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A Study on the Discovery of Electronically Stored Information(E-Discovery)
December 01, 2011


1. The discovery allows litigant to collect lawsuit related evidence and material from the other party and/or third party prior to proceedings: It can disclose lawsuit related information upon request of concerned parties without the court at either civil procedure or criminal procedure. The discovery was discussed to be offline evidence, for instance, documents and evidence material. In information society, digital evidence having a variety of drives under ubiquitous environment is being expanded so that online and network evidence has become more important than offline evidence is. However, electronically stored information (ESI) for evidence may produce many problems because of its wide areas; for instance, excessive expenses, forgery and damage because of flexibility, recovery and access of the material deleted, delayed procedure because of professionalism and unnecessary disclosure of important material, and request for either specific equipment or specific programs because of invisibility and unreadable: Being different from paper made documents in the past, ESI evidence was needed to approach professionally and technically. As a result, a terminology of e-discovery made appearance to be main issue at civil procedure. 2. The e-discovery has expanded discovery from paper documents to ESI, and it has special regulations based on features of ESI. The e-discovery has features to differ from discovery: Firstly, discovery of ESI shall require supports from external professionals. Secondly, discovery of old data that discovery party is unable to make use can be done when reasonable access is evidenced. Thirdly, the one who asks for discovery may ask to investigate the other party's computer system on the spot. Fourthly, ESI that is dynamic can make change without third party's involvement: So, discovery shall be done subject to a certain level of preservation duty. The ESI shall be used for e-discovery, and it has much more valuable information than document information has. The ESI exists in various types, and it can be divided into three; original copy data, meta data and image files. And, it can be classified depending upon type of the production: original file, database, spreadsheet, images, letter, ASCII code, conversion form, video & audio, paper document, automated litigation support (ALS) and online ESI storage. 3. Foreign e-discovery legislations are: In the United States, in 2004, division of the discovery of the Civil Rules Advisory Committee submitted a revised bill of the discovery including a series of courses: The committee opened a public hearing to collect opinions and to announce the bill by the Supreme Court of the United States after approval of the Senate Judiciary Committee. The bill was valid and effective as of December 1, 2006. In the UK, the Civil Procedure Rules has rules of e-discovery. In other words, Part 31 of the Civil Procedure Rules has regulated procedures of the discovery under provision of “Disclosure and Inspection of Documents”. But, the Civil Procedure Rules had no provision of e-discovery, and 31B of the Practice Direction, an affiliated rule, has regulated Disclosure of Electronic Documents. In Canada, no case of e-discovery was reported so that judicial precedent of e-discovery was not developed. And, in Canada, Sedona Canada principle, e-discovery guideline and e-discovery order model were combined with existing judicial precedents to give a guide for application of e-discovery. 4. The criminal procedure has not procedural regulations and guides of methods and standards of e-discovery. However, ESI of the discovery has influence upon not only civil procedure but also criminal procedure, and criminal procedure needs to make use of ESI of the prosecutors to assure defendants of actual defence and to defend effectively. The ESI that prosecutors keep may include not only information that cannot be submitted to be an evidence but also information that defendants can submit as an evidence of not guilty. No supply of the information by discovery procedure may have great influence upon protection of Constitutional and procedural rights of the criminal defendants. The e-discovery has mismatching attribute with current Criminal Procedure Act. In other words, the Criminal Procedure Act has regulated that prosecutors shall submit documents as an evidence to do discovery: In other words, material that prosecutors do not submit as an evidence shall not be included in discovery. Therefore, e-discovery can be excluded in the beginning. And, limitation on discovery is not effective at e-discovery. Lastly, e-discovery is done in relation to either crime facts or defendants so that discovery is much likely to contain information that is difficult to give the other party at discovery process. A standard of estimation of discovery shall be presented in accordance with e-discovery of criminal procedure that current discovery regulation is unable to include it. The e-discovery of criminal procedure shall differ from that of civil procedure. At first, e-discovery of the criminal procedure has the greatest limitation that keeping of no defect of e-discovery conflicts with discovery. And, e-discovery of the criminal procedure has limitation on professional's support and expense burden of e-discovery. Lastly, e-discovery of the criminal procedure has limitation on punishment against damages of e-discovery. 5. In legislation, e-discovery shall be limited to take actions against paper document based discovery. When e-discovery is against its purpose or gives discovery party excessive burden, methods, time and scope of the discovery shall be limited. A legislative standard shall be made to judge complicated e-discovery of criminal procedure. The ESI may give burden to discovery because of complexity and enormous quantity than litigation procedure does: So, litigants shall make efforts and save time and expenses. E-discovery shall be permitted at following cases; 1) Not only crime facts but also discovery exceeds expenses and burden for recovery and processing of enormous quantity of ESI; 2) The ESI that is supplied by discovery is thought to be important to evidence concerned party's argument and defense. Therefore, the principle of proportionality shall be suggested to judge scope of the discovery by comparing needs of e-discovery and values of discovery material. The expense burden principle for e-discovery shall be made. Considering ability of criminal defendants, ESI of e-delivery shall be important to evidence a case, and the Government shall bear expenses and costs upon reasonable request of the ones who ask for delivery. Abuse of e-delivery shall be punished to clarify legislation of criminal e-discovery. In the United States, abuse of the system have a serious problem. When e-discovery is thought to be abused considering contents and scope of the one who asks for e-discovery, regulations shall be made to decline delivery and to punish. The e-discovery policy may include court-appointed e-discovery professional such as court-appointed lawyer in favor of defendants who are short of money and time in accordance with the criminal procedure, and to help the defendants. Technology department of e-discovery shall be opened in Korea Legal Aid Corporation to employ not only full-time professionals but also volunteer professionals. To lessen ESI of discovery, separate storage for upload of delivery material shall be produced online. Online e-discovery storage can lessen labor and expenses for storage of ESI in the media, and to save transportation cost to deliver documents to the other party, so that it is thought to be valuable.

