THE PRINCIPLES OF NECESSITY AND CONFIDENTIALITY IN THIRD-PARTY DISCOVERY UNDER MALAYSIAN CIVIL PROCEDURE

Introduction

In Malaysian civil action, discovery under Order 24 of the Rules of Court 2012 (“ROC 2012”) is a crucial component that enables parties to collect pertinent documents. Parties are not, however, inherently entitled to it. The courts have stated unequivocally that discovery must be regulated in order to maintain justice and prevent abuse of process.¹ Over time, Malaysian courts have developed a framework to determine when to allow discovery. This article examines the principal rules governing discovery, with a focus on the necessity requirement and the issue of confidentiality. The application of these principles in third-party discovery scenarios is also addressed. On the whole, it is clear that the courts seek to strike a balance between permitting access to pertinent records and preventing needless or excessive disclosure.

The Judicial Test for Discovery

The courts apply a four-part test, developed through case law, to determine whether to grant discovery. This approach ensures that discovery is only permitted when it is warranted by established legal principles.

First, the requested documents must be precisely identified and relevant to the issues in dispute. This requirement is crucial because it prevents parties from making requests that are too general or ambiguous — what the courts have characterised as a “fishing expedition” to uncover potential evidence. The courts generally require that discovery be tightly linked to the pleadings, ensuring that only documents genuinely relevant to the case are produced. In Yekambaran Marimuthu v. Malavawata Steel Bhd, the court emphasised the requirements of specificity and relevance, stating that discovery must be limited to documents pertaining to the concerns raised by the parties.²

Second, the applicant must demonstrate that the opposing party has possession, custody, or control over the documents in question. This condition ensures that discovery orders are only granted where the party from whom discovery is sought genuinely holds control over the documents. It is insufficient for an applicant to merely hypothesise that such documents exist; there must be some factual basis for the assertion that the documents are in the opposing party’s possession. In Newaction Marketing Sdn Bhd v. Lee Lun Teong, the court reiterated this principle, emphasising that it is the applicant’s responsibility to establish the existence and control of the documents sought.³

Third, the applicant must demonstrate the necessity of the requested discovery. This is an essential prerequisite, as the courts will not allow discovery merely because the documents might be convenient or helpful. Rather, the applicant must show that the documents are genuinely necessary for the matter to be determined fairly. In Nguang Chan v. Hai-O Enterprise Bhd, it was underlined that necessity must be adequately established and cannot rest on conjecture.⁴ This illustrates the courts’ determination to ensure that discovery is only utilised when it genuinely assists in resolving the dispute.

Finally, the court must be satisfied that allowing discovery will help resolve the case fairly or reduce costs. This reflects the overarching goal of ensuring efficiency in litigation. Even where the preceding criteria are met, the court retains the discretion to refuse discovery if it considers the request to be superfluous, excessive, or premature.⁵ This final element underscores the court’s responsibility to regulate the scope of discovery and prevent it from being used as an instrument of oppression or delay.

Possession, Custody and Power

A further crucial question in the discovery process concerns whether the documents sought are in the “possession, custody, or power” of the relevant party. This condition is essential in limiting the scope of discovery, as it ensures that parties are only required to produce documents within their actual control, rather than those that are beyond their reach.

“Possession” refers to documents that a party physically holds, whether in digital or hard-copy form.⁶ Documents kept on personal devices, corporate systems, or other readily accessible storage platforms fall within this category.⁷ “Custody,” in contrast, extends beyond mere physical possession to include documents held by another person on the party’s behalf — such as employees, agents, or legal representatives.⁸ By virtue of their relationship with the person who physically holds the documents, the party in question is deemed to have control over them even if they are not in direct physical possession.⁹

The concept of “power” is more complex. It encompasses a legal right to obtain documents from another individual.¹⁰ Critically, the party must possess an enforceable legal right to demand production of the documents — a mere informal request does not suffice.¹¹ In Allimi Udin v. TWA (Malaysia) Sdn Bhd, the court explained that “power” refers to a circumstance in which a party has the legal authority to compel another party to produce the documents sought.¹² This interpretation is consistent with the English decision in Lonrho Ltd v. Shell Petroleum Ltd, which drew a distinction between a legal right to seek documents and mere practical access.¹³ This distinction is important because it prevents the scope of discovery from becoming unduly broad, particularly where third parties are involved.¹⁴

Taken together, the requirement of possession, custody, or power ensures that discovery remains reasonable and equitable by confining obligations to documents that the relevant party is genuinely able to produce.

