미국 연방 민사소송규칙상의 전자적 자료의 증거개시에 관한 연구

The U.S. Federal Rules of Civil Procedure distinguish the sources ‘not reasonably accessible’ and those ‘reasonably accessible’ in the discovery of electronically stored information. For the electronic information which is ‘reasonably accessible’ a party should provide discovery of the information or list of information. However, for the electronic information which is ‘not reasonably accessible’ the party need not provide discovery of the information. On motion to compel discovery, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may order discovery from such sources if the requesting party shows good cause. The distinction for the electronically stored information should be considered in the legislation in Korea, because the party is usually able to get enough information from ‘more easily accessible sources’ considering large volume of information. The party who cannot get enough information from those sources may request discovery from ‘not reasonably accessible’ sources, which is the way to harmonize between the needs for discovery and business purposes. Korean Civil Procedure provides that the court may admit the requesting party’s assertion on the statement of document if the party from whom the discovery is sought fails to submit in violation of the discovery request, which means that the court may admit the existence and content of the document requested. This does not mean that the matters or designated facts shall be taken to be established in accordance with the claim of the party. This provision is in need of effectiveness of sanction against violation of duties. It should be changed to the effect that the asserted matters shall be taken to be established or submission of those evidence shall be prohibited as the case may be. Korean Rules of Civil Procedure provides that the party may provide discovery with the document printed out in the discovery of electronically stored information. In the event the ‘metadata’ or ‘embedded data’ is important evidence in the lawsuit, the problem is that the data are not visible in the printed-out form of the document. If the data is important for the lawsuit, the information in the electronic form should be submitted.