Dirak Asia v Chew Hua Kok: Electronic Discovery, Cloud Computing & Power Over Documents
In Dirak Asia Pte Ltd and another v Chew Hua Kok and another, the Singapore High Court addressed an application for the discovery of emails in a dispute between Dirak Asia Pte Ltd and Suzhou Dirak (the plaintiffs) and their ex-employees Chew Hua Kok and Soo (the defendants) over alleged breaches of fiduciary duties and contractual clauses. The plaintiffs sought to extend a prior discovery order to include emails found in the defendants’ Euro-Locks email accounts. The court allowed the application, finding that the defendants had sufficient power over the emails in their email accounts with Euro-Locks & Lowe & Fletcher Ltd.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Application allowed with costs.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court case concerning discovery of emails in cloud storage. The court examined the extent an email user has power over emails.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Dirak Asia Pte Ltd | Plaintiff | Corporation | Application Allowed | Won | Johnson Loo, Gary Low Wee Chong |
| Suzhou Dirak | Plaintiff | Corporation | Application Allowed | Won | Johnson Loo, Gary Low Wee Chong |
| Chew Hua Kok | Defendant | Individual | Application Granted | Lost | Jimmy Yap |
| Soo | Defendant | Individual | Application Granted | Lost | Jimmy Yap |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Shaun Leong Li Shiong | Assistant Registrar | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Johnson Loo | Drew & Napier LLC |
| Gary Low Wee Chong | Drew & Napier LLC |
| Jimmy Yap | Jimmy Yap & Co |
4. Facts
- Dirak Asia and Suzhou Dirak are in the business of designing, manufacturing and distributing locking and hinging systems.
- Chew was employed by Dirak Asia as its regional sales and operations manager.
- Soo was employed by Dirak Asia as a sales engineer.
- Plaintiffs allege defendants made unauthorised disclosure of confidential information to third-party competitors.
- Plaintiffs allege Soo accepted orders on behalf of Suzhou Euro-Locks from plaintiffs’ customers while employed by Dirak Asia.
- Chew was employed by Suzhou Euro-Locks as its general manager after leaving Dirak Asia.
- Soo joined Suzhou Euro-Locks after leaving Dirak Asia.
- Plaintiffs sought discovery of emails in the defendants’ Euro-Locks email accounts.
5. Formal Citations
- Dirak Asia Pte Ltd and another v Chew Hua Kok and another, Suit No 109 of 2010 (Summons No 4323 of 2012), [2013] SGHCR 1
6. Timeline
| Date | Event |
|---|---|
| Soo employed by Dirak Asia as a sales engineer. | |
| Soo's employment agreement with Dirak Asia signed. | |
| Chew's employment agreement with Dirak Asia dated. | |
| Chew employed by Dirak Asia as its regional sales and operations manager. | |
| Chew appointed a director and legal representative of Suzhou Dirak. | |
| Chew's employment with Dirak Asia ended. | |
| Chew employed by Suzhou Euro-Locks as its general manager. | |
| Soo's employment with Dirak Asia ended. | |
| Plaintiffs obtained an order for discovery against the defendants. | |
| Chew's affidavit dated. | |
| Soo's affidavit dated. | |
| Counsel for the defendants' written submissions. | |
| Plaintiffs' written submissions dated. | |
| Decision Date. |
7. Legal Issues
- Discovery of Electronic Documents
- Outcome: The court found that the defendants had power over the emails in their email accounts with Euro-Locks & Lowe & Fletcher Ltd.
