Some global companies are actively filing cross-border lawsuits against Korean
companies for the purpose of trying to block market entry. Against such backdrop,
large conglomerates and SMEs in Korea are becoming more interested in eDiscovery
which is part of pre-trial in cross-border litigation process.
eDiscovery is a legal proceeding under the Common Law held before the trial
begins. Parties involved in the litigation must mutually share evidence and
documents to clarify the points of dispute. Examination of facts allows the
parties concerned to be in possession of facts and review them thoroughly, making
it possible to clarify the points of dispute and streamline the trial process.
Once the defendant receives the complaint, he or she either choose to represent themselves or hire an attorney to make an appearance within the given period according to the process as stipulated in the complaint. If the defendant fails to make an appearance within the period stated in the complaint (Approximately 21 days May be extended upon request), the court may make a fully favorable judgement (also referred to as Default Judgement) based on the request of the plaintiff without oral proceedings. Therefore, after receiving the complaint, the defendant should immediately contact one’s lawyer to respond with caution and speed.
Interrogatories are part of Discovery which refer to the process of one party sending a written questionnaire to the other party with the purpose of securing information relevant for the trial.
In general, a previously confirmed person of one party sends the questionnaire to a confirmed person of the other party. The number of questions which can be raised through such a written questionare is normally limited to 25 according to the rules of the court(for FRCP patent trials), but additional questions may be allowed by obtaining permission by the court.
According to Article 33 of FRCP, the person who received the questionnaire must provide an answer within 30 days.
At the FRCP 26(f) meeting (Meet and Confer), the appointed attornies prepare for the upcoming FRCP16 (Case Management Conference, or CMC), and establish a plan and timeline for Discovery. Under such circumstances, if evidence needs to be submitted electronically, the type, location and submission form are discussed.
A statement of testimony or witness examination refers to documentation recorded by the witness out-of-court with the purpose to use in trial. After receiving a written or oral question by a designated person, the witness is sworn in, and provides one’s testimony. The records are later used in court as proof.
In the case of cross-border trials, as the international law firm generally asks oral questions directly, a professional interpreter is hired to facilitate the process. And sometimes a court-certified court reporter or videographer sit in on the process.
While Discovery takes place in the FRCP16 meeting(CMC), the plaintiff and defendant gather together in court for an oral proceeding or meeting to review the status of Discovery or align on points of dispute with regards to producing of certain evidence.
Based on the joint report drafted in the Meet and Confer meeting, both parties reach a final conclusion on the timeline of the trial to take place in court, and the court decides on a Scheduling Order. In addition, at the CMC, discussion topics range from not only the future timeline of the trial, but also the background and main points of dispute for the case.
In a US patent trial, in addition to Discovery with regards to facts, experts are called in to provide expert opinions to the jury on matters including the patent’s function, value, determination on whether infringement occurred or not, and damages. Expert testimony in court is allowed after the judge makes a decision based on the relevancy and reliability of the particular subject matter and testimony.
Forensic collection is the process to collect the
electronic data storage devices(PC, mobile device, or
external storage drive) of a custodian who has connections
with the trial or subject matter.
From the collected data, documents relevant to the trial
are uploaded to a specialized solution for eDiscovery and
processed. Through this process, the documents collected
from various sources are converted into a format enabling
extraction from the database upon search.
From the documents which were collected without any filtering,
documents that are actually relevant to the trial or subject
matter are searched, found and reviewed. Out of such documents,
there is a review process so that the documents which may be
acknowledged by the court as Privileged Documents may be excluded.
From the documents to be produced, partial redaction of
personally identifiable information or sensitive information
not relevant to the trial is possible. The source data is
converted into the appropriate format, and produced to the
agencies (court, government investigative agencies and etc).
Discovery allows both parties involved to exchange
information and identify trials with no ground or means
of defense. As a result, when the trial proceeds, one has
a certain level of understanding about gain and loss or
unfavorable standing in the case. This can accelerate
voluntary resolution of dispute from the parties concerned
early on in the trial.
Unlike the Law of South Korea which the party concerned
needs to prove one’s argument, Discovery under
the Common Law requires information and records
pertaining to the trial be produced as evidence and
shared with one another based on the Good
Faith Principle to clarify the points
of dispute. This makes it possible to have fair arguments
based on facts.
After the amendment to FRCP in 2006, the previous
paper-based discovery has been changed to Electronically
Stored Information(ESI). Evidence converted into digital
format has made the data analysis and identifying the
points of dispute much easier and faster.