Korea about to introduce a Discovery Policy

Sep 25 Blog

Korea’s supreme court is currently reviewing the government’s newly introduced discovery policy, with a report expected by October of this year. This would be a significant change to Korea’s currently lacking discovery policies; although courts can order for parties to produce documents, there are no enforcement powers which allows respondants to ignore the orders or produce minimal documentation. The result of Korea’s current system is that with evidence being so hard to obtain, many give up on seeking legal redress even after suffering damages for issues such as technological infringement, product liability, and medical litigation.   

A discovery policy has many benefits, such as reducing the burden of proof on consumers in lawsuits against big companies, drastically raising consequences for companies that refuse to comply with court orders to provide relevant evidence (as they currently often do in Korea), and streamlining the process of investigating evidence. Such a policy will further prevent the involved parties from destroying or hiding evidence, as demonstrated in LG Energy Solution vs SK Innovation lawsuit over battery patents (in that case, the International Trade Commission ruled that SK Innovation had destroyed evidence and violated forensics orders, therefore ruling in favor of LG). A discovery policy will also impact patents, as one of the main problems of patent lawsuits is over proving the amount or even existence of damages. 

In this case, Korea is catching up to the standards followed by Europe, Canada and the US. There are already widely established procedures for discovery, including the matter of privilege (privileged documents cannot be viewed by the other party, such as lawyer-client privilege) and the consequences of refusing to comply.