Heesung Tak

Public Safety and Crime Prevention, Criminal Law&Policy

Senior Research Fellow

Heesung Tak's picture

Research Interest (Major)

Criminal Procedure, Criminal Evidence Act, Digital Forensic Science

Report List

Advances in Neuroscience and Its Influence on Paradigm of Criminal Law(Ⅱ)

Development of Brain Science and the Transition of Criminal Paradigm - A Preliminary Study on the Intersection of Brain Science and Criminal Law

A Study on the Discovery of Electronically Stored Information(E-Discovery)

Criminal Justice Policies and Judicial Systems (V) -Evaluation on Civil Participation in Criminal Trials-

Criminal Policy and Judicial System (Ⅳ): Policy Analysis of Sentencing Reform and Sentencing Guideline System

Improvement of Prison Work -The Legal Status of Prison Work-

Achievements of Research in the Field of Criminology and Criminal Justice for the Past 30 Years and Future Challenges(Ⅱ) (Research on Criminal Law)

Reforms for the Criminal Justice System Based on Fairness and Human Rights (Ⅰ) - Measures to Enhance the Evidence Examination Methodology for an Objective Fact-finding in a Penal Offense

Analysis of Korean Criminal Justice System and its Management (Ⅲ): Diagnosis on Investigative Structure and Elements for Improvement

Comprehensive Integration Model Frame of Digital Forensic

A Preliminary Study on Building Crime Prevention System Utilizing Crime Big Data (Ⅱ)

Directions and Implications of Korean Criminal Legislation: Current Status Analysis and Future Suggestions

Criminal Justice Polices and Judicial Systems (ⅩⅣ): Evaluation Research and Legislative Improvement on the Video Recording System in Criminal Procedure

Korean Institute of Criminology Official Video - image

Korean Institute of Criminology Official Video

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