SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
5. Discovery 5.1 Discovery and Civil Cases
son, the third party typically elects to participate in the pending case when it is informed of the fact that the relevant lawsuit is pending. 4.5 Applications for Security for Defendant’s Costs When the plaintiff does not have a presence in Korea, or it is obvious from the complaint, writ- ten submissions, or other case records that the plaintiff’s claim is groundless, the defendant may motion the court to order the plaintiff to pay security for litigation costs. The court shall decide the level of security based on the total amount of costs that the defend- ant is expected to spend at each level of the lawsuit. In practice, the security does not nor- mally exceed 4% of the claim amount. Subject to court approval, the security for litigation costs may be satisfied by way of a surety bond. If the plaintiff fails to pay the security within the period set by the court, the court may dismiss the claim without holding a hearing. 4.6 Costs of Interim Applications/ Motions Interim applications/motions are not considered as separate procedures. As such, even if a par- ty applies for interim applications/motions, the costs are not calculated separately. The court must consider the amount of the costs incurred in such proceedings when allocating the costs of the entire proceeding in the judgment. 4.7 Application/Motion Timeframe There is no limited or fixed timeframe for the court to review an interim application/motion. It could take a few days to a few weeks.
Generally speaking, the scope of discovery in Korea is substantially limited compared to some common law jurisdictions, including the USA. All forms of discovery are conducted by and are under the direct supervision of the court. For example, a party cannot directly ask the other party to produce documents or witnesses. All requests for discovery must be made to the court and must be approved by the court. The judge has wide discretion on whether to allow discovery, the discovery method and the scope of discovery with respect to the parties and also to third parties. Accordingly, although discovery is relatively limited in the general sense, there is some room to obtain evidence through it. When a party fails to comply with the court’s document production order, the court may draw an adverse inference from the lack of action. The same applies when a party, upon receiv- ing a document production order, intentionally destroys the document or makes it unusable. The court may then draw an adverse inference from the document which was not produced. If it was a third party which did not comply with the court’s document production order, the third party shall be subject to administrative fines of up to KRW5 million. 5.2 Discovery and Third Parties Document production orders can be made to third parties that are not named as a plaintiff/ claimant or defendant. In the event that the doc- ument holder is a third party, the court must con- duct examination by asking relevant questions to the third-party holder or its designee before deciding whether the document in question is
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