Global Yellow Pages Limited v Promedia Directories Pte Ltd and another suit

Lee Seiu Kin J:

[2] These two appeals, viz, Registrar’s Appeal No 421 of 2012 (“RA 421”) in Suit No 913 of 2009 (“Suit 913”) and RA No 422 of 2012 (“RA 422”) in Suit No 914 of 2009 (“Suit 914”), were appeals against the decision of the assistant registrar (“AR”) ordering that searches using particular keywords be conducted on various electronic devices.

[3] After considering the parties’ submissions and oral arguments, I dismissed both appeals except that I made two minor variations to the AR’s orders (see [23] below). I now set out my reasons for doing so.

[4] The plaintiff in both suits, Global Yellow Pages Limited (“GYP”), is a company incorporated in Singapore and listed on the Singapore Exchange. It carries on the business of publishing directories and providing classified directory advertising and associated products and services.

[5] The defendant in Suit 913, Promedia Directories Pte Ltd (“Promedia”), is a company incorporated in Singapore and carries on the business of publishing directories.

[6] The defendant in Suit 914, Streetdirectory Pte Ltd (“Streetdirectory”), is also a company incorporated in Singapore. GYP averred that Streetdirectory carries on the business of publishing directories. Streetdirectory averred that it is in the business of developing location-based software and solutions, including specialised skills in the areas of “geomatics”, wireless communication, global positioning system tracking, vehicle navigation and mobile applications.

[7] GYP’s pleadings in Suit 913 and Suit 914 were largely similar. What I set out in this section should therefore be taken as a reflection of GYP’s pleadings as against both Promedia and Streetdirectory unless otherwise indicated.

[8] GYP publishes a series of directories which contain lists of companies and businesses and their respective contact details (such as names, telephone numbers, addresses, facsimile numbers, branches or subsidiaries, and company registration numbers or licence numbers). These directories consist of (a) printed directories which are published in annual editions (“Printed Directories”), and (b) an electronic directory (“the Online Directory”).

[9] The Online Directory is updated daily and is known as the “Internet Yellow Pages”. A person who wishes to access information on the Online Directory may enter search terms at http://www.yellowpages.com.sg (“the Search Engine”). The Search Engine produces results which are similar to what is found in the Printed Directories, unless the Online Directory has since been updated.

[10] GYP averred that it (and/or its employees) was the author of the following original works, and that GYP was at all material times the owner of the copyright which subsisted in the following works (collectively, “GYP’s Works”):

(a) The 2003/04, 2004/05, 2005/06, 2006/07, 2007/08, 2008/09 and 2009/10 editions of the Printed Directories, which were compilations by reason of the selection and arrangement of their contents, thereby constituting intellectual creations.

(b) The Online Directory, which was a compilation by reason of the selection and arrangement of its contents, thereby constituting an intellectual creation.

(c) Subscriber information, which had been verified, enhanced, arranged and classified by GYP from information provided by Singapore Telecommunications Limited and Starhub Limited, as found in the abovesaid editions of the Printed Directories and the Online Directory.

In respect of its claim against Streetdirectory, GYP also averred that it was the owner of the copyright which subsisted in the 1998/99, 1999/2000, 2000/01, 2001/02, and 2002/03 editions of the Printed Directories. These editions of the Printed Directories were not pleaded in GYP’s claim against Promedia.

[11] GYP averred that from or about 2003, Promedia had infringed the copyright in GYP’s Works or parts thereof by reproducing or authorising its reproduction, without GYP’s licence or consent, in Promedia’s own directories (collectively, “Promedia’s Directories”), namely (a) Promedia’s online directory at http://www.thegreenbook.com (“Promedia’s Website”), (b) the 2003 to 2009 editions of Promedia’s printed directories (known as “The Green Book”), and (c) the 2003 to 2009 editions of The Green Book CD-Rom. GYP made similar allegations against Streetdirectory, except that the alleged reproduction was contained in Streetdirectory’s online directory at http://www.streetdirectory.com (“Streetdirectory’s Website”).

[12] GYP alleged that this reproduction could be seen from:

(a) Substantial similarities between listings in, on the one hand, GYP’s Printed Directories and Online Directory, and, on the other hand, Promedia’s Directories (or Streetdirectory’s Website).

(b) The presence of fictitious subscriber listings (“Seeds”) “planted” by GYP throughout its Printed Directories and Online Directory in Promedia’s Directories (or Streetdirectory’s Website).

