What Production of Documents Against a Company Is
Anyone who has litigated in Singapore before 2022 will remember “discovery” as the stage of a lawsuit where each side handed over a broad sweep of relevant documents, often at great expense and with much dispute over what had to be disclosed. Under the Rules of Court 2021 (the “ROC 2021”), which apply to civil proceedings commenced from 1 April 2022, that process has been renamed and substantially narrowed. It is now called production of documents, and it is governed by Order 11 of the ROC 2021.
For a Singapore company involved in litigation, whether as claimant or defendant, production of documents is the formal mechanism for compelling the other side (or, in some circumstances, a non-party) to hand over specific documents relevant to the dispute. It is also the mechanism by which your own company can be compelled to produce its internal records, correspondence, board minutes, contracts and financial documents to an opposing litigant. Understanding how narrow this regime has deliberately been made, and what documents can and cannot be forced out of a company, is essential before any Singapore company enters into litigation.
Legal Basis
The production of documents regime is set out in Order 11 of the Rules of Court 2021 (Rules of Court 2021, S 914/2021, made under the Supreme Court of Judicature Act 1969). Order 11 comprises 12 rules covering, among other things, the scope of the Court’s powers (rule 1), orders for production (rule 2), production of requested documents (rule 3), the Court’s own-motion power to order production (rule 4), documents that will not be ordered to be produced (rule 5), the continuing duty to produce (rule 6), consequences of non-compliance (rule 7), privileged documents (rule 8), confidential documents (rule 9), use of produced documents in other proceedings (rule 10), production before action or against non-parties (rule 11), and inspection of the original of a document produced (rule 12).
The whole regime is built around what the Singapore courts describe as the five Ideals set out in Order 3, rule 1 of the ROC 2021 — fair access to justice, expeditious proceedings, cost-effective work, efficient use of court resources, and fair and practical results — together with two guiding principles applied specifically to production of documents: a claimant must sue and proceed on the strength of its own case, not the weakness of the defendant’s case, and a party who sues or is sued does not thereby forfeit its right to privacy and confidentiality in its documents and communications.
As a baseline, every party must produce and exchange, without needing to be asked, all documents it will rely on in the proceedings and all known adverse documents, meaning documents that a party actually knows, or ought reasonably to know through reasonable searches, are adverse to its own case. Beyond that baseline, a party may apply to the Court for an order compelling production of a specific document or class of documents that is in another party’s possession or control (a term that is deliberately given a wide meaning, extending to documents held by an agent or under the company’s power even if not physically in its custody).
Order 11, rule 5(3) of the ROC 2021 sets firm limits on what the Court will order to be produced. The Court will not order production of documents that merely lead to a further “train of inquiry” towards other documents (except in a special case), will not order production of a party’s private or internal correspondence unless it is a known adverse document or the case is a special one, and will not order production of privileged documents or documents whose production would be contrary to the public interest.
For documents that a prospective claimant needs before it can even commence proceedings, Order 11, rule 11 of the ROC 2021 preserves a pre-action production regime, allowing an applicant with a reasonable basis for believing it has a viable cause of action to apply to the Court for production of documents (including against a non-party) to fill a critical evidential gap in the intended claim.
Who Can Apply and Who Is Affected
Production of documents can be sought by:
- a claimant or defendant in an existing action, against the opposing party or against a non-party who holds relevant documents;
- a prospective claimant, before commencing proceedings, under the pre-action production regime in Order 11, rule 11, where it has a reasonable basis to believe it has a claim but needs specific documents or information to plug a critical gap; and
- the Court itself, of its own motion, under Order 11, rule 4, which may order any party or non-party to produce a copy of a document in its possession or control at any stage of the proceedings.
A company can be on the receiving end of a production request as a party to the litigation, or as a non-party that happens to hold documents relevant to a dispute between other people, for example a bank, an auditor, a corporate secretarial provider, or a counterparty to a transaction under scrutiny. Directors and officers responsible for a company’s litigation should note that the obligation to search for and produce known adverse documents is proactive; a company cannot simply wait to be asked for a specific document if it knows, or ought reasonably to know, that the document undermines its own case.
Step-by-Step Process
The Singapore courts’ own self-help guide on production of documents sets out this process for litigants in person, though most companies will engage counsel to manage it.
- Pleadings close and baseline production occurs. After the statement of claim and defence (and any reply) have been filed and served, each party must produce and exchange the documents it intends to rely on, together with all known adverse documents, without needing a court order.
- Parties consider whether affidavits of evidence-in-chief should come first. Under the ROC 2021, the Court may direct that affidavits of evidence-in-chief (AEICs) be filed and exchanged before production of documents takes place, so that witnesses commit to their evidence before seeing what the other side has disclosed, and so the scope of any later production dispute can be narrowed. Parties are invited to state their views on this at the case conference stage.
- Parties negotiate a broader scope, if needed. The parties may agree between themselves to produce documents falling within a wider scope than the statutory baseline, and are encouraged to collaborate in good faith on this.
- A party applies for a targeted production order, if necessary. Where a party believes the other side holds a specific document or class of documents that has not been voluntarily produced, it may apply to the Court for an order under Order 11, rule 2 or rule 3, identifying the document or class with reasonable precision and explaining its relevance.
- The application is usually dealt with as part of the Single Application Pending Trial (SAPT). Under Order 9 of the ROC 2021, most interlocutory applications, including production disputes, are consolidated into a single application filed shortly before trial, rather than being litigated piecemeal.
