ITS Testing Services (M) Sdn Bhd v DP Fluiteq Sdn. Bhd. (WA-22IP-24-03/2024)

DP FLUITEQ SDN. BHD.

DEV MENON A/L GOPALAN

PETER CHANG NGI LEE

MURUGAN A/L SELVARAJ (IDENTIFICATION CARD NO.: 700927-10-6191) … DEFENDANTS GROUNDS OF JUDGMENT A. Introduction [1] The plaintiff filed two applications for discovery: a. The first application, in enclosure 5, is an application under order 24 rule 3 and/or rule 7 of the Rules of Court 2012 (“ROC 2012”) for discovery against the defendants; and b. The second application, in enclosure 7, is an application under order 24 rule 7A of the ROC 2012 for discovery against a third party, Carigali-PTTEPI Operating Company Sdn Bhd (“CPOC”) (collectively, the “Discovery Applications”). [2] The court dismissed the Discovery Applications, for the reasons set out below. B. Background Facts [3] The 2nd, 3rd and 4th defendants were former employees of the plaintiff. The 2nd and 3rd defendants incorporated the 1st defendant, and are its directors and shareholders. [4] The plaintiff claimed that sometime in August 2023, it became aware that its client, CPOC, had engaged the 1st defendant to provide, inter alia, water analysis and microbial monitoring solution related services. These are services provided by the plaintiff. [5] It is the plaintiff’s contention that the 2nd to 4th defendants had unlawfully used and exploited the following confidential information of the plaintiff (“Confidential Information”) for the benefit of the 1st defendant: a. Formulas, designs, specifications, machine and tooling files, process flow, drawings, know-how, manuals, technical documents, fact sheets and/or instructions for the design, installation and integration of the devices and methods for testing, inspection and analysis; b. Client lists, contacts, sales, marketing and promotional information; c. Non-public financial and operational information, including but not limited to financial reports and information about earnings, expenses and investments, pricing information, order lists, vendor or supplier lists, contract information, customer data, business development materials, costs of goods, personal files, company policies, manuals, guidelines, procedures and standard operating procedures, and videos and memos; d. Business intelligence of the plaintiff, including market research report in relation to the industry; and e. Any document marked confidential, internal use only, proprietary, or by such other means as to indicate the intent is that the document is confidential to the plaintiff. [6] The plaintiff claimed that without the Confidential Information, the defendants would not have been able to provide services to CPOC. [7] The plaintiff has also been offering testing and inspection services involving an application for water analysis and microbial monitoring solution under the “Sidestream” name, brand, indicia or mark (“Sidestream Application”). The plaintiff claimed the defendants used the plaintiff’s specifications, designs, drawings and know-how to develop devices and products for sample taking that are identical or similar to the devices and products in the Sidestream Application. [8] Thus, the plaintiff filed this action against the defendants, claiming the defendants had committed a breach of confidentiality and intellectual property infringement in using the Confidential Information, and the tort of passing off in making reference to the Sidestream Application. The plaintiff also claimed the defendants conspired to injure the plaintiff and had unlawfully interfered with the plaintiff’s trade. [9] The Discovery Applications were filed to seek discovery of documents and information from the defendants and CPOC. C. The Discovery Applications [10] The plaintiff filed the Discovery Applications under order 24 rule 3 and/or rule 7, and order 24 rule 7A of the ROC 2012. [11] Order 24 rules 3 and 7 of the ROC 2012 are provisions on discovery against a party in a proceeding. These rules apply to enclosure 5, a discovery application filed by the plaintiff against the defendants. The provisions state that the court may order a party: a. To give discovery by making or serving a list of documents which are or have been in his possession, custody or power, and an affidavit verifying such list (order 24 rule 3(1)); and b. To make an affidavit stating whether any document specified or described in a discovery application is or has at any time been in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it (order 24 rule 7(1)). [12] Order 24 rule 7A(2) of the ROC 2012 are provisions on discovery against a person who is not a party in a proceeding. This rule applies to enclosure 7, a discovery application filed by the plaintiff against CPOC. Order 24 rule 7A(6) provides that an order for discovery may require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them. [13] The documents for which the plaintiff has sought discovery from the defendants and CPOC, listed in schedule A of enclosures 5 and 7, are identical. They are: a. Correspondence between the defendants and CPOC including emails, letters, memos, and all communications related to water analysis and hydrodynamic study related services offered by the defendants, including the discussions leading up to the appointment of the 1st defendant and on the replacement of the plaintiff with the 1st defendant for services; b. Contracts or agreements between the defendants and CPOC for the provision of water analysis and hydrodynamic study related services; c. All documents on and/or connected to the devices and methods offered by or capable of being