THIS ARTICLE HAS BEEN UPDATED: The High Court in [2022] SGHC 151 (link) has upheld the District Court’s decision for Rachel Wong to disclose, in specific discovery, private correspondence diary entries relating to her alleged infidelity to her then-husband, to Olivia Wu as part of ongoing defamation legal proceedings initiated by Rachel against Olivia.

Rachel is a full-time social media influencer with over 42k followers on Instagram. She made the news, not because of her digital content, but rather, due to an ongoing defamation lawsuit against Olivia – a woman with approximately only 2k followers on Instagram. It seems that Olivia has stuck to her guns and is seeking to justify her statements about Rachel’s alleged infidelity.

In December 2019, Rachel married Mr Anders Aplin. The couple decided to have the marriage annulled shortly after in April 2020 and this legal process was completed in or around March 2021.

Sometime around December 2020, Olivia accused Rachel of cheating on and being unfaithful to Anders through “Stories” on her Instagram account titled “Cheaterof2020” (the “Stories”).

In one of these Stories, Olivia went as far as to allege that Rachel had sexual relations with the wedding emcee (a Mr Alan Wan, who she has since commenced a relationship with) on the night of her wedding.

Rachel took issue with these Stories and initiated a defamation action against Olivia, claiming that the Stories were defamatory and damaged her reputation in the eyes of the public. Rachel claims that this affected her livelihood, given that being an influencer is largely dependent on public perception, reputation, optics, and image.

Olivia, in her defence, claims that her Stories are not defamatory because they are true in substance – in other words, that Rachel was indeed unfaithful to Anders. This forms the basis for a defence of justification, which we will touch upon later in the article.

In most defamation cases, there will be a dispute between parties as to the defamatory meaning or sting of the allegedly defamatory words. Here, the parties were not in disagreement that the Stories may be understood to mean that Rachel was unfaithful during her marriage and that this showed that she lacked morals.

In the most recent development of this saga, the District Court (presided over by Deputy Registrar Lewis Tan (“the Registrar”)) made an order requiring Rachel to disclose to the Court, correspondence between her and the two men whom she allegedly had affairs with (a Mr Han and an Alan Wan), as well as her private diary entries relating to Alan (the “Disclosure Order”). The Registrar’s written judgement on this matter may be found in Wong Leng Si Rachel v Olivia Wu Su Han [2022] SGDC 42. The Registrar’s judgement was upheld on Rachel’s first appeal to a District Court Judge sitting in chambers, District Judge Victor Yeo. Rachel, dissatisfied with the outcome, had appealed a second time to the High Court. Justice Choo Han Teck upheld District Judge Victor Yeo’s decision in the High Court. In other words, Rachel lost again and this time has to produce the diary entries, not just say that the diary entries are blank.

In this article, we hope to shed some light on the reasons the Court gave (and perhaps upheld) the Disclosure Order and the process by which documents that are relevant to legal proceedings are obtained – a process known as specific discovery.

We say this with the caveat that there has been a substantive change to the Rules of Court that are applicable to cases commenced after 1 April 2022 (the “ROC 2021”).

Discovery

In litigation, parties rely on various documents to prove their case – these documents are to be disclosed during the discovery process before any party can rely upon them. Parties are obliged to disclose all relevant documents in their possession even if these documents adversely affect one’s case.

Parties are required in every case to voluntarily disclose relevant documents in their possession to each other through a process called General Discovery. However, sometimes a party may not voluntarily hand over documents that are unfavourable to their case. If that happens, the other party can apply to the Court to seek an order for specific discovery – as Olivia has succeeded in doing.

An order for Specific Discovery is a court order, and the breaching of the same may be treated as contempt of court, which is punishable with a fine or imprisonment. Further, the trial judge may draw an adverse inference against the party failing to obey the order. It is therefore not something to be taken lightly.

The Disclosure Order

Rachel opposed the Disclosure Order on the grounds that it was merely a “fishing expedition designed to infringe upon her privacy and confidentiality”. But what is a “fishing expedition” and why did the District Court not accept Rachel’s argument?

A “fishing expedition” is a legal analogy for the where a party makes an application for discovery of documents in the hope that something useful turns up. In other words, Rachel is accusing Olivia of not knowing if the documents are relevant, but merely fishes for additional documents in the off chance that the documents will bolster her case when they turn up. Fishing expeditions are not allowed so that there is a procedural limit to the documents that are ordered to be disclosed in a dispute – to avoid unnecessary cluttering of case documents.

