전자증거의 수집과 한국형 E-Discovery의 모색

Due to the development of modern information processing technology, the general use of IT devices, and the rapid development of information and communication technology including the Internet, electronic documents are almost replacing paper documents. Therefore, the subject of evidence collection in civil litigation is also changing to intangible electronic information rather than tangible objects such as paper documents, which are traditional forms of evidence. The collection of electronic evidence is not impossible even with traditional evidence collection schemes, but it is necessary to enact special rules because of the inherent characteristics of electronic documents, such as storage media independence and unreadability without monitor or printer. In that context, it is necessary to devise a so-called “Korean E-discovery” system. To this end, it is necessary to look into the special rules on e-discovery of the U.S. Federal Rules of Civil Procedure and to design an e-discovery system scheme which fits the reality of Korean civil procedural system. It is reasonable to design an “Korean E-discovery” system centered on the order to produce documents in view of the fact that must be institutionally guaranteed without compromising promptness and economy, and that documents have great practical value in the proof process. In light of the institutional objective that sufficient opportunities to collect evidence must be guaranteed without excessively damaging the advantages of our civil litigation system, which boasts speedy and economical determination of proceeding, and the reality that documents are given substantially important evidentiary weight in litigation, it is reasonable to design an Korean e-discovery system centering on the order to produce documents. Because the 「Act to Use Electronic Documents in Civil Procedure」 enacted in 2010 allows the submission of file itself of electronic documents for the purpose of order to produce documents, this could be called Korean e-Discovery. However, the reason why the parties still feel that the means of collecting evidence is institutionally insufficient may not be lack of a system unique to e-discovery, such as litigation-hold or severe sanction on the spoliation of evidence. Rather, the reasons are more likely to stem from problems common to the discovery of paper documents, such as (1) lack of document information, (2) difficulty in application due to strict application requirements, or (3) the scope of discovery and relevance of documents. Therefore, the improvement of Korean e-discovery should be carried out carefully, distinguishing what should be done in the same way as the traditional evidence collection procedure and what is unique to e-discovery.