The Seeds were fictitious company or individual names with addresses and telephone numbers which did not belong to these fictitious companies or individuals.

[13] Promedia averred that GYP’s Works were not original literary works in which copyright could or did subsist.

[14] Promedia further averred that even if there was copyright in GYP’s Works, it had not infringed such copyright. Promedia alleged that over the past 31 years, it had independently created its own database of subscriber information or data. It went on to note that because telephone directories are fact-based works, there will inevitably be similarity in directories published by different publishers because the facts will be similar, and that such similarity could not amount to copyright infringement.

[15] Promedia averred that the presence of the Seeds in Promedia’s Website and in The Green Book CD-Rom was negligible and minimal and therefore did not amount to substantial copying such as to constitute copyright infringement.

[16] Promedia averred that even if it had infringed GYP’s copyright, it could rely on the defence of fair dealing under s 35 of the Copyright Act (Cap 63, 2006 Rev Ed).

[17] Promedia’s defence also contained various other averments, some of which were as follows: (a) Promedia could rely on a defence of public interest; (b) GYP was guilty of laches, acquiescence and/or delay; and (c) Promedia was an “innocent infringer” because, at the time of the infringement, it was not aware and had no reasonable grounds for suspecting that GYP had copyright in the relevant compilations, data or listings.

[18] Promedia also counterclaimed for loss and damage as a result of GYP’s groundless threats of copyright infringement. GYP’s defence was a denial of Promedia’s allegations in the counterclaim.

[19] A large part of Streetdirectory’s defence consisted of the non-admission of GYP’s pleadings.

[20] In addition, Streetdirectory denied that it had infringed GYP’s alleged copyright by reproducing the whole of GYP’s Works or a substantial part thereof in a material form in Streetdirectory’s Website. Streetdirectory averred that each entry in Streetdirectory’s Website was a collection of factual information related to a business entity, including the name, address, telephone number, fax number, email address and website of that business entity, and that GYP and itself both relied on the same factual information.

[21] On 17 February 2012, GYP applied for discovery against Promedia and Streetdirectory by way of, respectively, summons no 773 of 2012 (“SUM 773”) in Suit 914 and summons no 774 of 2012 (“SUM 774”) in Suit 913. Both applications prayed for, inter alia, the following orders:

(a) That there be discovery of various electronic documents in the possession, custody or power of Promedia or Streetdirectory pursuant to paras 43C(4) and 43C(6) of the Supreme Court Practice Directions in force at that date; and

(b) That such discovery be carried out in accordance with the electronic discovery protocols which were annexed to the applications (“the Protocols”).

[22] What was material for the purpose of the appeals before me was para 1(d) of the Protocols, which contained several keywords which would be used in the conduct of a search of specified devices. The AR granted an order that several keywords be used in the conduct of the said search. Promedia and Streetdirectory both appealed against the AR’s decision by way of, respectively, RA 421 and RA 422. For the purpose of these appeals, the relevant keywords which were ordered by the AR to be used were as follows:

The appeals were in respect of the same keywords, except that Streetdirectory also appealed against the AR’s order in respect of one additional keyword: “[name of each custodian/employee materially involved in creating, authoring and/or compiling the directories]”.

[23] I dismissed both appeals subject to the following variations:

(a) The search for the term “seed” or “seeds” on the relevant custodians was to be limited to the period from 17 September 2010 to 6 November 2012, with liberty to apply if GYP was able to prove that this expression entered into the common vocabulary at an earlier date.

(b) The purported keyword “[name of each custodian/employee materially involved in creating, authoring and/or compiling the directories]” (see [22] above) was to be deleted from the first column of the table pertaining to the keyword search contained in the Protocols. Properly construed, this purported keyword was not a search term but was instead a limitation on the scope of the search to be conducted. This limitation was already contained in the second column of the table pertaining to the keyword search.

I also ordered that costs be in the cause and fixed the quantum of costs and disbursements at $1,000 in each suit.

