ediscovery issues | INTELLECTUAL DATA
eDiscovery
Points to Keep in
Mind for eDiscovery

For a company to establish the right strategy for eDiscovery, it must be well aware of the current situation and
requirements of the trial, and minimize the potential risk factors during trial. In particular, understanding and
complying with the law, principles and obligations of the parties concerned with regards to eDiscovery are absolutely crucial.

BASIC PRINCIPLES OF E-DISCOVERY
  • Integrity

    Full(all things relevant) evidence, and evidence
    of complete integrity without any modification,
    tampering or changes must be produced.

  • Validity

    Materials which provides valid support for the
    argument of a concerned party or materials of
    high relevance with the trial’s point of
    dispute may be requested.

  • Timeliness

    Materials ordered by the court to be produced
    within the evidence submission period must
    be submitted. Failure to do so may result
    in fines or unfavorable rulings.

HOW KOREAN COMPANIES NEED TO PREPARE
FOR CROSS-BORDER LITIGATIONS
  • Litigation Holds
    are Key
    01 05

    Litigation Hold is a measure to prevent
    data deletion or tampering before or during
    trial. Parties concerned in the trial have
    an obligation to preserve all data relevant
    to the trial. With preemptive Litigation Hold,
    evidence will be preserved, ensuring that one
    does not receive any unfavorable treatments
    during trial.

  • The Core is
    Data Security
    02 05

    Documents produced for Discovery are
    generally sensitive corporate data or core
    technology. Therefore, it is crucial to
    locate data storage in Korea and strictly
    limit the pool of resources who have access
    to the data in the process of document
    submission to the court

  • Manage Information
    Governance Properly
    03 05

    Compared to other global companies, the
    IT environment of Korean companies are
    considerably different. Most have various
    self-developed infrastructures running and
    are using customized security solutions. Cross-
    border trials must understand the company’s
    IT environment, and proceed accordingly with
    the right approach.

  • Identify Data That
    Can & Cannot be Accessed
    04 05

    According to Article 26(b)(2)(B) of FRCP,
    even if the storage(archiving) format of the
    data is technically difficult or costly to
    recover, if the evidence is within the agreed
    scope, one is obligated to produce that evidence.
    Therefore, investigation and assessment into
    hether or not the data is archived in a recoverable
    format must be done beforehand.

  • Manage a Growing Number
    of Data Types and Venues
    05 05

    Obligation to preserve evidence imposed
    during eDiscovery may be a significant burden
    for companies as corporate data increases
    exponentially nowadays. Companies must be
    aware of the document formats being
    produced by their employees and manage
    the situation.

eDiscovery Requirements and
Common Mistakes
  • Proper E-Discovery
  • Preservation Obligation
  • Not Too Expansive
  • Backup Tapes
  • Agreement is Essential
eDiscovery must be managed properly

In Green v. Blitz U.S.A, the defendant was found to have not executed Legal Hold, poor coordination with the IT department,
and inadequate execution of Discovery with inaccurate keyword search results. As a result, the defendant was ordered to pay
nearly KRW 300 million in fines and state the Sanction Memorandum of this trial in all litigations for the next 5 years.

Spoliation in Trial is Devastating

In 2009, a federal district court in the US viewed the actions taken by a Korean company, a concerned party in a
patent infringement lawsuit, to delete relevant e-mails as an act of spoliation of evidence. Sanctions were imposed as a
result to pay for all attorney costs and court costs. In addition, the court allowed the jury to make adverse inferences
in contrary to the arguments made by the defendant who committed spoliation of evidence(a Korean company)

eDiscovery must not be overly broad

In Moullin Global Eyecare Holding v. KPMG in 2010, the court did not accept the plaintiff’s argument at trial, recognizing
that the plaintiff’s requested scope of Discovery was too expansive.

Backup tapes can create problems in eDiscovery

In Jonson v. Neiman in the US, the plaintiff requested that the 5,880 backup tapes owned by the defendant be restored and
submitted via e-mail. However, the defendant made strong arguments against this, stating that excessive costs and time
are required to restore the backup tapes, and the backup tapes cannot restore facts with complete integrity. The court found
in favor of the defendant and excluded them for data submission.

Agreement about discoverable content is essential

In Digicel v. Cable & Wireless PLC in the UK, the defendant made a decision based on discretion to not restore backup tapes
without an agreement with the plaintiff, and did not produce this data. In response, the plaintiff asked for sanctions against
the defendant for taking such an arbitrary action without a mutual agreement. The UK court ordered the defendant to restore the
backup tapes and produce them as additional discovery.

Sanction

According to the FRCP 37(e), one may be subject to court sanctions if found in violation of eDiscovery principles or rules.
Sanctions are the strongest form of penalization in a civil trial which has considerable impact on the actual outcome of a trial.
Concerned parties who engaged in such violations may be sentenced to do time in prison.

  • Monetary

    Sanctions to impose punitive fines or
    litigation related expenses of the opponent as a penalty

  • Limiting Claims/Defense

    Prohibiting certain claims or defenses, or
    submission of matters related to evidence in court

  • Default Judgement

    If the court finds any actions committed by one of the
    parties which is a severe violation of the law, the court can
    rule in favor of one party without going to trial.

  • Adverse Inference

    The judge may officially instruct the jury to make ‘adverse inferences’