Searching for Gaps in the Law

Privacy and Privilege v. Pursuit of Truth
In any legal dispute, the ultimate goal should be the attainment of justice. However, in this process, a fundamental tension exists between the right of a petitioner to access evidence and the society’s need to protect litigants from invasive and costly “fishing expeditions.”  This tension is addressed differently across jurisdictions, reflecting their divergent legal philosophies. While the United States and the United Kingdom utilize expansive “Discovery” and “disclosure” mechanisms rooted in adversarial traditions, South Korea employs a far more restrictive ‘Document Production Order’ system. Through a comparative lens, it becomes evident that the Korean civil law model, by prioritizing the protection of trade secrets and individual privacy, too often sacrifices, inadvertantly, substantive justice in favor of the privileged. 

Origins and Philosophical Foundations
The divergence can be first found in the historical roots of these systems. Common law systems, like those of the US and UK, are inherently adversarial. The court acts as a neutral referee while the parties “fight” (or the lawyers they hire “duel’) to find the truth. The US system, formalized by the Federal Rules of Civil Procedure in 1938, operates on the “cards on the table” philosophy: mutual knowledge of all relevant facts is essential to fair litigation. 

Conversely, South Korean is a civil law system heavily inspired by German tradition. It is ‘Inquisitorial’ or judge-led, where the state and court—represented by the judge—takes the primary role in fact-finding (It is often said in the US system, the jury are the deciders of fact). Jury trials are rare in Korea. Historically, this has meant that private parties have less power to compel their opponents to hand over evidence, as the authority to gather proof is centralized in the judiciary rather than the litigants. The court, in the interest of efficiency and limited by financial restraints, will rely on evidence submitted by the parties and neglect to further conduct evidence collection. 

Mechanism and Workings: “The Inequality of Arms” 
The practical application of these philosophies creates a stark contrast in how evidence is handled: 

• US Discovery: The court’s role is passive, intervening only during disputes. Lawyers conduct depositions and issue subpoenas, possessing the strongest right to “fish” for any material relevant to proving their case. 
• UK Disclosure: The court plays a more active management role. While lawyers have a ‘duty to the court’ to reveal facts, parties are limited to documents that either support or harm a case, seeking a middle ground between total transparency and efficiency.
• Korean Document Production Order: The court’s role is primary and highly restrictive. Unlike the US and UK, there is no pre-trial phrase during which the parties engage in evidence gathering in preparation for the trial. In Korea, a petitioner must identify specific documents before they are produced—a “catch-22” where one must prove that a document exists and is relevant without having seen it. The best a lawyer can do is petition the judge, who has the ultimate authority to grant or deny the motion for a ‘Document Production Order’ to the opponent. 

Intended and Unintended Consequences
Each system faces unique challenges. For example, the US system is notoriously expensive and prone to tactical abuse due to its sheer breadth. The UK system, despite its procedural checks, still faces high compliance costs and potential delays. 

However, the consequences in South Korea are more systemic regarding its neglect of ‘substantive justice.’ By prioritizing the prevention of “fishing expeditions” and the protection of trade secrets, the Korean system exacerbates the already existing “information asymmetry” or an ‘Inequality of Arms’ between the parties of a dispute. For example, a victim of an illegally constructed wall collapsing, faces an almost an insurmountable barrier in their attempt to sue the responsible company; if the injured party cannot access the internal technical documents that ultimately led to the accident (fault), there is no case to be argued before a court. An injury has occured but it cannot be redressed.

Furthermore, while the US and UK impose severe sanctions for ‘spoliation’ (or hiding or destroying evidence), there are often no consequences for hiding or destroying evidence in South Korea. The court may order the company to produce the evidence (or ‘Document Production Order’), but such orders are often ignored with impunity due to an absence of punishment. This lack of a ‘litigation hold’ culture allows the powerful to shield themselves behind a veil of privacy that the law actively facilitates, systematically exploiting and ignoring the vulnerable. 

