What to shred?
When to Shred?
Companies, firms, and partnerships produce a multitude of documents during their ordinary course of business. It is impossible to keep all of these documents because of space limitations and storage costs. Therefore in an effort to manage their paperwork and to deal with excess and unnecessary documents, companies have turned to document retention policies. Such policies should be created in advance of document destruction or during a neutral time without litigation. In order to avoid violating the law, however, these policies must clearly describe what documents have to be retained and what documents can be destroyed, as well as the appropriate time for destruction.
Most companies, firms, and partnerships have policies designed to guarantee that outdated and otherwise useless documents are not needlessly maintained. Moreover, routinely reviewing and purging old files will prevent unnecessarily damaging documents from coming to light. Indeed, one of the best reasons for having a formal policy is that it reduces legal exposure through the destruction of possibly incriminating evidence. No single document retention policy will suit all companies; each business must create one that is specifically tailored to its needs. Nevertheless, because a company has a duty to preserve specific documents pursuant to federal laws and when there is a possibility that litigation may be commenced, certain requirements should be in all policies. All policies should clearly state the categorization of documents and electronic files, what documents must be preserved, the retention period for each category, the document destruction procedures, and what to do when litigation or an investigation commences.
II. FEDERAL OBSTRUCTION OF JUSTICE STATUTES
The purpose of the federal obstruction of justice statutes is to protect the honor and integrity of proceedings before the federal judiciary, proceedings before federal agencies, and proceedings before Congress.38 While there were eighteen sections in the obstruction of justice chapter of Title 18, three sections in particular dealt with the destruction of documents prior to the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”): 18 U.S.C. sections 1503, 1505 and 1512-sections 1503 and 1505 concerning the obstruction of justice and section 1512 explicitly forbidding the destruction of evidence by tampering with a witness, victim or informant.39 Sarbanes-Oxley has created two new obstruction of justice laws that specifically alter the destruction or alteration of documents and evidence: 18 U.S.C. section 1519, as a general anti-shredding law, and section 1520, as a retention of audit workpapers law.40 These two provisions, drafted in response to the recent corporate scandals and document destruction in the Andersen case, are protective measures, designed to preserve documents and punish those who destroy such documents without having to use the different elements of sections 1503, 1505, and 1512.41