How to play safe on document retention

Author: | Published: 1 Jul 2005

On May 31 2005, the US Supreme Court reversed Arthur Andersen's post-Enron conviction for obstruction of justice. The events leading to Andersen's prosecution fundamentally reordered the world in which companies plan and defend their document practices. In contrast, the reversal of the accounting firm's conviction will have only limited impact on these issues. Criminal prosecutions for obstruction of justice remain rare, and the issues driving document management policies today arise almost exclusively out of civil litigation. Nonetheless, Arthur Andersen LLP v US lends support to continuing efforts by lawyers for companies to proactively control discovery exposure by anticipating and managing its contents long before the first demand is made, and promises a safe harbour for such retention programmes against criminal prosecution and, by extension, civil sanctions.

Document preservation post-Enron The collapse of Enron in 2001 shook confidence in the US markets and ushered in an era of increased scrutiny...