[25] In Fermin Aldabe v Standard Chartered Bank [2009] SGHC 194, the process of discovery was outlined by Yeong Zee Kin SAR as follows:

[26] What we now know as discovery can be traced back a long way in history. AE Randall (ed), Commentaries on Equity Jurisprudence by Justice Story (Sweet & Maxwell, 1920, 3rd Ed) suggested (at p 628, §1487) that “the probable origin of [proceedings for discovery] in our courts of equity” was to be found in Roman law. Edward Bray, The Principles and Practice of Discovery 1885 (Legal Books, 1985 Reprint) noted (at p 5) that:

[27] By the late eighteenth century, the concept of discovery had become firmly entrenched in the courts of equity. The Supreme Court Practice 1976 Volume 1 (IH Jacob gen ed) (Sweet & Maxwell, 1975) stated (at para 24/1/1):

[28] Paul Matthews & Hodge M Malek QC, Disclosure (Sweet & Maxwell, 2012, 4th Ed) (“Disclosure”) observed (at para 1.11):

[29] Discovery, having its relatively modern origins in the courts of equity, is meant to serve the ends of justice and a fair trial by increasing the likelihood of the court resolving the dispute on the basis of facts which represent or which are reasonably proximate to the truth: see Davies v Eli Lilly & Co and Others [1987] 1 WLR 428 at 431H–432B. If taken beyond its proper bounds, however, the process of discovery may conduce towards injustice. The editors of Disclosure observed (at para 1.03):

[30] The risk of oppression may be heightened if the documents sought consist of electronic documents. In the foreword to Disclosure, Etherton LJ observed extra-judicially that:

[31] In Breezeway Overseas Ltd and another v UBS AG and others [2012] 4 SLR 1035 (“Breezeway”), at [20], I had observed:

Jacob LJ had famously cautioned against a “leave no stone unturned” approach in the search for “perfect justice” in every case as this would actually defeat justice: Nichia Corporation v Argos Ltd [2007] Bus LR 1753; [2007] EWCA Civ 741 (“Nichia”), at [50]–[51].

[32] The reason is that, as some commentators put it, “an evolutionary burst in writing technology” has led to an “explosive growth of information” and “information inflation” (see George L Paul & Jason R Baron, “Information Inflation: Can the Legal System Adapt?” (2007) 13 Richmond Journal of Law & Technology 10 (“Paul & Baron”) at paras 9, 11 and 14). In addition to writing technology contributing to increased authorship, storage technology has exacerbated the problem exponentially by making it easy to generate multiple copies and feeding the human propensity to hoard soft copies indefinitely. I described this problem in Sanae Achar v Sci-Gen Ltd [2011] 3 SLR 967 (“Sanae Achar”) in the following manner:

[33] Consequently, we often do not know what we have and are therefore hard pressed to give. This concern has been articulated by Senior Master Whitaker in Gavin Goodale & Ors v The Ministry of Justice & Ors [2010] EWHC B40 (QB) (“Goodale”) in the following manner:

[36] While technology has created the problem, it also presents us with a means to alleviate or solve the problem, without which the litigation process could come to a grinding halt for all but those with the deepest pockets. In Sanae Achar (cited at [32] above), I had advocated the use of technology as a means of coping with the burgeoning volume of discoverable documents:

[37] Similarly, Joel Greer, “Practical Considerations Regarding Certain Aspects of Electronic Discovery” (2009) 12(2) International Arbitration Law Review 11 (“Greer”) observed as follows (at pp 14–15):

[38] In Singapore, the most common method of retrieving and analysing electronic documents that has come before the courts is the familiar keyword search utilising Boolean operators. Keyword searches are widely available today and are familiar to most lawyers. The reason for this is posited by Paul & Baron as follows:

[39] Before I go on to set out my views on keyword searches, which constituted the subject-matter of the two appeals before me, I will briefly set out the courts’ approach in the use of search technologies. Generally, there are two categories of search technologies: the familiar keyword searches and concept searches, a class of search technology that is gaining increasing prominence. See Paul & Baron at paras 42–43 for a handy overview of differences between keyword and concept search technologies.

[40] Alternatives to search technology like predictive coding – designed to be used iteratively in tandem with human review – may in future find increasing prominence. Search technology cannot be the only tool that lawyers utilise to tame the burgeoning beast. Apart from search technology, modern document review platforms have a fairly standard set of document review and management tools to remove duplicates, present emails in threaded conversations, cluster conceptually similar documents together for review, etc, see Daniel B Garrie & David Harvey, E-discovery in New Zealand: the impact of the new High Court Rules (2012) 31(3) CJQ 305 (“Garrie & Harvey”) at pp 315-316 for a more detailed description of these technical terms.

