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Jipyong News|KOREA LEGAL INSIGHT

K-Discovery: Korea’s New Discovery Rules and What It Means for Korean Litigants

2026.03.03

Introduction
<div> 
On January 29, 2026, Korea’s Legislature passed amendments to the Act on the Promotion of Mutually Beneficial Cooperation between Large Enterprises and Small and Medium Enterprises (the “Cooperation Act”).  The amendments introduce, for the first time, statutory rules for evidence disclosure commonly referred to as “K-Discovery”.  The new discovery rules taking effect two years after the promulgation are expected to strengthen parties’ access to evidence through on-site inspection by experts, preservation orders, and broader admission of investigative materials. </div>
 
 
1. Policy Background

<div> 
Traditionally, Korean civil procedure has allowed only limited discovery.  Document production orders are rare and difficult to obtain, particularly where trade secrets are involved.  For parties having to prove IP infringement, institutional barriers to critical evidence have been extremely high.  The newly introduced K-Discovery is aimed at addressing the information asymmetry – it expands the judicial authority to preserve evidence at an early stage, even before a formal lawsuit is filed.  While the new rules will apply only to disputes governed by the Cooperation Act, it is widely regarded as a pilot model for discovery reforms under other statutory regimes including the Patent Act and the Unfair Competition Prevention and Trade Secret Protection Act.  In essence, the Act aims to enhance evidentiary access and procedural fairness in technology-driven disputes, while serving as a testing ground for broader discovery reforms across Korea’s broader litigation system. </div>
 
 
2. Key Features of the K-Discovery

<div> 
The amendments introduce three new mechanisms allowing access to evidence beyond the traditional limits of Korean civil procedure.</div>
 
A) Court-Appointed Expert Investigation

<div> 
Courts may appoint neutral experts to investigate alleged misconduct and assess damages.  These experts have expansive authority: they may enter offices or production facilities, review documents, operate equipment, and conduct measurements or experiments.  Unjustified refusal or obstruction may result in adverse inferences and administrative fines of up to KRW 100 million for corporations and KRW 50 million for individuals.  Non-cooperation is no longer a viable defense strategy.</div>
 
B) Preservation Orders and Criminal Sanctions

<div> 
Courts may issue preservation orders where relevant evidence is deemed to be at risk of destruction or alteration, even prior to the filing of a lawsuit.  Intentional destruction of evidence is punishable by up to seven years’ imprisonment or a fine of up to KRW 100 million.  In effect, this establishes a statutory litigation hold obligation, requiring immediate suspension of routine data deletion or alteration once a preservation duty is imposed.</div>
 
C) Out-of-Court Party Examinations

<div> 
K-discovery introduces Korea’s first deposition-style disclosure mechanism, permitting attorney-led examinations of relevant parties outside courtrooms, recorded via audio or video.  Failure to appear or testify without justification triggers adverse inferences.  Courts may deem the opposing party’s factual assertions or the facts sought to be proven as true.</div>
 
 
3. Statutory Recognition of Attorney-Client Privilege

<div> 
For the first time, attorney-client privilege has been expressly codified in Korean statutes.  Privileged communication may be excluded from expert investigations or redacted from examination records.  As the party asserting privilege bears the burden of proof, businesses are advised to proactively identify and manage privileged materials before a dispute arises. </div>
 
 
4. Expanded Pre-Contract Coverage

<div> 
K-discovery extends to conduct occurring before execution of formal agreements.  Technical discussions, proposal submissions, and MOUs may therefore fall within the reach of K-Discovery.  This expansion increases compliance risk at early negotiation stages, particularly for companies pursuing R&D collaboration or technology transfer in Korea. </div>
 
 
Conclusion

<div> 
K-Discovery is not US-style discovery – it is court-centered, statute-specific, and relies on neutral expert fact-finding rather than broad party-driven disclosures.  At the same time, it goes further than traditional civil-law inspection models, opening the door to adverse inferences, administrative sanctions, and criminal penalties for evidence tampering.  For businesses operating in Korea, the reform significantly increases the need for data governance, internal controls, and pre-contract information management.  Automated deletion policies, informal documentation practices, and inadequate privilege management may expose both companies and individual employees to heightened legal risks associated with foreseeable disputes.  Recommended actions include: 
 
<ul>
	<li>Litigation-hold protocols for suspending routine data deletion upon notice of potential claims.</li>
	<li>Audit of pre-contract engagement practices for compliance with evidentiary obligations.</li>
	<li>Privilege protocols for identifying and managing privileged materials.</li>
</ul>
 
The K-Discovery signals broader powers for the Korean judiciary in marshalling evidence, as similar reforms are expected under other Korean statutes. </div>

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