Destruction of Evidence

News & Analysis as of

Lost But Not Forgotten: Overcoming the Statute of Frauds in Tennessee With A Lost Contract

A prospective client comes to you for an initial consultation regarding a possible breach of contract. This individual describes a deal they made years ago with a large out-of-state company where the individual agreed to do X...more

Deflategate Hurdles to Overturn Suspension

Ricardo Cestero, a partner at Greenberg Glusker Fields Claman & Machtinger LLP was quoted in a Law360 article on July 30th discussing the hurdles Tom Brady and the NFLPA face in their attempt to overturn the “deflategate”...more

Business Litigation Alert: "Deflategate and Litigation - Lessons for Businesses"

Whether or not you’re a New England Patriots fan, the news about “Deflategate” seemed to be everywhere, along with opinions regarding the severity (or lack thereof) of the punishment. ...more

Texts, Lies and Footballs: Tom Brady, “Deflategate,” and What’s Next?

Since we last discussed “Deflategate,” New England Patriots Quarterback Tom Brady appealed his four-game suspension resulting from the NFL’s finding that he had committed “conduct detrimental to the league,” based on 1) his...more

Bad Faith Needed for Court to Rule in Favor of Spoliation Sanctions (Illinois)

Charvat v. Valente, 2015 WL 4037776 (N.D. Ill. July 1, 2015) - In this employment case, the plaintiffs alleged that the defendant corporation had engaged in spoliation when it deleted certain files from its employees’...more

Court Takes Middle Ground in Balancing ESI Production Costs (Texas)

F & J Samame, Inc. v. Arco Iris Ice Cream, 2015 WL 4068575 (W.D. Tex. July 2, 2015) - In this trademark dispute case, the plaintiff raised a Lanham Act claim against the defendants’ company, claiming that the defendants’...more

Spoliation: How to Stop Trouble from Brewing

When a business is faced with the potential for litigation, it is imperative that all evidence be preserved to avoid the dreaded “s” word: spoliation. Starbucks Corporation recently learned this lesson the hard way when a...more

And Up to Twenty Years in Prison: The Criminalization of US Customs Violations

The United States’ traditional reliance on only civil penalties against trade violators is changing. During the past several years, the US government has increasingly brought criminal charges against alleged violators, both...more

Fifth Circuit Fires at the Department of Labor with Colorful, Precedential Prose

The Fifth Circuit Court of Appeals recently slammed the United States Department of Labor with a finding of abusive conduct and ordered an award of significant monetary sanctions for bad faith, harassment, and abusive...more

The E-Discovery Digest - June 2015

In This Issue: - - Attorney-Client Privilege/Work Product Decisions: ..Decisions Protecting Against Disclosure ..Decisions Ordering Disclosure - Spoliation and Preservation Decisions: ..Sanctions...more

Effort to Hide Facebook Evidence by Deactivating Account Ends Badly for Louisiana Man

As social media has become ubiquitous, courts are wrestling with more discovery disputes involving social media accounts. In a recent case, Crowe v. Marquette Transportation Co. Gulf-Inland, LLC, the plaintiff...more

Court Decides Sarbanes-Oxley Is Intended for a Different Kettle of Fish The Fish Tale and the U.S. Supreme Court: Part II

By a surprisingly narrow margin, the U.S. Supreme Court recently spared future fishermen from facing up to 20 years in prison for destroying their catch. The case, Yates v. United States of America, involved the curious tale...more

A Colorful Supreme Court Case Revives the Rule of Lenity

Last month, the Supreme Court’s decision in Yates v. United States provided much fodder for pun-filled headlines about fishing. The case involved the government’s attempt to stretch the Sarbanes-Oxley Act, which originally...more

Supreme Court Limits Scope of SOX Anti-Shredding Provision

The US Supreme Court recently reversed the conviction of a commercial fisherman, John L. Yates, accused of violating 18 U.S.C. § 1519, also known as the anti-shredding provision of the Sarbanes-Oxley Act (SOX), holding that...more

U.S. Supreme Court Finds That SOX’s Anti-Shredding Provision Does Not Apply To Fish

When one thinks of the Sarbanes-Oxley Act of 2002 (SOX)—a law created to restore trust in the financial markets following the collapse of Enron—red grouper is not usually the first thing that comes to mind. Nevertheless, the...more

SCOTUS Narrows SOX Obstruction Statute

In its recent ruling in Yates v. United States, the U.S. Supreme Court reversed a conviction under Sarbanes-Oxley’s “anti-shredding” statute, holding that it covers documents, records and only “tangible objects” similar to...more

Corporate and Financial Weekly Digest - Volume X, Issue 9

In this issue: - Meeting of the SEC Advisory Committee on Small and Emerging Companies - Financial Action Task Force Publishes Updated List of Deficient Jurisdictions - CFTC to Host Roundtable on...more

Yates v. United States: Supreme Court Reins in Sarbanes-Oxley Act’s “Anti-Shredding” Provision

Action Item: The Supreme Court’s decision in Yates v. United States will significantly impact how in-house counsel, outside counsel, and compliance officers alike should advise their clients with respect to evidence...more

SOX, the Destruction of Evidence And Dr. Seuss: Is a Fish A Tangible Object?

Section 1519 was passed as part of the Sarbanes-Oxley Act in the wake of Enron’s massive accounting fraud. The section was designed to fill a gap in the law by preventing corporate document-shredding to conceal evidence of...more

SCOTUS Rules No Felony for Throwing the Little Ones Overboard

The case, Yates v. United States, arose from a offshore inspection of a commercial fishing vessel in the Gulf of Mexico. During the inspection, a federal agent found that the ship’s catch contained undersized red grouper, in...more

Merely Discarding Information Won’t Violate Florida’s Tampering Statute

On December 3, 2014, Florida’s Fourth District Court of Appeal overturned a police detective’s conviction for deleting a video from his work cellular telephone. The video recorded a witness making statements about a case, but...more

High Court Divided: Is A Fish A Tangible Object?

Gulf fisherman John Yates was cited by a federally-deputized Florida Fish & Wildlife officer for having caught a few red grouper that were about an inch under the 20” minimum limit at the time (they’d have been legal under...more

Supreme Court Rejects the Government’s “Fishy” Interpretation of Sarbanes-Oxley Obstruction Statute

On February 25, the United States Supreme Court issued a decision in Yates v. United States.1 This case involved the interpretation of Title 18, United States Code, Section 1519, a statute that was added as part of the...more

Supreme Court Decides Yates v. United States

On February 25, 2015, the U.S. Supreme Court decided Yates v. United States, No. 13-7451, holding that fish are not “tangible objects” within the meaning of 18 U. S. C. §1519, a federal law providing that a person who...more

Supreme Court Interprets Sarbanes-Oxley Evidence Destruction Provisions

We now know that Sarbanes-Oxley does not apply to fish . . . While conducting an offshore inspection of a commercial fishing vessel in the Gulf of Mexico, a federal agent found that the ship’s catch contained...more

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