communication while in transmission” to anyone other than sender and intended
recipient.
192 Individuals or entities who violate these provisions may face criminal
liability under the general disclosure proscription, 18 U.S.C. 2511(1)(c), and civil
liability under 18 U.S.C. 2520.
193
4.4 Data Retention: Preservation of Digital Documents
in the Litigation Context
Lawyers and their clients have long had a legal duty to take reasonable steps to
prevent the intentional or negligent destruction of evidence that might be used as
evidence in future litigation.
194 Long before the dawn of the digital age and the
creation of electronic evidence, American courts possessed the power to hold parties
who were seen as interfering with the judicial process in contempt.
195 In the criminal
law arena, prohibitions on the destruction of evidence have traditionally fallen under
the rubric of obstruction of justice laws that generally prohibit any attempt to
interfere with the administration of justice. Still, it was not until Congress passed
the Sarbanes-Oxley Act, that there was a specific federal statute in place that
prohibited the destruction of documents. Specifically, 18 U.S.C. § 1519, criminalizes
any “knowing” destruction of documents with the intent to impede a “contemplated”
investigation.
196 This prohibition against spoliation now extends to the preservation
of electronic evidence.
197 Because violations of civil laws may sometimes lead to
criminal prosecution, once a corporate client is on notice of a possible criminal
investigation, they have a duty to preserve digital evidence.
198 Pursuant to
18 U.S. Code §1519, it is a crime to “knowingly alter, destroy, mutilate, conceal,
cover up, falsify, in any record, document, or tangible object with the intent to
impede, obstruct, or influence the investigation or proper administration of any
matter with administration of any matter within the jurisdiction of any department
or agency of the United States or any case filed under Title 11, or in relation to or
contemplation of any such matter or case”.
199 Although the language of the Act
appears to be quite broad, in United States v. Aguilar, the U.S. Supreme Court held
192 Id. at 19.
193 Id.
194 Gorelick et al. (1989), pp. 255–256.
195 Stanger (2005), p. 13 citing United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812).
Available online at: http://blj.ucdavis.edu/archives/vol-5-no-2/document-destruction-after-enron.
html.
196 18 U.S.C. § 1519.
197 Leahy and Gilchrist, 126 Am. Jur. Proof of Facts 3d 1, Sanctions for Spoliation of Electronic
Evidence § 12, p. 13 (2012) (citing numerous cases).
198 Young (2001).
199 Pub. L. 107–204, title VIII, § 802(a), July 30, 2002, 116 Stat. 800).
436
S. M. Boyne
recipient.
192 Individuals or entities who violate these provisions may face criminal
liability under the general disclosure proscription, 18 U.S.C. 2511(1)(c), and civil
liability under 18 U.S.C. 2520.
193
4.4 Data Retention: Preservation of Digital Documents
in the Litigation Context
Lawyers and their clients have long had a legal duty to take reasonable steps to
prevent the intentional or negligent destruction of evidence that might be used as
evidence in future litigation.
194 Long before the dawn of the digital age and the
creation of electronic evidence, American courts possessed the power to hold parties
who were seen as interfering with the judicial process in contempt.
195 In the criminal
law arena, prohibitions on the destruction of evidence have traditionally fallen under
the rubric of obstruction of justice laws that generally prohibit any attempt to
interfere with the administration of justice. Still, it was not until Congress passed
the Sarbanes-Oxley Act, that there was a specific federal statute in place that
prohibited the destruction of documents. Specifically, 18 U.S.C. § 1519, criminalizes
any “knowing” destruction of documents with the intent to impede a “contemplated”
investigation.
196 This prohibition against spoliation now extends to the preservation
of electronic evidence.
197 Because violations of civil laws may sometimes lead to
criminal prosecution, once a corporate client is on notice of a possible criminal
investigation, they have a duty to preserve digital evidence.
198 Pursuant to
18 U.S. Code §1519, it is a crime to “knowingly alter, destroy, mutilate, conceal,
cover up, falsify, in any record, document, or tangible object with the intent to
impede, obstruct, or influence the investigation or proper administration of any
matter with administration of any matter within the jurisdiction of any department
or agency of the United States or any case filed under Title 11, or in relation to or
contemplation of any such matter or case”.
199 Although the language of the Act
appears to be quite broad, in United States v. Aguilar, the U.S. Supreme Court held
192 Id. at 19.
193 Id.
194 Gorelick et al. (1989), pp. 255–256.
195 Stanger (2005), p. 13 citing United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812).
Available online at: http://blj.ucdavis.edu/archives/vol-5-no-2/document-destruction-after-enron.
html.
196 18 U.S.C. § 1519.
197 Leahy and Gilchrist, 126 Am. Jur. Proof of Facts 3d 1, Sanctions for Spoliation of Electronic
Evidence § 12, p. 13 (2012) (citing numerous cases).
198 Young (2001).
199 Pub. L. 107–204, title VIII, § 802(a), July 30, 2002, 116 Stat. 800).
436
S. M. Boyne