Litigation – Disclosure of Electronic Data in Court Proceedings

Anyone who has been involved with litigation will understand the hassles of the process of discovery. Discovery is a continuing obligation of the parties to litigation that takes place after pleadings (e.g. Statement of Claim, Defence, Reply) have been closed. Parties must disclose documents to the other parties to the litigation, whether or not such documents are supportive of or damaging to their case.

The obligation, however, does not extend to all documents which are related to the parties in the litigation. Parties to the litigation are required only to disclose documents which are in their "possession, custody or power" and which are not "privileged" (ie documents which do not need to be produced on the ground of some special interest recognized by the law). Further, the parties only need to disclose documents that are "relevant". Whether or not a document is "relevant" depends on the issues raised in the pleadings. In the past, the courts in Hong Kong