In the often-cited case of Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR 75 at [6], JC Choo Han Teck (as he was then) elegantly explained that: “a “fishing expedition” in the context of discovery refers to the aimless trawling of an unlimited sea.” However, the judge went on to specify that “Where, on the other hand, the party concerned knows a specific and identifiable spot into which he wishes to drop a line (or two), I would not regard that as a “fishing expedition”.

Incidentally, in this case, which is now enshrined in Singaporean case as case number [2022] SGHC 151, Justice Choo Han Teck went on to extend his analogy in a quote that may become legendary, by saying:

it is not a mere fishing expedition if fish has in fact been spotted.

Ultimately though, the paramount consideration in an application for specific discovery is whether, taking all issues into account, the specified document or class of documents could be used at trial by one party or the other – what the judge refers to as the “broader relevancy test”.

In the present case, the District Court held that Olivia’s application was not a fishing expedition because these documents would be relevant in establishing whether the substance or gist of the Stories was true and may adversely affect Rachel’s case or support Olivia’s case for justification.

To succeed in her defence, Olivia will have to prove that the defamatory sting of the Stories is true in substance. Since the sting of the Stories is that Rachel was unfaithful and lacked morals, Olivia would need to prove that Rachel was indeed unfaithful to Anders to succeed in this defence. The diary entries relating to Alan would likely assist in determining the truth or falsity of the alleged infidelity and are therefore relevant – which is why we suspect the District Court made the Disclosure Order and the same order has been upheld on appeal, not once, but twice.

While it might seem invasive to request for the diary entries, the Registrar noted that Olivia had exhibited a copy of Rachel’s diary entry which allegedly showed that she had been intimate and had feelings for Alan while she was still married to Anders. The Registrar examined the exhibited diary entry and concluded that it provided details of Rachel’s then-fledgling feelings for Alan. Having considered this, and the other circumstances, The Registrar saw it fit to exercise his discretion to order for the disclosure of any other diary entries relating to Alan as they would be relevant.

Notably, Rachel swore on affidavit that there were “no other diary entries relating to [Alan]” and that she was not in possession of any correspondence between her and Alan, because of “her habit of consistently deleting old text messages and photographs to free up memory space”. However, the Court seems to have doubted the truthfulness of these statements because they were “self-serving and unsupported by any exhibits showing, for example, empty chat logs between herself and Alan” and ordered for the disclosure of the documents despite Rachel swearing she did not have them.

Privacy and Confidentiality

The “million-dollar” question here though, is whether a person should be forced to give up their private and confidential documents like a diary entry for the sake of justice or in legal terms, for the sake of a fair disposal of the matter.

Contrary to popular belief, privacy and confidentiality concerns are insufficient to prevent the production of confidential documents in Court. The Court is empowered to compel disclosure to a counterparty while sealing the confidential documents from public inspection. In such a case, one’s counterparty would have sight of the documents but not the public.

Even in a case pertaining to highly sensitive commercial information such as trade secrets, where production to a counterparty (usually a competitor) would cause prejudice to the producing party that cannot be undone, the Court has the discretion to order production to a limited number of individuals called a Confidentiality Club. This Confidentiality Club could consist of a party’s lawyers, and third-party experts. Here the counterparty may not be given access to these confidential documents so safeguard the disclosing party’s rights, while balancing against the necessity for full and frank disclosure of litigation.

Even if it is not strictly binding, the Intellectual Property Court Guide (Registrar’s Circular No. 2 of 2013) provides some guidance. It states that where confidential information is disclosed through discovery, parties may address the Court as to whether confidentiality undertakings are necessary before the said information may be disclosed in Intellectual Property cases, but these principles may be cross applied to other types of cases.

Conclusion

In summary, even if the Court decides that Rachel’s correspondence and/or her diary entries are confidential information, it can require that these confidential documents be protected.

The bigger picture here is: Rachel did sue Olivia for defamation and should therefore expect that Olivia would seek to discover documents that help prove her defence of justification.

We hope that you have enjoyed reading about this case and maybe learned a thing or two about the litigation process in Singapore. For the avoidance of doubt, we are not involved in this case and have relied on publicly available information to bring this article to you.

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. That.Legal LLC represents neither party in this dispute and is not privy to any confidential information pertaining to the parties. All facts stated herein are compiled from publicly available sources. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of That.Legal LLC accepts or assumes responsibility, or has any liability, to any person in respect of this article.