The court emphasized the necessity of document discovery for fair proceedings, establishing criteria that the document must be identified, relevant, and in the possession of the opposing party.

[1] The plaintiffs by their statement of claim dated 7 December2001 sought inter alia an injunction against the 1st, 2nd and 3rd defendants from using or disclosing confidential information obtained from the 2nd plaintiff; an injunction against the 3rd defendant from passing off the business of the plaintiffs; an order of delivery up of infringing documents and materials by the defendants to the plaintiffs and an order for an account of profits or for damages to be assessed. The plaintiffs have also sought inter alia, an injunction against the 3rd, 4th and 5th defendants from infringing their trade mark and from passing off the infringed products; an order for the delivery up of the infringed products to the plaintiffs for disposal by destruction and an order for an account of profits or for damages to be assessed.

[2] The plaintiffs allege that the 1st and 2nd defendants have stolen confidential information from them pertaining to the manufacturing process of the 1st plaintiff's glucosamine sulphate based product for the treatment of osteoarthritis, known as "Viatril- S" and marketing the same under the mark of "Artril 250".

[3] At all material times the 1st defendant was employed by the 2nd plaintiff as its group product manager and the 2nd defendant was engaged by the 2nd plaintiff as an independent consultant to help register new pharmaceutical products distributed and sold by the 2nd plaintiff with the Drug Control Authority (DCA) under the Ministry of Health, Malaysia.

[4] The plaintiffs allege that the 3rd, 4th and 5th defendants are involved in the manufacture, distribution and sales of a purported glucosamine sulphate based osteoarthritis drug known as Artril 250 which is similar to and/or bears a colourable and deceptive imitation of the 1st plaintiff's trade mark. The 1st plaintiff contends that the product is an infringement of their trade mark and the passing off is intended to steal the business of the plaintiffs thereby causing loss to the plaintiffs.

[5] The 1st and 2nd defendants have denied the allegations of theft of confidential information from the plaintiffs. The 3rd, 4th and 5th defendants have denied the allegations of infringement of the 1st plaintiff's trade mark and of passing off.

[6] The case was part heard by High Court Kuala Lumpur, Commercial Division 9 with the plaintiffs having called six witnesses. The plaintiffs have not closed their case.

[7] The plaintiffs have by a summons in chambers dated 5 January 2009 (encl 79) applied to the Court for an order of discovery and production against the 1st, 2nd, 3rd, 5th and 6th defendants of a document known as Annex B, being a document required by the DCA when considering an application for the registration and approval of a pharmaceutical product.

[8] The plaintiffs require the said document for the sole purpose of comparing it with its own Annex B to determine whether the defendants' Annex B contain confidential information or trade secrets of the 1st plaintiff with regards to the manufacturing of their product 'Artril 250' in competition with the plaintiffs' product 'Viatril-S'.

[9] The plaintiffs relied on the following grounds in support of their application:

9.1. the existence of the document Annex B filed by the defendants with the DCA has never been disputed by the defendants;

9.2. there is no privilege or secrecy attached to the defendants' Annex B;

9.3. the purpose of the discovery and production of the defendants' Annex B is solely for the purpose of comparison with the plaintiffs' Annex B and there is no fear of any improper disclosure;

9.4. the disclosure will assist the Court in arriving at a true and fa