S. Korea's top court reviews adoption of pre-trial discovery for fair civil litigation

[Source: MK DB]

South Korea’s top court is studying adopting a pre-trial evidence exchange system emulating the discovery process of the United States to promote fairness in the country’s civil proceedings, a move that would likely draw strong protest from the corporate community on concerns of leak in management and business secrets.

According to industry sources, the National Court Administration of the Supreme Court put together a team of 10 experts tasked with studying implementing a discovery procedure at the Korean civil court.

Pre-trial discovery, a standard procedure in the U.S. civil litigation, is the process of exchanging information and evidence amongst parties to a legal proceeding. The process ensures fair access to information for all parties and prevents “trial by ambush.”

The system has gained spotlight in Korea during the years-long patent battle between the country’s electric vehicle majors LG Energy Solution and SK Innovation in the U.S.

In February, LG Energy Solution prevailed in $1 billion battery trade dispute at the U.S. International Trade Commission. The commission found during the electronic discovery that SK Innovation committed spoliation of evidence, which resulted in the order of default judgment against the company.

Under the current law, the burden of proof in civil cases is usually on the party claiming damages, placing individuals in disadvantage in lawsuits challenging large institutions. The discovery system can level the uneven playing field between plaintiffs and defendants and enables efficient settlement of cases before the main lawsuit.

However, the business community voices strong concern over the plan as the pre-trial discovery may lead to leakage of trade secrets and can add hardship for small and mid-sized companies who cannot finance costly litigation. Multinationals also could bring patent suits in Korea.

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