Understanding Discovery and eDiscovery in U.S. Litigation
A practical guide for Korean companies doing business in the United States.
Discovery in U.S. Litigation: What It Is and Why It Matters
In U.S. civil litigation, discovery is the formal process through which each side obtains evidence from the other.
Unlike Korea’s limited evidentiary exchange, U.S. discovery is broad and adversarial: each party must disclose not only helpful information but also materials that may weaken its own position.
Discovery’s core purpose is transparency. By sharing relevant documents, data, and testimony before trial, the court ensures that disputes are decided on facts rather than surprise.
The Main Tools of Discovery
Document Requests – One side asks the other to produce specific categories of records: contracts, emails, invoices, bank statements, internal reports, and more.
Interrogatories – Written questions answered under oath, used to clarify key facts, identify witnesses, or explain business practices.
Depositions – Sworn, in-person (or virtual) interviews of witnesses and executives, transcribed verbatim by a court reporter. Counsel for both sides attend, and testimony can later be used at trial.
Each of these tools can generate thousands of pages of information. For global companies, the challenge multiplies when data crosses borders or languages.
The Rise of eDiscovery: Digital Evidence in Every Case
Modern litigation is driven by electronically stored information (ESI) — emails, texts, shared-drive files, Slack messages, cloud storage, and metadata.
The U.S. courts treat these materials as discoverable evidence subject to the same obligations as paper documents.
eDiscovery refers to the identification, preservation, collection, and review of this electronic data.
Failing to preserve ESI after litigation becomes foreseeable can lead to spoliation sanctions — penalties for deleting or overwriting evidence.
When Does the Duty to Preserve Begin?
Once a company reasonably anticipates litigation — for example, after receiving a demand letter or subpoena — it must:
Suspend routine deletion policies and auto-purges,
Issue a litigation hold directing employees to preserve relevant data, and
Coordinate with IT teams to secure servers, cloud accounts, and mobile devices.
This duty applies to U.S. and foreign entities alike. Courts expect good-faith efforts to retain all potentially relevant information, even if stored overseas.
Special Considerations for Korean Companies
Korean corporations often encounter difficulties when their headquarters’ data systems or privacy policies conflict with U.S. discovery orders.
Key points include:
Data Location Does Not Shield Disclosure
U.S. courts can compel production of documents controlled by a U.S. subsidiary — even if stored on servers in Korea.Language and Translation Challenges
Korean-language emails and files must often be translated or summarized for use in depositions and trial exhibits.Privacy and Cross-Border Transfer
Korea’s Personal Information Protection Act (PIPA) restricts export of personal data. Counsel must balance compliance with PIPA while meeting U.S. court orders, often through protective orders limiting data use.Coordination Between Headquarters and Subsidiary
Early communication between Korean HQ and the U.S. legal team is essential to avoid inconsistent responses or delayed productions.
Managing Cost and Risk
Discovery can be the single largest expense in litigation. To manage it:
Implement centralized document-retention policies before any dispute.
Use keyword filters and analytics to narrow large datasets.
Designate bilingual project managers who understand both legal and technical aspects.
Engage experienced eDiscovery vendors early rather than reactively.
Proper preparation often cuts review costs by 30–50 percent and demonstrates good-faith cooperation to the court.
Depositions: The Human Side of Discovery
In depositions, witnesses answer oral questions under oath. Translators may be used, but accuracy and composure are crucial.
Korean executives should prepare extensively — understanding not only facts but also the tone expected in U.S. testimony.
Even minor inconsistencies can be used for impeachment at trial.
Discovery Sanctions and Reputation Risk
Courts can impose sanctions — including adverse-inference instructions or monetary fines — for lost or delayed data.
Beyond penalties, mishandled discovery can harm a company’s reputation with judges, regulators, and business partners.
A disciplined, transparent approach signals professionalism and reliability.
Strategic Takeaways for Korean Businesses
Anticipate discovery as soon as a dispute seems likely.
Issue litigation-hold notices immediately.
Map where your data resides — servers, cloud, messaging apps.
Coordinate with bilingual outside counsel who understands both U.S. procedure and Korean business culture.
Preparedness today prevents panic tomorrow.
Conclusion
Discovery is where U.S. litigation is truly fought — not just in the courtroom but in the data room.
For Korean companies, understanding both traditional discovery and modern eDiscovery is essential to protecting business interests and credibility.
At Good Pine P.C., we help clients navigate these demands efficiently — bridging legal, linguistic, and cultural gaps to ensure that discovery becomes a managed process, not a crisis.
Disclaimer
This publication is provided by Good Pine P.C. for general informational and educational purposes only.
It does not constitute legal advice, does not create an attorney–client relationship, and should not be relied upon as a substitute for individualized legal counsel.
Because every matter depends on specific facts and applicable law, readers should consult qualified counsel licensed in the relevant jurisdiction before taking or refraining from any legal action.
Good Pine P.C. is a U.S. law firm based in New York and New Jersey.
Our attorneys advise clients solely on matters governed by U.S. federal and state law.
References to Korean law, regulatory issues, or practices are provided for comparative or contextual understanding only and do not constitute legal opinions under Korean law.
