On-Site Investigations 2019

Definition of Search & Seizure A procedure to which submission is compulsory (강제처분), that may be taken upon a subject’s residence, belongings, person, or any other place, for the purpose of subsequent seizure Targets of seizure: evidence or objects subject to confiscation A procedure to which submission is compulsory (강제처분), that is carried out to obtain custody of objects. Compare with “consent-based” administrative on-site investigations (competition, tax, etc.)

Search & Seizure Procedures 1 Issuance of Warrant Upon request by the public prosecutor, issued by a court judge 2 Execution of Warrant Presentation of the warrant While a search & seizure is in progress, third parties are prohibited from entering into the premises, and violators may be forcibly removed The party subject to the search & seizure, as well as his/her/its counsel, has the right to be involved in the search & seizure process Delivery of the list of seized items Third parties prohibited? Counsel not necessarily compulsory in the

Key Steps Reviewing and interpreting the warrant The warrant must, and usually includes, specific information about the scope. Language in the warrant is usually generic and difficult to argue against. Investigators will argue for broad application; some room for discussion. Negotiating with the investigators Balance is important—strong defense is crucial, but even very clear-cut legal arguments may provoke the investigators. Receiving the list of seized items The list should be as specific as possible

Content of Warrant (Criminal Investigation) Information related to the investigation: Target Individuals Alleged Charges Reasons for Search & Seizure

Content of Warrant (Criminal Investigation) Information related to search & seizure: Site to be searched: Office building, floors, departments, residence, cars, etc. Search/Seizure scope: Diaries, USBs, mobile phones, documents, electronic data (that are connected to the alleged charges)

Search & Seizure Practices Based on the court-issued warrant, counsel should negotiate with the investigators : Comprehensive vs. Selective: Entire hard drives, laptops, USBs, Mobile Phone (image copying) vs. Only files and folders related to the subject matter of the warrant. Police and Prosecutor's Office will bring their forensic specialist investigators: Important to have forensic specialists to defend (raise reasonable objections against wholesale image copying beyond the warrant) Office, Car, Home could be subject to Search & Seizure Documents must not be hidden or destroyed. For items seized, take note (and make a copy) of the seized items. Escort the investigators and make sure that they do not search or seize items beyond the scope of the search warrant (but must not obstruct the government officials). Request that investigators take copies, not originals, based on business reason (the government may decline).

Search & Seizure Practices Employee Interviews by the Investigators: Without a specific warrant, no formal obligation to answer questions or to accompany officials to another location but practically, may be good to provide reasonable cooperation. Employees should provide truthful answers, but should not guess on things they do not know. Before responding to requests for interviews, consult with inhouse or external counsel. On requests/questions that the employee is unsure or not comfortable, not unreasonable to ask to check facts further or consult with counsel. Risk on attorney-client communication documents/electronic files: If applicable, explain that lawyer communication documents should not be seized But privilege protection is not clearly established in Korea and the authorities may take them. Media contact, if any: Coordinate through PR team

Receiving the List of Seized Items Investigators executing the warrant have the obligation to provide the list. However, if you don’t push for it, you may end up with a very general list. Crucial to forensics investigation to know what has been seized.

How to Respond Designate in advance the contact points, as well as a search & seizure response team Prepare in advance how to disseminate the news of a search & seizure, should one occur Contact internal and external counsel Request for the investigators to present the warrant Review the content of warrant Set up a workspace for the investigators Consider how to provide requested files (data storage device, hard copy images, etc.)