- Category: Procedural
- Sub-Issues:
- Possession
- Custody
- Power
- Control
- Related Cases:
- [2009] SGHC 194
- [1980] 1 WLR 627
- [1980] 1 QB 358
- [1985] BCLC 434
- [2012] EWCA Civ 11
- [2008] EWHC 56
- 244 F.R.D. 179 (S.D. N.Y. 2007)
- 632 F. Supp. 2d 494, 515 (D. Md. 2009)
- 252 F.R.D. 346, 353 (E.D.Mich. 2008)
- 245 F.R.D. 513, 518 (D. Kan. 2007)
- 380 F. 3d 142, 160 (3d Cir. 2004)
- 11 F.R.D. 44, 46 (S.D.N.Y. 1951)
- 228 F.R.D. 426, 460 (W.D.N.Y. 2005)
- 11 F3d 1420, 1427 (7th Cir 1993)
- [1978] Fam 181
- 245 F.R.D. 474, 477 (D. Colo. 2007)
8. Remedies Sought
- Discovery of Documents
9. Cause of Actions
- Breach of Fiduciary Duties
- Breach of Contract
10. Practice Areas
- Commercial Litigation
- E-Discovery
11. Industries
- Manufacturing
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Fermin Aldabe v. Standard Chartered Bank | High Court | Yes | [2009] SGHC 194 | Singapore | Cited to illustrate how emails are stored and accessed using email programs. |
| Lonrho Ltd v. Shell Petroleum | House of Lords | Yes | [1980] 1 WLR 627 | England and Wales | Cited for the definition of 'power' in the context of discovery of documents. |
| Lonrho Ltd v. Shell Petroleum | English Court of Appeal | Yes | [1980] 1 QB 358 | England and Wales | Cited to show the English Court of Appeal's understanding of 'power' in the realm of 'control'. |
| Re Tecnion Investments Ltd | English Court of Appeal | Yes | [1985] BCLC 434 | England and Wales | Cited for the proposition that discovery could be ordered if entities were under the 'unfettered control' of majority shareholders. |
| North Shore Ventures Limited v. Anstead Holdings Inc. | English Court of Appeal | Yes | [2012] EWCA Civ 11 | England and Wales | Cited to illustrate that a rigid adherence to the definition of 'power' should give way to a more flexible contextual analysis. |
| Schlumberger Holdings Ltd v. Electromagnetic Geoservices AS | High Court | Yes | [2008] EWHC 56 | England and Wales | Cited for adopting a contextual approach in finding that the producing party has control over the documents. |
| re NTL Securities Litigation | United States District Court for the Southern District of New York | Yes | 244 F.R.D. 179 (S.D. N.Y. 2007) | United States | Cited for the proposition that 'control' does not require legal ownership or physical possession, but rather the right, authority, or practical ability to obtain documents. |
| Goodman v. Praxiar Services Inc | United States District Court for the District of Maryland | Yes | 632 F. Supp. 2d 494, 515 (D. Md. 2009) | United States | Cited for failing to show the existence of facts that would demonstrate a relationship comparable to the cooperative, file-sharing relationship between NTL Europe and New NTL. |
| Flagg v. City of Detroit | United States District Court for the Eastern District of Michigan | Yes | 252 F.R.D. 346, 353 (E.D.Mich. 2008) | United States | Cited for the court's examination of the relationship between the City and the third party vendor to determine 'control' over electronic information. |
| Ice Corp v. Hamilton Sundstrand Corp | United States District Court for the District of Kansas | Yes | 245 F.R.D. 513, 518 (D. Kan. 2007) | United States | Cited for the multiple factors considered and balanced to determine 'control'. |
| Mercy Catholic Medical Center v. Thompson | United States Court of Appeals for the Third Circuit | Yes | 380 F. 3d 142, 160 (3d Cir. 2004) | United States | Cited for examining the factual relationship between the producing party and the third party in possession of the documents. |
| Bifferato v. States Marine Corp. | United States District Court for the Southern District of New York | Yes | 11 F.R.D. 44, 46 (S.D.N.Y. 1951) | United States | Cited for examining the factual relationship between the producing party and the third party in possession of the documents. |
| Am. Rock Salt Co. v. Norfolk S. Corp. | United States District Court for the Western District of New York | Yes | 228 F.R.D. 426, 460 (W.D.N.Y. 2005) | United States | Cited for determining from the documents that were already disclosed by the producing party, as well as the information contained in the producing party’s website, that the producing party has, as a matter of fact, routinely accessed documents held in the possession of third parties. |
| Chaveriat v. Williams Pipe Line Co | United States Court of Appeals for the Seventh Circuit | Yes | 11 F3d 1420, 1427 (7th Cir 1993) | United States | Cited for the proposition that the fact that a party could obtain a document if it tried hard enough does not mean that the document is in its possession, custody or control. |
| B v B (Matrimonial Proceedings: Discovery) | N/A | Yes | [1978] Fam 181 | N/A | Cited as an example of a situation where a company is so utterly subservient or subordinated to the will and the wishes of some other person that compliance with that other person's demands can be regarded as assured. |
| Tomlinson v. El Paso Corp | N/A | Yes | 245 F.R.D. 474, 477 (D. Colo. 2007) | United States | Cited to highlight the difficulties when a third party cloud provider having custody of the documents refused to produce the material documents. |
13. Applicable Rules
| Rule Name |
|---|
| Order 24 of the Rules of Court |
| Civil Procedure Rule 31.8 |
| Order 24, rule 2(1) of the English Rules of the Supreme Court |
| Rule 34(a) of the Federal Rules of the Civil Procedure |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Rules of Court (Cap 322, R 5, 2006 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Electronic discovery
- Cloud computing
- Possession
- Custody
- Power
- Control
- Email accounts
- Euro-Locks
- Third-party cloud provider
15.2 Keywords
- Discovery
- Electronic Discovery
- Cloud Computing
- Singapore
- Emails
- Fiduciary Duty
- Breach of Contract
16. Subjects
- Civil Procedure
- Discovery
- Electronic Discovery
- Cloud Computing
17. Areas of Law
- Civil Procedure
- Electronic Discovery
- Cloud Computing
- Discovery