[42] Today, the most common method of e-discovery in Singapore appears to be keyword searches. As most who have used keyword searches have experienced, not all search results result in retrieving relevant documents. This limitation of keyword searches is succinctly explained in Garrie & Harvey at p 314 as follows:

[43] But that is not to say that keyword searches should not be used or that ocular review is always better. In Breezeway (cited at [31] above), I had made the observation that both keyword searches and ocular review are not without shortcomings:

[44] In my view, the key to unlocking the full potential of keyword searches (bearing in mind the difficulties outlined above) is by way of adopting an iterative process. This will help to mitigate the difficulties and/or inherent limitations in keyword searches. Greer states as follows (at p 16):

[45] Paul & Baron have optimistically observed that the iterative process may result in “virtuous cycles”:

[46] This iterative process has been endorsed by the courts. To take one local example, Yeong Zee Kin SAR stated in Robin Duane Littau v Astrata (Asia Pacific) Pte Ltd [2011] SGHC 61 as follows:

[47] Similarly, Senior Master Whitaker observed as follows in Goodale (cited at [33] above):

[48] I have also made the following observations in Breezeway (cited at [31] above):

[49] I need only end by commenting that the iterative method is encapsulated in and is an integral part of Part V of the Supreme Court Practice Directions (2013 Revised Edition) (“the e-discovery PD”). Paragraph 45 exhorts parties to engage in good faith discussions during general discovery, and in so doing, to discuss “whether preliminary searches and/or data sampling are to be conducted and the giving of discovery in stages according to an agreed schedule”. This is elaborated in the template e-discovery plan at paragraph 1 of Appendix E Part 2 in the following terms:

[50] Having set out the relevant case law and commentary on e-discovery generally and keyword searches in particular, I will now summarise my views on these issues in the hope of providing some degree of guidance to parties and/or their lawyers in the future.

[51] In keyword searches, there will always remain a risk that relevant documents may not be identified regardless of the number and/or type of keywords used. Broadly speaking, relevant documents which are not identified can be termed “false negatives”. However, it must be remembered that even where traditional methods of discovery are utilised (ie, by visual inspection of documents for relevance), there is also a risk of false negatives due to human error. Whether this latter risk is lower or higher than the risk of false negatives in keyword searches will depend considerably upon the type of search technology being used in the keyword searches as well as the particular keywords which are used in the searches.

[52] The converse type of errors in keyword searches can, broadly speaking, be termed as “false positives”. This denotes irrelevant documents which are identified by keyword searches.

[53] Given that any keyword or set of keywords will produce false positives and false negatives, the concept of relevance (as traditionally understood) does not apply directly to the issue of which keywords should be used in searches of the relevant electronic devices. In other words, it is not fruitful to focus on the concept of relevance in relation to keywords. It must be remembered that the use of keyword searches can come in at a stage earlier than the traditional discovery process, eg, the use of keywords by a litigant to identify documents which are then reviewed by their solicitors for the purpose of giving general discovery. What a keyword search does is to identify documents containing the keywords – the search creates a subset of documents from the universal set containing all the documents in the relevant electronic devices. Within this subset there will exist relevant and irrelevant documents, just as there will exist relevant and irrelevant documents outside the subset. The best keyword searches are those that maximise the number of relevant documents and minimise the number of irrelevant documents within the subset. Such searches would be said to have high accuracy, ie, they have a low proportion of false negatives and of false positives to the total number of documents within the universal set. It is this concept of accuracy which is more pertinent in this context than the concept of relevance.

[54] Thus, whenever the question arises as to whether a particular keyword or set of keywords should be used, one of the salient questions is whether it has high accuracy. All other things being equal, the higher the accuracy of the proposed keyword or set of keywords, the more likely it will be that the court will grant an order that those keywords be used. The concept of accuracy, in turn, has two facets. The inclusionary facet of accuracy deals with the correspondence between, on the one hand, the keywords, and, on the other hand, the documents sought and the issues in dispute. Generally speaking, the greater the correspondence between the keywords and the issues in dispute, the more likely it is that the keywords will result in relevant documents being included in the subset (and the lower the proportion of false negatives in the subset to the total number of documents in the universal set). Conversely, the exclusionary facet of accuracy deals with the exclusion of irrelevant documents from the subset. Generally speaking, where the keywords are not common words, it is more likely that irrelevant documents will be excluded from the subset (and the lower the proportion of false positives in the subset to the total number of documents in the universal set).