Necessity as the Principal Requirement

The necessity requirement is the cornerstone of the discovery process. It serves as a governing factor to ensure proportionality and fairness in litigation.¹⁵ Under Order 24 Rule 8 of the ROC 2012, a court must refuse a discovery request if it considers that discovery is not required for either cost-saving or a fair resolution of the cause or matter.¹⁶ This rule ensures that the opposing party will not be harassed, that proceedings will not be delayed, and that parties will not be financially exhausted.¹⁷ Malaysian courts construe the necessity threshold narrowly, as demonstrated in Am Finance Bhd v. Teras Cemerland Sdn Bhd, where it was held that production must actually contribute to the fair disposition of the matter rather than merely be useful.¹⁸ The Court of Appeal confirmed in Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Bhd & Ors that the operative test is necessity, not mere utility.¹⁹ Where a plaintiff is simply “fishing for evidence” to support their case, the court will refuse the application, as permitting such discovery would be unduly oppressive.

The courts have consistently held that necessity extends beyond practicality or convenience. In Newaction Marketing Sdn Bhd v. Lee Lun Teong, the court held that it is insufficient for an applicant to demonstrate that the documents might assist in preparing their case.²⁰ The applicant must instead show that the documents are genuinely necessary to resolve the issues in dispute — a relatively high threshold that prevents discovery from being too readily granted. A similar approach was taken in Protasco Bhd v. Tey Por Yee, where the court emphasised that discovery should only be ordered where it is truly necessary for the case to be decided fairly.²¹ This reflects the courts’ broader goal of minimising litigation costs and avoiding unnecessary delays.

The burden of establishing necessity rests on the party requesting production.²² This is reinforced by the requirement that discovery should only be permitted in respect of documents that are, or have been, in the “possession, custody or power” of the person against whom the order is sought. The classic authority for determining relevance is the “train of inquiry” test from Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co.²³ Under this test, a document is relevant if it contains information that either directly or indirectly assists a party in advancing their own case or undermining their opponent’s. Applications that fail to satisfy this standard — for instance, those that are premature or inadequately particularised — will be refused.

A clear illustration of this principle is the courts’ consistent rejection of applications that appear to be “fishing expeditions.” Such applications were condemned as an abuse of the discovery process in All Kurma Sdn Bhd v. Teo Heng Tatt, particularly where the applicant is unable to precisely identify the materials sought.²⁴ By maintaining a stringent approach to necessity, the courts ensure that discovery is employed appropriately and not as a vehicle for harassment or speculation.

Third-Party Discovery

Discovery against non-parties is governed by Order 24 Rule 7A of the ROC 2012, which draws a distinction between applications made before and after the commencement of proceedings.²⁵ An application for discovery against a non-party filed prior to the commencement of proceedings must be made by originating summons, while an application made after proceedings have commenced is brought by notice of application. Both approaches require a supporting affidavit that identifies the documents sought and demonstrates their relevance to an issue in the claim or to the identification of potential parties.

A key aspect of third-party discovery is the ability to identify wrongdoers — a principle known as the Norwich Pharmacal doctrine.²⁶ Under this principle, a plaintiff who is uncertain of the defendants’ identities may seek discovery from a third party who is likely to hold that information. For example, in the English case of Golden Eye (International) Limited v. Telefonica UK Limited, the court permitted discovery against an internet service provider (ISP) to obtain the names and addresses of customers alleged to have committed copyright infringement.

The courts are careful to ensure that non-parties are not unduly burdened by litigation in which they have no direct interest. Where appropriate, the court may make a discovery order conditional on the applicant providing security for the non-party’s costs.²⁷ Importantly, the non-party is entitled to reimbursement of the reasonable costs of compliance, unless the court orders otherwise.

