Answer ... There are four main methods of seeking discovery of evidence in Singapore.
First, prior to the commencement of an action through an Originating Summons (OS) or Originating Application (OA), a party may seek pre-action discovery of documents and information for three purposes:
- First, to identify possible parties to any proceedings;
- Second, to enable the party to trace the party’s property; and
- Third, for any other lawful purpose in the interests of justice.
Second, during the Case Conference the Court may order that all parties must, within 14 days of an order for general disclosure (see Order 11 Rule 2 of the Rules of Court 2021), exchange a list and copy of all documents in their possession which fall into the following categories:
- All documents that the party will be relying on; and
- All known adverse documents.
As a general rule, confidentiality in itself is not a basis for withholding or objecting to the production of documents (see Order 11 Rule 9 of the Rules of Court 2021). Nevertheless, documents subject to privilege or whose production would be contrary to the public interest are generally shielded from production unless the party entitled to privilege consents, or the Court approves (see Order 11 Rule 5(3), 8(1) of the Rules of Court 2021).
A party in receipt of a discovery order is under a continuing duty to produce documents within 14 days after that document comes into the party’s possession or control at any time during the course of proceedings (see Order 11 Rule 6 of the Rules of Court 2021).
Third, parties may seek specific discovery of documents in the Single Application Pending Trial (SAPT) (see Order 9 Rule 9(4)(k) of the Rules of Court 2021), which is a pre-trial application to consider all issues that are necessary for a case to proceed. Under Order 11 Rule 3 of the Rules of Court 2021, the Court may order any party to produce a specific document or class of documents in that party’s possession or control, if the requesting party:
- Properly identifies the requested documents, and
- Shows that the requested documents are material to the issues in the case;
- Nevertheless, the Court will not order the production of documents that merely leads to a train of inquiry to other documents (as per Order 11 Rule 5(1) of the Rules of Court 2021).
Further, parties may make an application in the SAPT to compel a non-party to produce documents (see Order 11 Rule 11 of the Rules of Court 2021).
Finally, the Court retains the general power to order the production of documents from any party or non-party at any time (see Order 11 Rule 4 of the Rules of Court 2021).
If a recipient served with the production order fails to comply, that party or non-party may be liable for contempt of court under Section 4(1), (8) of the Administration of Justice (Protection) Act 2016. Additionally, Order 11 Rule 7 of the Rules of Court 2021 where a party to proceedings fails to comply with a production order, the Court may:
- Order that the action be dismissed or that the defence be struck out and judgment be entered accordingly;
- Draw an adverse inference or make any such order as the Court deems fit;
- Punish that party for contempt of court if the order has been served on that party’s solicitor, but it is open to that party to show that that party was not notified or did not know about the order; or
- Order that that party may not rely on any document that is within the scope of the order unless the Court approves.