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.
Full(all things relevant) evidence, and evidence
of complete integrity without any modification,
tampering or changes must be produced.
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.
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.
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
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
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.
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.
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
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.
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)
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.
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.
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.
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.
Sanctions to impose punitive fines or
litigation related expenses of the opponent as a penalty
Prohibiting certain claims or defenses, or
submission of matters related to evidence in court
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.
The judge may officially instruct the jury to make ‘adverse inferences’