Third-party discovery under Order 24 Rule 7A is permitted only in defined circumstances. In Billion Prima Sdn Bhd v. Nutech Co Ltd, the court outlined several key considerations, including the need to establish necessity, relevance, and that the documents are within the third party’s possession, custody, or control.²⁸ While these conditions mirror those applicable in ordinary discovery, they are applied more stringently in the third-party context.

The courts have further underlined that third-party discovery should be sought only as a measure of last resort. In UMCI Ltd. v. Tokio Marine & Fire Insurance Co., the court held that parties should first attempt to obtain the documents from those directly involved in the proceedings before resorting to third-party applications.²⁹ This is a pragmatic approach that avoids imposing unnecessary obligations on persons who are not parties to the dispute.

The courts do acknowledge that third-party discovery can be valuable in certain circumstances — for instance, where it clarifies crucial issues or facilitates settlement. This recognition does not, however, diminish the requirement for caution. The more stringent approach to third-party discovery ultimately serves to protect the legitimate interests of non-parties.

Confidentiality and Trade Secrets

Confidentiality is a significant concern in the discovery process, as parties frequently seek documents containing proprietary or sensitive information, the disclosure of which could have serious consequences. Under conventional legal standards, discoverable documents are generally understood to include those available for production and inspection that do not attract privilege or other recognised protection.³⁰ Confidentiality claims do not, however, operate as an absolute bar to discovery; in particular, personal data may be required to be disclosed where a court order is made or where disclosure is necessary for legal proceedings.

The courts do not, as a rule, refuse discovery on grounds of confidentiality alone. Rather, they adopt a balanced approach, weighing the need for disclosure against the requirement to protect sensitive information. In OAG Engineering Sdn Bhd v. Ng Hoe Keong, the court established a balancing test that takes into account the interests of both parties, including the significance of the documents to the case and the potential harm that may result from disclosure.³¹

The courts have also made clear that not all information qualifies for confidential treatment. In Repco (Malaysia) Sdn Bhd v. Tan Toh Fatt, it was held that information already widely known within an industry, or accessible to the public, cannot be protected as a trade secret.³² This principle prevents parties from resisting legitimate disclosure by invoking confidentiality claims in bad faith.

Where there are genuine confidentiality concerns, the courts may take protective measures. These include limiting access to the documents, redacting sensitive material, or requiring the receiving party to provide undertakings that the information will only be used for the purposes of the proceedings. This approach enables the courts to balance the protection of legitimate commercial interests against the requirements of transparency and fair litigation.

In commercial contexts, ISPs and other businesses may challenge discovery orders on the grounds that production would compromise the security and privacy of their customers.³³ The courts address such concerns by applying a rigorous necessity test, focusing on whether the documents are required for the just resolution of the case rather than on whether disclosure would be convenient for the requesting party. For comparative reference, the UK Civil Procedure Rules (CPR) provide that a party to whom documents have been disclosed may only use them for the purposes of the proceedings in which disclosure was made, thereby protecting legitimate commercial interests.³⁴

Burden of Proof

In discovery applications, the burden of proof rests with the party seeking production, who must satisfy the court that the order is required to save costs or to enable the fair resolution of the matter. This requirement ensures that the opposing party is not harassed or financially exhausted through the discovery process. The applicant must establish three elements: that there is a “document,” that it is “relevant,” and that it is in the “possession, custody or power” of the person against whom the order is sought.

Applications that appear to be “fishing expeditions” — that is, attempts to locate documents of uncertain relevance in order to prop up a case — are routinely refused by the courts. Where the applicant fails to demonstrate relevance or necessity, or where the application is considered premature or ill-conceived, the court will exercise its discretion to refuse the request. Establishing relevance requires satisfying the “train of inquiry” standard, which demands a demonstration that the material will advance the applicant’s case or undermine their opponent’s. By upholding this stringent standard, the court ensures that discovery remains a tool for the genuine investigation and resolution of issues, rather than a speculative exercise.