- The Court rules on the application, applying the five Ideals and the two principles, and will not order production of documents caught by Order 11, rule 5(3) (train-of-inquiry documents, non-adverse private correspondence, privileged documents, or documents whose production is contrary to the public interest).
- Production is made, and the duty continues. A party’s obligation to produce documents does not end once the initial exchange is complete; it continues throughout the proceedings, so newly discovered relevant or adverse documents must be produced as they come to light.
- Non-compliance can be enforced. If a party fails to comply with a production order, the Court has power under Order 11, rule 7 to make further orders, which in serious cases of persistent or wilful non-compliance can extend all the way to striking out a claim or defence or founding a committal application.
Documents Required
| Document | Purpose |
|---|---|
| List of documents relied upon | Baseline disclosure of all documents the party intends to use to support its own case |
| List of known adverse documents | Baseline disclosure of documents the party knows, or ought reasonably to know, undermine its own case |
| Application for production order (if needed) | Identifies the specific document or class of documents sought from the other party and the grounds for production |
| Supporting affidavit | Explains why the requested documents are relevant and why they are believed to be in the respondent’s possession or control |
| Privilege or confidentiality objection (if raised) | Sets out the basis on which a party resists production of a specific document under Order 11, rules 8 or 9 |
| Pre-action production application and affidavit (where applicable) | Used before a claim is even filed, to obtain documents needed to plug a critical evidential gap under Order 11, rule 11 |
Timeline and Costs
| Step | Indicative Timeline | Court Filing Fees (claims up to S$1 million) |
|---|---|---|
| Baseline production (documents relied on and known adverse documents) | Shortly after pleadings close, as directed at the case conference | S$50 to file the list of documents |
| Affidavit of evidence-in-chief (if ordered before production) | As directed by the Court, before or after production | S$2 per page, minimum S$50 per affidavit |
| Application for a targeted production order | Usually rolled into the Single Application Pending Trial before setting down for trial | Court fees for the SAPT apply; no separate fee for a standalone production application in most cases |
| Pre-action production application | Before the intended claim is filed | Filing fee for an Originating Application, plus supporting affidavit fees |
Because production of documents under the ROC 2021 has been deliberately narrowed compared to the old discovery regime, the direct court fees are modest; the real cost driver is the legal and paralegal time spent identifying, reviewing and searching for documents that fall within the baseline obligation, and in resisting or pursuing targeted production applications.
What Happens After Production
Once documents have been produced, the requesting party may inspect the original of any produced document under Order 11, rule 12 if there is a genuine question about its authenticity or completeness. Documents obtained through the production process generally may not be used for any purpose outside the proceedings in which they were produced, save with the producing party’s consent or the Court’s permission, under Order 11, rule 10 — an important protection for a company that has been compelled to hand over sensitive commercial records.
Where confidential documents (commercially sensitive material that falls short of legal privilege) are produced, the Court can impose conditions restricting who may see them, such as limiting inspection to external counsel and experts under a confidentiality club arrangement, under Order 11, rule 9. Privileged documents, by contrast, need never be produced at all, though a party withholding documents on this basis will usually need to identify the existence and general nature of the withheld document without revealing its content.
The produced documents, together with the AEICs, then form the evidential foundation for trial. A company that has failed to comply with its production obligations, whether by withholding known adverse documents or ignoring a production order, risks adverse inferences being drawn against it, cost sanctions, or in serious cases having its claim or defence struck out entirely.
Frequently Asked Questions
Is “discovery” still the correct term to use in Singapore?
Not for proceedings governed by the ROC 2021. The term has been formally replaced by “production of documents”, reflecting a narrower, more targeted regime than the old general discovery process under the Rules of Court 2014.
Does my company have to hand over every relevant document it holds?
No. The baseline obligation is limited to documents you intend to rely on and documents you know, or ought reasonably to know, are adverse to your own case. Broader production of other categories of documents generally requires either the other party’s agreement or a specific court order.
Can the other side get our company’s confidential internal emails?
Only in limited circumstances. Private or internal correspondence is protected from production unless it is a known adverse document or the case is a special one justifying broader production. Even where confidential documents must be produced, the Court can restrict who is allowed to see them.
What if we discover a relevant document only after we have already produced our list?
The duty to produce documents is continuing. Newly discovered documents falling within the baseline categories, or covered by an existing production order, must be produced as soon as reasonably practicable, not held back until trial.
Can we get documents from someone who is not a party to our lawsuit?
Yes, in appropriate cases. Order 11, rule 11 allows production to be sought against non-parties, both before and during proceedings, though the Court will scrutinise such applications carefully, particularly where the requesting party is trying to plug a critical evidential gap in a claim it has not yet filed. Where the objective is targeted, narrow disclosure from a non-party to identify a wrongdoer, a Norwich Pharmacal order may be a more appropriate route than a production application.
What happens if our company simply refuses to comply with a production order?
The Court has a range of sanctions available under Order 11, rule 7, and non-compliance can ultimately support an application to strike out the non-complying party’s claim or defence, or in an appropriate case, a committal application for contempt of court.
Need Help With This Matter?
If your company is facing this situation, Raffles Corporate Services can assist with the groundwork, ACRA filings, compliance documentation, and coordinating with experienced Singapore law firms. For matters requiring court proceedings, we work with a panel of experienced Singapore law firms who offer cost-effective and efficient legal service and advice.
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This article is for general information only and does not constitute legal advice. For advice specific to your situation, please consult a qualified Singapore Advocate and Solicitor.
— The Editorial Team, Raffles Corporate Services