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Document Destruction Horror Stories

By Andrew P. Gaillard

As corporate information systems expand and government investigations escalate, the incidence of electronic (and other) document discovery debacles is on the rise. In the September Business Crimes Bulletin, Steven F. Reich provided an overview of the various electronic discovery issues addressed a single civil lawsuit, Zubulake v. UBS Warburg LLC, including: Who bears the costs of producing e-mail? Who pays to restore backup tapes? When does the duty to preserve attach? What sanctions should attach to the failure to preserve potentially relevant electronic material?

Three recent cases involving government inquiries provide sobering lessons about electronic evidence to corporations and their lawyers. The most notorious, U.S. v. Arthur Andersen, LLP, resulted in criminal convictions. Another, In the Matter of Banc of America Securities LLC, involved SEC enforcement action. The third, United States v. Philip Morris, arose in a Department of Justice civil suit. If nothing else, the cases demonstrate that corporations exposed to such investigations must implement effective and well-maintained information management systems.

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