A subpoena duces tecum is one of the methods of evidence investigation used by civil courts. Evidentiary investigations include witness interviews, fact-finding, document requests, and document production orders. A document request is a request to the party in possession of a document (a record in various forms, including paper documents) to submit the document to the court. If a party to the trial (plaintiff or defendant) requests it, the court will decide whether to accept it or not.
In this case, Byun requested two types of evidence. The first is forensic materials from 2017, including imaging files created when the special prosecutor seized the so-called "Second Choi Soon-sil Tablet".
The tablet device was seized by the special prosecutor from Jang Shi-ho on January 5, 2017, and remained unsealed for about a month until February 2, 2017. During this time the device was manipulated several times, including the deletion of many important records inside. This is according to the results of a forensic examination by the Korea Cyber Forensic Professionals Association (KCFPA) conducted during the "tablet return tria" last year.
"If we compare the image file of the tablet obtained by Choi Seo-won's side last year with the image file of the tablet on January 5, 2017, before the special prosecutor tampers, the special prosecutor's tampering will be more clearly revealed," Byun said.
"It was easy to request the documents because the court first acknowledged the need for the original forensic data from 2017 at the last trial session,” he added.
Byun also requested six investigative documents related to CCTV footage of Choi's nephew, Jang Si-ho, entering and leaving Choi's residence in October 2016.
Jang claims to have found the "Second Choi Soon-sil Tablet" on October 26, 2016, when she was clearing out the remaining belongings in Choi's home at Choi's request. On January 4, 2017, during a special prosecutor's investigation, the prosecutor showed her the CCTV footage and asked her what she had brought out of Choi Seo-won's house.
On January 5, 2017, she informed the special prosecutor of the existence of the tablet and submitted it. As such, Jang Si-ho's version of how she obtained and submitted the tablet was reflected in the special prosecutor's investigation at face value.
However, Choi Seo-won refutes ever giving Jang Si-ho instructions to remove her belongings in October 2016 and claims that Jang Si-ho's visit to her home is false.
As such, the court ordered the Seoul Central District Prosecutors' Office to submit CCTV footage during the "tablet return trial." However, the prosecution failed to do so, citing unspecified reasons such as national security. In the end, the trial court ruled that Jang's claims, including how she obtained the tablet, were "clearly false."
"Since the court ruled that Jang Shi Ho's story about how she obtained the tablet from Choi Seowon's house was false, the prosecution is unlikely to submit the CCTV footage again," Byun said. "The fact that the special prosecutor coached Jang Shi Ho to falsify her 'story' will be confirmed in this trial," he added
As Byun predicted, the prosecution will probably not be able to submit imaging files, CCTV investigation materials, and other requested evidence. In Choi Seo-won's tablet return trial, the court ordered the production of these items, but the prosecution was unable to produce them.
"If the prosecution fails to do so this time, we will ask the court to rule in favor of the plaintiffs, considering that Yoon Seok-yeol, Han Dong-hoon, and others have failed to refute the allegations of tablet manipulation," Byun said.
