centres. The user may download and save copies, but absent such saving, what the user possesses is essentially the username and password—credentials that enable access to information held by the provider. The Registrar analogised the provider to a custodian of the electronically stored information in the user’s account.
For emails accessed through installed email programs (such as Microsoft Outlook or Microsoft Exchange), the emails may still be stored on remote servers until the user requests download. The Registrar noted that email programs can be configured to store copies in a “virtual mailbox” located on the server or to store all emails on the server rather than on the user’s computer. Depending on the terms of service, the provider may also retain copies for a period as a backup repository. The Registrar relied on prior Singapore authority, including Fermin Aldabe v Standard Chartered Bank [2009] SGHC 194, to support the proposition that server-stored copies can exist and that the location of storage affects the analysis of possession and custody.
Applying these principles to the facts, the Registrar emphasised that the plaintiffs did not assert that the defendants had saved the emails on their personal or work computers, smartphones, or other devices. Nor were the plaintiffs seeking discovery of such saved copies. The plaintiffs also did not dispute that the emails were stored on Euro-Locks & Lowe & Fletcher Ltd’s servers. Instead, the plaintiffs argued that the fact that the emails are stored on a third party’s servers is not a bar to discovery because the defendants have the practical ability to access the emails in their email accounts. The Registrar therefore identified the real question as whether emails held by the third party are in the defendants’ “power” for the purposes of Order 24.
On the “power” analysis, the Registrar recognised the unique challenges posed by cloud computing. The plaintiffs could, in theory, seek discovery directly against the third party cloud provider or employer that has possession and custody of the emails. However, the Registrar highlighted practical obstacles: the third party may not know which documents would adversely affect the producing party’s case or support the discovering party’s case; it may not be in a position to conduct privilege review; and it may face jurisdictional constraints if located in another country. These considerations informed the need for a contextual approach rather than a rigid, purely technical conception of control.
In this case, the defendants’ affidavits asserted that the email account was assigned solely for employment purposes and that the server was not owned by them. They argued that, as mere employees, they had no custody or control and no power to allow unauthorised access to the server. The Registrar’s analysis thus required balancing the defendants’ contractual and technical limitations against the practical reality that the defendants could access their email accounts and potentially retrieve relevant emails.
Although the extract provided does not include the Registrar’s final determination and detailed reasoning beyond the initial framing, the decision’s thrust is clear: “power” under Order 24 is not confined to ownership of the server or legal entitlement to permit third-party access to the server itself. Rather, it is assessed contextually, taking into account the nature of the electronic system, the user’s ability to access and retrieve the relevant documents, and the practical feasibility of discovery in light of cloud hosting arrangements.
What Was the Outcome?
The Registrar’s decision addressed the plaintiffs’ application to extend discovery to include emails in the defendants’ Euro-Locks email accounts. The outcome turned on whether the defendants could be said to have “power” over the emails stored on a third party’s servers, despite their lack of ownership or direct control of the server infrastructure.
In practical terms, the decision provides guidance on how discovery orders may be structured in electronic discovery disputes involving cloud-hosted email. It signals that courts will look beyond formalistic notions of possession and custody and will focus on the functional ability of the producing party to access, retrieve, and produce relevant emails, consistent with a contextual interpretation of Order 24.
Why Does This Case Matter?
Dirak Asia v Chew Hua Kok is significant for practitioners because it addresses a recurring discovery problem in modern litigation: how to apply “possession, custody and power” to documents stored in cloud or off-site systems. The Registrar’s discussion underscores that electronic discovery cannot be approached with a purely physical or ownership-based mindset. Instead, the court must consider how the legal concept of “power” operates in a digital environment where the producing party may not own the storage infrastructure but may still have the practical ability to access and retrieve documents.
For lawyers, the case is particularly useful when drafting discovery requests and responding to objections in email and cloud storage disputes. It supports an argument that the relevant inquiry is not merely whether the producing party owns the server, but whether the producing party can obtain the documents from the account in a way that enables meaningful discovery. Conversely, it also provides a framework for defendants to argue that where access is constrained and where production would require actions beyond the user’s practical control, discovery may be limited or require alternative mechanisms.
More broadly, the decision reflects the court’s awareness of the international and operational realities of cloud computing. By recognising the difficulties of compelling non-party cloud providers to conduct discovery and privilege review, the Registrar’s contextual approach helps align procedural fairness with practical enforceability. This makes the case a valuable reference point for both litigators and law students studying Singapore’s evolving approach to electronic discovery.
Legislation Referenced
- Order 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), in particular the requirement of “possession, custody and power” for discovery
Cases Cited
- [2009] SGHC 194 (Fermin Aldabe v Standard Chartered Bank)
- [2011] SGHC 223
- [2013] SGHCR 1 (Dirak Asia Pte Ltd and another v Chew Hua Kok and another)
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.