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[Herald Interview] Digital forensics to play bigger role in Korean companies’ foreign litigation

Lawyers at BKL anticipate higher demand for collaboration with foreign law firms amid pandemic

Bae, Kim & Lee senior foreign attorney Kim Se-jin (left) and partner Kim Kwang-jun speak at an interview with The Korea Herald at the Bae, Kim & Lee headquarters in Seoul. (Park Hyun-koo/The Korea Herald)
Bae, Kim & Lee senior foreign attorney Kim Se-jin (left) and partner Kim Kwang-jun speak at an interview with The Korea Herald at the Bae, Kim & Lee headquarters in Seoul. (Park Hyun-koo/The Korea Herald)
The dominance of digital devices in the work environment has led to significant changes in global litigation involving corporate disputes.

The massive amounts of intangible data have increasingly emerged as key evidence of business misconduct that is becoming more and more sophisticated.

A high-profile case in the US this year was a true testament to the trend. Electronic discovery conducted by the US International Trade Commission led to a preliminary ruling -- by default -- in favor of plaintiff LG Chem, the agency said, citing SK Innovation’s “spoliation of evidence” concerning its alleged theft of trade secrets.

As seen in the LG Chem-SK Innovation case, South Korean companies are increasingly becoming concerned with foreign litigation when they demand the forensic inspection of counterparts’ electronically stored data at home and abroad, or look to defend themselves against such claims, lawyers at the Seoul-based law firm Bae, Kim & Lee said in an interview.

While the Korean legal system does not recognize discovery -- much less e-discovery -- as a legal process, local entities often turn to courts in the United States and other countries to seek legal recourse through digital forensic science.

“We have seen a growing number of cases (involving Korean parties) where foreign authorities request evidence through the e-discovery procedure,” said Kim Kwang-jun, a partner at BKL, in a recent interview with The Korea Herald.

In the US, plaintiff or defendants present electronically stored information during discovery, a popular pretrial procedure in US civil cases concerning the theft of trade secrets, anticompetitive practices, intellectual property infringement, graft, failure to abide by the terms of agreements in cross-border investment, and other matters.

“Unlike in Korea, where parties usually expect a final judgment in court proceedings, civil cases in the US allow a party to pour in the financial resources to reach a settlement before a court trial, in what could be often seen as a war of attrition,” said Kim Se-jin, BKL’s senior foreign attorney, who is licensed to practice in New York.

“Korean firms might feel flustered when they approach the US litigation without proper preparation when dealing with the different legal procedures that are different from Korea.”

This led to BKL’s decision in January 2020 to expand its task force dedicated to digital forensics, first created in 2015, into one covering e-discovery and investigations.

Led by Kwang-jun, a former prosecutor and head of the legal affairs group at web portal operator NHN, the team also has two former forensic science officers at the Supreme Prosecutors’ Office, legal professionals with ample experience of dealing with cross-border litigation and white-collar crimes.

“We felt a need to expand the team (by adding e-discovery and investigative capabilities to the digital forensic team) because we had limitations in addressing the soaring demand for legal actions in the previous setting,” Kwang-jun said.

The demand is also coming from law firms in the US. Many are seeking to join hands with Korean law firms, especially in this time of the coronavirus pandemic, as overseas travel restrictions hamper the US law firms’ attempts to conduct digital forensic inspections outside the US.

This translates into a need for Korean partners with the necessary resources and platforms, and multilingual lawyers who are capable of handling documents in Korean, the BKL lawyers said. They added that the local legal partner can undertake various other pretrial tasks for US firms such as document reviews and the deposition of witnesses in Korea. They can also assist US firms in providing periodic reports to their Korean clients.

“In the wake of the COVID-19 pandemic, travel restrictions are in place, hindering US lawyers from traveling to Korea to carry out various discovery processes, including e-discovery work,” Se-jin said.

“E-discovery and forensic inspection are now popular items that particularly demand such collaboration between US and Korean law firms.”

Bae, Kim & Lee partner Kim Kwang-jun (left) and senior foreign attorney Kim Se-jin speak at an interview with The Korea Herald at the Bae, Kim & Lee headquarters in Seoul. (Park Hyun-koo/The Korea Herald)
Bae, Kim & Lee partner Kim Kwang-jun (left) and senior foreign attorney Kim Se-jin speak at an interview with The Korea Herald at the Bae, Kim & Lee headquarters in Seoul. (Park Hyun-koo/The Korea Herald)
BKL was the second Korean law firm to address digital forensic capabilities for overseas litigation, after Kim & Chang.

The task force’s key responsibilities are to find out whether an opponent has tampered with key digital evidence, and at the same time to prove that its own client’s evidence has not been altered. This work takes place in pretrial proceedings that often involve spending on a colossal scale by the litigants.

“It is important to prove that electronic data sets are admissible in court,” Kwang-jun said. “Otherwise, the opposing litigating party may question the authenticity of the data set.”

The BKL lawyers said the task force has the ability to manage an enormous flow of documents, primarily with the help of US software called Relativity.

“In addition to what evidence the e-file contains, the concept of electronic documents became so extensive that it would naturally cover metadata as important evidence in lawsuits, including information about when and how an e-file was created, modified or removed,” Se-jin said.

“Now that the discovery process in US litigation addresses electronically stored information, a significantly large volume of documents must be presented to comply with the court’s requests.”

Another key consideration is that any digital data obtained for e-discovery proceedings is secured in an airtight environment within Korean territory.

BKL opted out of storing sensitive data in Relativity’s server infrastructure, located outside Korea. Instead, it partnered with an undisclosed domestic cloud computing service provider to ensure the security of all data.

“We have come up with measures to ensure the data we obtain are not leaked. We sign contracts to prevent any data leaks during the e-discovery procedure. We also review data in an isolated ‘clean room’ environment to ward off any inflow or outflow of information during the document production process,” Kwang-jun said.

By Son Ji-hyoung (consnow@heraldcorp.com)
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