미국 민사소송법상 전자문서의 증거개시제도의 연구

Abstract

This paper dealt with the discovery of electronically stored information(hereinafter referred to as ESI) of Federal Rules of Civil Procedure(hereinafter referred to as FRCP) in USA. The number of ESI as a civil or criminal evidence has been increased greatly in court. According to this situation, USA amended FRCP to introduce the rule about ESI effective in 12.1. 2006. Because of the confusion of the definition of ESI during the short period, there have been many legal problems surrounding ESI. Also Korea may be influenced on by USA civil procedure law due to the Free Trade Agreement article 18 with USA. Sooner or later Korea will have to review Korea's civil procedure law to harmonize USA FRCP. The foregoing reason is the primary motive to study this subject. This paper is divided into 3 parts to write what I want to express effectively. This paper contains main issues in second part. It introduces the concept of ESI, discovery procedure based on USC 28, FRCP, court's case regarding USA 28, FRCP34, and comparison FRCP and Korea civil procedure law. The detailed summary of the main part in this paper is the following; the difficulty of the definition of ESI because of its changing and developing character, which is impossible to identify and decide the scope of discovery. The case introduced in this paper is Columbia Pictures vs. Burnell, Case No. CV 06-1093 in the Central District of California held by USA district court which ordered discovery of random access memory (RAM). Most people do not think of RAM as being part of a computer’s storage because most types of RAM lose their data when the computer powers down. It might not easy to include RAM as a ESI stipulated by FRCP34. From this case this paper explained how often the legal issues on ESI happen because of its unclear concept, and in the end the role of the courts will be great and have to do their best in initiating the discovery process. USA discovery system reflects democracy government depending the many parts of the process on parties instead of court's supervision or intervention. The role of Court in USA is just like umpire in sports game distinguished from Korea civil process which is held by the Court entirely. This paper showed how USA and Korea civil procedure law is different and concluded that we have to consider both good point and undesirable point of USA civil procedure when we have to decide whether we adopt USA discovery procedure or not. Finally this paper emphasized on preparation for legal issues around ESI incoming future to cooperate with the trends of international integration in civil procedure law.