Recent Shift towards Convergence, but Far Too Behind 
Recent developments suggest a growing recognition of these flaws. As of 2026, South Korea has begun introducing “K-Discovery” rules to address problems of information asymmetry in technology-driven disputes, including court-appointed expert investigations and preservation orders. However, these rules still only apply to corporations and their trade secrets, not individuals who are victimized by illegal acts commited by corporations. This current system that makes the discovery of evidence nearly impossible for the injured party does not protect privacy so much as it protects the status quo. In Korea, the core mission of the law—to reveal the truth and provide redress—is too often left behind. 

While the common law world struggles with the excesses of transparency, the Korean civil law system remains haunted by the absence of it. Until the ‘Document Production Order’ evolves from a device-on-paper into a robust tool for truth-seeking, the Korean courtroom will continue to offer a procedural sanctuary for the powerful at the expense of substantive justice for the vulnerable. 

Can Access to Justice be attained when injured parties or parties alleging injury in a dispute are denied access to potential evidence their opponent hides? What happens if there is an ‘Information Asymmetry’ or ‘Inequality of Arms’ where the accusing party is the “little guy” facing large conglomerates or powerful political forces? The mechanisms meant to bridge this gap—ranging from the expansive ‘Discovery’ of the United States to the much more conservate ‘Document Prouction Order’ of Civil Law jurisdictions like South Korea—reflect a fundamental tension in legal philosophy. This discussion explore …. Right of a petitioner to access evidence against the need to protect litigants from invasive and costly “fishing expeditions.” 
Pre-trial information exchange or compulsory disclosure of evidence, fact-finding, information asymmetry=Inequality of Arms For example, a consumer suing a giant tech company for a defect they can’t prove without internal documents or a whistle blower… 

The Court’s role in Discovery processes is passive and it intervenes only for disputes. On the other hand, the lawyers’ role is important because they conduct depositions and issues subpoenas. Parties to disputes have broad rights, requesting almost any relevant material to prove their case. Out of all systems, Parties are provided with the strongest righ to “fish” for evidence through depositions and interrogatories.  

In UK’s Disclosure system, the Court plays an active role in the process, managing the scope of the process…   The lawyer works with the courts and is boud by a “duty to the court” to reveal facts. Parties are limited to documents supporting or harming a case. 

However, in Korea, the Court’s role is primary, deciding whether or not to grant specific motions; the Court ahs the ultimate authority to order evidence submission.      The best a lawyer can do is petition the judge.  Parties’ rights are highly restrictive; they must identify specific documents first. Unlike the US and UK, there is no pre-trial phrase of a litigation, making it nearly impossible to obtain evidence that is in the possession of the opponent, as the petitioner must prove that the document exists first. 

Historically, this distinction can be traced …. common law (US/UK) systems are “Adversarial”: the court acts as a neutral referee while the Parties “fight” to find the truth. Broad discovery is permitted becuase the burden of gathering evidence lies entirely on the parties, not the judge. South Korean law, heavily inspired by German law is a civil law system: it is “Inquisitorial” or judge-led. Traditionally, the judge leads the fact-finding process; because the State (the court = the judge) has the power, the Parties have historically had less “private” power to force their opponents to hand over evidence. 

Trade-off between Seeking the Truth and Efficiency/Privacy. … believe that “cards on the table” approach leads to the most accurate truth and encourages settlements. On the other hand, Korea prioritizes protecting trade secrets and preventing “fishing expeidtions (looking for evidence without proof it exists)” and keeping legal costs low. The cost of which is justice. 

Naturally, the US discovery system is notoriously expensive and prone to tactical abuse. The UK disclosure system seeks to strike a middle ground by requiring parties to disclose even harmful documents. Yet, the compliance costs are still high and proceedings can be delayed due to complex procedural rules. 

Sanctions Spoliation (can lose the case immediately for hiding information)…. no consequence for hiding evidence in South Korea 

Modern movement towards convergence … civil law countries expanding document production orders to be more “discovery-like” to hand more complex cases, while common law countries are attempting to “reign-in” on discovery to reduce costs. E-discovery the volume has increased but methodology has become more advanced.