[55] How should we approach the selection of keywords in order to increase the level of accuracy? In Breezeway Overseas Ltd v UBS AG [2012] SGHC 41 Yeong Zee Kin SAR had recommended the following approach:

[56] The recommended approach increases the level of accuracy but the keywords that ought to be used ultimately turns on the facts and issues of each case. Equally important to the selection of appropriate keywords is the necessity for counsel to be familiar with the capabilities of the search engine that is used in order to increase the level of accuracy of the search results. For example, if the keyword search technology being used is able to utilise Boolean search operators such as “not”, the exclusionary quality of the keyword or set of keywords will accordingly be improved.

[57] The other factor which should also be considered by the courts pertains to the size of the subset which is produced by the relevant search, ie, the number of hits which are produced in proportion to the universal set. If the subset is extremely large (by reference to, inter alia, the value and/or importance of the underlying dispute, and the importance of the documents sought to the issues in the underlying dispute), this will generally count as a factor weighing against an order for discovery by way of those keywords. This is a nod to efficiency and economy in civil procedure. In such circumstances, it would usually be prudent for parties to attempt to reach an agreement to modify the keywords so as to reduce the size of the subset. In this connection, it would be helpful if preliminary searches using the proposed keywords were conducted prior to the negotiations between the parties and/or an application to court for discovery, so that there would be some factual basis for the negotiations and/or application.

[58] Where a dispute arises as to the keywords which are to be used in a search, the court will have to carefully balance these two factors, viz, accuracy and the size of the subset, as well as other proportionality and economy considerations such as the importance of the documents sought through these keywords to the issues in dispute, the value and importance of the dispute, and the relative financial resources of the parties to the discovery application.

[60] The benefit of collaboration has not escaped legislative nor judicial notice. This is neatly summarised in the following passage from Fermin Aldabe v Standard Chartered Bank [2009] SGHC 194:

[61] During the discussions, both parties should bear in mind that the process of keyword searching is best carried out through an iterative process. Thus, what would generally be sensible for the party from whom discovery is sought is to conduct preliminary searches on the material electronic devices to show how many hits are produced by the keywords which he proposed or which the party seeking discovery proposed. These proposed keywords, together with the number of hits produced by the preliminary searches, would assist in further discussions between the parties if further modification of the list of keywords is required. The conduct of preliminary searches would also usually save considerable time, money and effort which might otherwise be spent on arguments in the abstract on whether a particular keyword or set of keywords was over-inclusive or under-inclusive.

[62] In addition, the party from whom discovery is sought should generally bear in mind the fact that e-discovery by way of keyword searches is intended to relieve him, to some extent, of the burden of reviewing all documents in his possession, custody or power for relevance and/or privilege. As I stated in Breezeway (at [33]):

The purpose of e-discovery by way of keyword searches is not to disadvantage the party giving discovery, but rather to put him at an advantage in terms of the cost of complying with his discovery obligations vis-à-vis all documents in his possession, custody or power.

[63] Having said that, however, where disputes about particular keywords or about the entire list of proposed keywords arise, the courts should, in resolving such disputes, endeavour to aid the party seeking discovery by giving more weight to his proposed keywords in deciding which keywords should be included in the order for discovery. This is because if the party from whom discovery is sought complies with the court order for discovery by way of particular keywords, that will discharge his discovery obligations at that stage. In Sanae Achar (cited at [32] above), I stated as follows:

[64] In Breezeway (cited at [31] above), I reiterated this point:

[65] Where the keywords in issue are those which are proposed by the party seeking discovery, it will generally be unnecessary to be concerned about false negatives. In such circumstances, it will generally be reasonable to assume that that party would have carefully considered the risk of false negatives and tailored the keywords which he proposes to minimise this risk. Thus, in general the only concerns will be in relation to the probability of false positives and the likely number of false positives.

[66] Once the keyword search which is agreed by the parties or which is ordered by the court is carried out, the party giving discovery may still conduct a post-search review of the hits to sieve out irrelevant documents. However, this review must at present be done in the traditional manner. In Breezeway (cited at [31] above), I observed as follows:

[67] The party giving discovery may also wish to withhold certain documents on the basis of privilege, or to redact irrelevant confidential information which is contained in discloseable documents. He may do so provided the review is done in the traditional manner. In Breezeway (cited at [31] above), I observed as follows:

[69] Before I explain why I dismissed the appeals on the facts, I pause here to set out some useful observations in Disclosure (at para 7.12) with which I agree:

This serves as a useful reminder that it may sometimes be reasonable for keyword searches to be supplemented or complemented by the traditional review of particular subsets or classes of documents or documents generated by particular persons. An example will be where the keywords are selected unilaterally by one party prior to general discovery, without the benefit of a collaborative discussion with his adversary: the focus here remains on the party providing relevant documents since he is working in a silo. Where keywords are selected by agreement after a collaborative discussion (whether or not a formal electronic discovery plan is drawn up) or ordered by the court pursuant to an application by summons, then the focus shifts from giving discovery of relevant documents to the fulfilment of the discovery obligation by conducting the search and producing its results. Having said that, this dichotomy of approaches may need to be recalibrated as the state of keyword search technology improves as well as the availability, reliability and cost of alternative search technologies.

[70] Having set out the applicable legal principles above, I now explain why I dismissed the appeals subject to the variations mentioned at [23] above.

[71] I was of the opinion that there was little basis for Promedia’s and Streetdirectory’s objection that the keywords proposed by GYP were over-broad in that they would result in a large number of hits per se, given that Promedia and Streetdirectory had not conducted a preliminary search on the relevant electronic devices to ascertain precisely how many hits were produced by the proposed keywords. While the concerns of Promedia and Streetdirectory may turn out to be well-founded, it was also possible that only a reasonable or proportionate number of hits would be produced by the proposed keywords. In addition, the size of the subset which was likely to be produced by the search was only one of the factors which the court had to consider. The other pertinent factor was that of the accuracy of the keywords which were in issue.

[72] I was of the view that searches conducted using the seven keywords which were common to both appeals (see [22] above) would have a reasonable degree of inclusionary accuracy, ie, there would be a reasonably low likelihood of false negatives in the hits produced by the search. While some of the keywords, eg, “copy”, “delete” and “directories”, were words which were likely to have been commonly used in irrelevant contexts particularly when the nature of Promedia’s and Streetdirectory’s businesses is taken into account, I was of the view that the issue of whether the keywords had a low degree of exclusionary accuracy (ie, whether there was a significant risk of too many false positives in the hits produced by the search) was mitigated significantly in the particular circumstances of these appeals. This was because pursuant to the AR’s orders in SUM 773/2012 and SUM 774/2012 (see, for Suit 913, pp 3 and 4 of the draft order annexed to the notice of appeal in RA 421/2012, and, for Suit 914, pp 4 and 5 of the annex to Order of Court No 5977 of 2012), all parties would not review documents which were produced by searches with more than 5,000 hits. No appeal was filed against this part of the AR’s decision. In other words, the maximum number of false positives which would be produced by the keywords and which would be discloseable (subject to further manual review for relevance and/or privilege) would be 5,000 documents.

[73] One of the arguments which Promedia and Streetdirectory raised was that the terms “seed” and “seeds”, used in the sense described in GYP’s pleadings (see [12(b)] above), were unique to GYP. GYP accepted that it had coined the terms “seed” and “seeds” in this context. In other words, the terms “seed” and “seeds” were used in a unique sense by GYP and were not generally used in this sense by persons in this particular industry. This indicated that searches using these keywords would have a low degree of inclusionary accuracy, for the simple reason that Promedia and/or Streetdirectory (or their employees) would generally be unlikely to describe the Seeds as such. Nonetheless, I dismissed the appeals in respect of the terms “seed” and “seeds” because Promedia and Streetdirectory were aware of the use of these terms in this context after GYP filed an affidavit by Freddie Tan Poh Chye dated 17 September 2010 in Suit 914 (“Freddie Tan’s Affidavit”), para 12 of which referred to the Seeds as defined in GYP’s pleadings. Thus, there was a possibility which could not be discounted that Promedia and/or Streetdirectory had used the terms “seed” or “seeds” in their internal correspondence and/or documents after that date. Furthermore, Promedia had in fact removed the Seeds after Freddie Tan’s Affidavit was filed: see para 62 of Teo Chai Tiam’s affidavit dated 27 March 2012. In my view, it would be wrong in principle to exclude these terms from the search given that there was a not insignificant possibility that they may produce relevant documents. On the facts of this case, I was not persuaded that there was sufficient reason to depart from the prima facie position that greater weight should be given to the keywords proposed by the party seeking disclosure (see [63]–[64] above), particularly because the maximum number of hits which were discloseable was 5,000 (see [72] above).

[74] For the reasons above, I dismissed the appeals subject to the variations mentioned at [23] above.