Applications supported by insufficient or unsubstantiated evidence have consistently been refused. In Repco (Malaysia) Sdn Bhd v. Tan Toh Fatt, the claim failed because there was inadequate evidence to support the assertion that confidential information had been misused.³⁵ In the same vein, the court in All Kurma Sdn Bhd v. Teo Heng Tatt declined to permit discovery on the basis of unsubstantiated allegations.³⁶

Conclusion

The law of discovery under Order 24 of the ROC 2012 exemplifies the Malaysian courts’ commitment to balancing efficiency and justice in civil litigation. Discovery is undoubtedly important in assisting parties to prepare their cases, but it is not a right to be exercised carelessly or without good reason. The necessity requirement operates as a crucial control mechanism, ensuring that only documents genuinely required for the fair resolution of the dispute are produced. The courts’ treatment of confidentiality reflects a careful balancing of competing interests, while the more stringent approach to third-party discovery shields non-parties from undue burden. Ultimately, discovery remains an indispensable tool in civil litigation — but one that the courts have made clear must be exercised judiciously, so as to assist rather than impede the administration of justice.

Bibliography

Baker McKenzie. (2025). Global privilege and professional secrecy guide (5th ed.). https://www.bakermckenzie.com/-/media/files/insight/guides/2025/global-privilege-and-professional-secrecy-guide-5th-edition.pdf

Hamid, N. A. A., & Abdullah, N. (2012). Discovery of documents and confidentiality in civil proceedings. Australian Journal of Basic and Applied Sciences, 6(11), 185–190.

Ministry of Justice. (n.d.). Civil procedure rules: Part 31 – Disclosure and inspection of documents. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

Mohamed, D. (2012). Discovery and inspection of documents under the Malaysian and English civil procedure. American-Eurasian Journal of Agricultural & Environmental Sciences, 12, 185–190.

Mohamed, D., & Abas, A. (2011). The process of gathering evidence in civil cases: Its application in civil and Shariah courts. Malayan Law Journal, 3, cxxii–clii. https://irep.iium.edu.my/13514/1/The_Process_of_Gathering_Evidence_in_Civil_Cases_-_Duryana_Mohamed.pdf

P.E. Lim. (2025). Applications for discovery against parties. P.E. Lim Litigation Research. https://pelim.my/applications-for-discovery-against-parties/

Su, T. J., & Teo, K. G. (2012). The rules of court 2012: Post-modern litigation. Malayan Law Journal, 4.

Cases

All Kurma Sdn Bhd v. Teo Heng Tatt [2024] MLJU 1811.

Allimi Udin v. TWA (Malaysia) Sdn Bhd [2025] CLJU 3329.

Am Finance Bhd v. Teras Cemerland Sdn Bhd [2008] MarsdenLR 3714; [2008] MarsdenLR 1.

Billion Prima Sdn Bhd v. Nutech Co Ltd [2017] 1 CLJ 179.

Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. [1882] 11 QBD 55.

Lonrho Ltd v. Shell Petroleum Ltd [1982] AC 173.

Newaction Marketing Sdn Bhd v. Lee Lun Teong [2026] CLJU 181.

Nguang Chan v. Hai-O Enterprise Bhd [2009] 5 MLJ 40.

OAG Engineering Sdn Bhd v. Ng Hoe Keong [2021] MLJU 158.

Protasco Bhd v. Tey Por Yee [2021] 1 LNS 1247.

Repco (Malaysia) Sdn Bhd v. Tan Toh Fatt [2012] MLJU 186.

UMCI Ltd. v. Tokio Marine & Fire Insurance Co. [2006] SGHC 142.

Yekambaran Marimuthu v. Malavawata Steel Bhd [1993] MLJU 96.

Statutes

Rules of Court 2012 (“ROC 2012”)

UK Civil Procedure Rules (CPR)

Footnote(S):

¹ Hamid, N. A. A., & Abdullah, N. (2012). Discovery of documents and confidentiality in civil proceedings. Australian Journal of Basic and Applied Sciences, 6(11), 185–190.

² Yekambaran Marimuthu v. Malavawata Steel Bhd [1993] MLJU 96.

³ Newaction Marketing Sdn Bhd v. Lee Lun Teong [2026] CLJU 181.

