미국 전자증거개시절차상 비례원칙에 관한 연구 = A study on the proportionality in electronic discovery in the U.S.A.

다국어 초록 (Multilingual Abstract)

Various characteristics of the electronically stored information continue to cause a problem of an increase in the cost and burden in the U.S. E-discovery. And the discussion on the use of the proportionality as a representative means for solving this problem continues. The proportionality on the discovery is already reflected in the existing federal rules of civil procedure. However, due to the ambiguity of the proportionality in practice it did not work properly utilized. So several principles or guidelines of the proportionality on the E-discovery are used as a means for solving practical problems. But the principles or guidelines are difficult to uniformly apply because there is no binding. The amendment to the federal rules of civil procedure seeking to change the proportionality were provided to overcome the limits of the principles. Reviewing increase of the need, discussion and the change in the rules for the proportionality could be an important basis as we introduce the discovery for the future. This article reviewed an increase in the cost in the E-discovery,the proportionality as a means for solving problems, the proportionality set out in the federal rules of civil procedure and amendments, the Sedona Conference’s Commentary on Proportionality in Electronic Discovery, and implications for our systems. The implication summarized as follows: First, considering the characteristics, proportionality shall seek to change gradually. Second, when we introduce the discovery, it is reasonable to introduce proportionality in the discovery, but active use of the proportionality is likely to increase rather than the time and cost of litigation. Third, for proper use of the proportionality it should be preceded by ensuring professionalism of judges. And the systematic and ongoing training should be supported to ensure the professionalism. Forth, it is worth considering the use of the principles or guidelines as a means to fill the spaces between the rapidly changing reality and the law.