미국 연방 디스커버리법제상 보존의무에 관한 연구 - 원고를 중심으로 -

초록

There are discussions about introducing a modified U.S.-style discovery to the Korean civil procedure. The discovery research group formed by the Supreme Court Judicial Administration Advisory Committee submitted a report noting the need to clarify when the duty to preserve triggers by amending the Article 350 of the Civil Procedure Act. The proposed amendment imposes a duty to preserve, which states that all parties should not delete related documents when a lawsuit is reasonably expected. Since there is no U.S.-like duty to preserve under the current Korean civil procedure, it is useful to refer to the related jurisprudence of the United States in order to interpret the proposed amendment going forward. This article examines the U.S. federal court precedents on the duty to preserve of the plaintiff, focusing on the trigger of the duty to preserve. Then, I propose that, to make it easier for the public to know when the duty to preserve triggers, examples should be given through specific legislation. Finally, in the United States, a party generally will put in place a litigation hold to fulfill the duty to preserve. Considering that Korean party probably will put in place a similar litigation hold if duty to preserve is triggered, I provide an example of a preservation notice that a plaintiff’s attorney may use to put on a litigation hold when the duty to preserve triggers.

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