⁴ Nguang Chan v. Hai-O Enterprise Bhd [2009] 5 MLJ 40.

⁵ Rules of Court 2012, O 24 r 8.

⁶ Mohamed, D. (2012). Discovery and inspection of documents under the Malaysian and English civil procedure. American-Eurasian Journal of Agricultural & Environmental Sciences, 12, 185–190.

⁷ Rules of Court 2012, O 24 r 3(1).

⁸ Rules of Court 2012, O 24 R 7(3)(a).

⁹ Faber Merlin Malaysia Bhd v. Ban Guan Sdn Bhd [1981] 1 MLJ 105.

¹⁰ Mohamed, D. (2012). Discovery and inspection of documents under the Malaysian and English civil procedure. American-Eurasian Journal of Agricultural & Environmental Sciences, 12, 185–190.

¹¹ Malaysian Court Practice (LexisNexis, 2024) [Order 24, Rule 3].

¹² Allimi Udin v. TWA (Malaysia) Sdn Bhd [2025] CLJU 3329.

¹³ Lonrho Ltd v. Shell Petroleum Ltd [1982] AC 173; Su, T. J., & Teo, K. G. (2012). The rules of court 2012: Post-modern litigation. Malayan Law Journal, 4.

¹⁴ P.E. Lim. (2025). Applications for discovery against parties. P.E. Lim Litigation Research. https://pelim.my/applications-for-discovery-against-parties/

¹⁵ Mohamed, D. (2012). Discovery and inspection of documents under the Malaysian and English civil procedure. American-Eurasian Journal of Agricultural & Environmental Sciences, 12, 185–190.

¹⁶ Mohamed, D., & Abas, A. (2011). The process of gathering evidence in civil cases. Malayan Law Journal, 3.

¹⁷ Mohamed, D. (2012). Discovery and inspection of documents under the Malaysian and English civil procedure. American-Eurasian Journal of Agricultural & Environmental Sciences, 12, 185–190.

¹⁸ Am Finance Bhd v. Teras Cemerland Sdn Bhd [2008] MarsdenLR 3714; [2008] MarsdenLR 1.

¹⁹ Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40.

²⁰ Newaction Marketing Sdn Bhd v. Lee Lun Teong [2026] CLJU 181.

²¹ Protasco Bhd v. Tey Por Yee [2021] 1 LNS 1247.

²² Mohamed, D. (2012). Discovery and inspection of documents under the Malaysian and English civil procedure. American-Eurasian Journal of Agricultural & Environmental Sciences, 12, 185–190.

²³ Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. [1882] 11 QBD 55.

²⁴ All Kurma Sdn Bhd v. Teo Heng Tatt [2024] MLJU 1811.

²⁵ Rules of Court 2012, O 24 R 7A.

²⁶ Mohamed, D. (2012). Discovery and inspection of documents under the Malaysian and English civil procedure. American-Eurasian Journal of Agricultural & Environmental Sciences, 12, 185–190.

²⁷ Baker McKenzie. (2025). Global privilege and professional secrecy guide (5th ed.).

²⁸ Billion Prima Sdn Bhd v. Nutech Co Ltd [2017] 1 CLJ 179.

²⁹ UMCI Ltd. v. Tokio Marine & Fire Insurance Co. [2006] SGHC 142.

³⁰ Baker McKenzie. (2025). Global privilege and professional secrecy guide (5th ed.).

³¹ OAG Engineering Sdn Bhd v. Ng Hoe Keong [2021] MLJU 158.

³² Repco (Malaysia) Sdn Bhd v. Tan Toh Fatt [2012] MLJU 186.

³³ Mohamed, D. (2012). Discovery and inspection of documents under the Malaysian and English civil procedure. American-Eurasian Journal of Agricultural & Environmental Sciences, 12, 185–190.

³⁴ Ministry of Justice. (n.d.). Civil procedure rules: Part 31 – Disclosure and inspection of documents. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

³⁵ Repco (Malaysia) Sdn Bhd v. Tan Toh Fatt [2012] MLJU 186.

³⁶ All Kurma Sdn Bhd v. Teo Heng Tatt [2024] MLJU 1811.