offered by the defendants to CPOC and/or others, for the water analysis and hydrodynamic study related services, including but not limited to the product specifications, user manuals, technical documentation, and promotional materials; and d. Any other documents or information that are relevant to show the defendants’ use of the Confidential Information and/ or features of the Sidestream Application. D. Considerations and Findings [14] The court first considered the conditions that must be met for an order for discovery to be granted. These are set out in Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581, at page 585e: “The essential elements for an order for discovery are threefold; namely, first there must be a "document", secondly, the document must be "relevant" and thirdly, the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought.” (emphasis added) [15] Thus, in determining whether the Discovery Applications should be allowed, the court considered whether: a. There are documents for which discovery is sought; b. The documents are relevant; and c. The documents are in the possession, custody or power of the defendants and/or CPOC. [16] In answering the first question – whether there are documents for which discovery is sought – I note that the documents sought by the plaintiff relate to the plaintiff’s allegation that CPOC had appointed the 1st defendant for services previously provided by the plaintiff to CPOC. The plaintiff sought correspondences and contracts between CPOC and the 1st defendant on such services. However, the evidence before the court shows that CPOC did not engage the 1st defendant directly for services. This was confirmed by CPOC, who had affirmed that it does not have any direct contractual relationship with the 1st defendant. As such, I am of the view that the documents subject to discovery, as listed in schedule A of enclosures 5 and 7, are not in existence. Thus, the first condition set out in Yekambaran (supra) has not been met. [17] Next, I note that the plaintiff has not particularised the documents in schedule A of enclosures 5 and 7. Instead, these documents are referred to broadly and generally as correspondences, contracts and agreements, and all documents connected to or relevant to the delivery of water analysis and hydrodynamic study related services. [18] The broad and general manner in which the documents subject to discovery are set out and the plaintiff’s failure to particularise the documents, have made it impossible to determine the relevance of these documents to the case before the court. [19] In Hayel Saeed Anam & Company Limited (satu syarikat yang diperbadankan di bawah undang-undang Yemen) & Ors v Marwan Ahmed Hael Saeed [2022] MLJU 892, the court held, citing O Company v M Company [1996] 2 Llyods Rep 347, that documents subject to discovery must be shown by the applicant seeking discovery to offer a real probability of evidential materiality. [20] In the present case, there are insufficient details of the documents in schedule A of enclosures 5 and 7 to support the plaintiff’s contention on the relevance of these documents to its pleaded case. Thus, the second condition in Yekambaran (supra), that the documents subject to discovery must be relevant, has not been met. [21] Further, from my assessment of the evidence before the court, I find the Discovery Applications to be nothing more than a fishing expedition. [22] The plaintiff’s claim that CPOC had engaged the 1st defendant for services appears to have been based on purely speculation and conjecture. The plaintiff had relied on a LinkedIn post containing a photo of the 3rd and 4th defendants taken with representatives of Petroknowledge Sdn Bhd in front of a CPOC logo, to support its claim that a business relationship existed between CPOC and the 1st defendant. [23] It must be highlighted that CPOC had denied engaging the 1st defendant directly for services. Notwithstanding this denial, the plaintiff continued to take the stand that the documents in schedule A of enclosures 5 and 7 are relevant, and are in the possession of the defendants and CPOC. The plaintiff’s position defies logic, as the documents for which the plaintiff is seeking discovery are documents that would only exist had there been a direct contractual relationship between CPOC and the 1st defendant. [24] It is therefore clear in my mind that the plaintiff is utilising the Discovery Applications to fish for evidence and bolster its claim, and as such, the applications should be dismissed (see Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40, at paragraph [13]). [25] Finally, with CPOC’s confirmation that it has not engaged the 1st defendant to render services to it, the very existence of the documents sought is in question. It therefore follows that on the face of available evidence, the defendants’ and CPOC’s possession of the documents have not been proven. Thus, the third and final condition in Yekambaran (supra) has also not been met.

[26] The court finds the conditions required to grant orders for discovery against the defendants and CPOC have not been met. As such, the court dismissed the Discovery Applications, with costs. Dated 12 February 2025 ADLIN ABDUL MAJID Judge High Court of Malaya Kuala Lumpur Counsel: Plaintiff : Joshua Teoh (together with Jasmine Sia Wan Jin) of Messrs. W.J. Sia Law Chambers 1st and 2nd defendants : S. Raven (together with Danial Hazizan) of Messrs. S Ravenesan 4th defendant : Sohan Yong Tharumarajah of Messrs. T Tharuma & Associates CPOC : SY Liew of Messrs. Shearn Delamore & Co