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When a client is under investigation, a law firm’s associates often know more than the partners do about what the client is actually doing to respond to the investigation. Associates are the front line soldiers, the beat cops, the eyes and ears that gather information for partners to analyze and assemble. Frequently, junior associates are sent to a client’s business to search for file cabinets, hard drives, floppy disks and desk drawers that contain documents, and to ask corporate officers questions like, “What kinds of records and papers do you keep? Who files them? Where do you store them? Do you take notes of meetings and phone calls? Do you have personal copies of notes and memos in your desk drawer? Have you ever taken documents home?” (I still vividly recall a witness who surprised everyone at a deposition by saying, “I guess those documents are in my garage. I took them home one year when we ran out of storage space at the office.”) Most clients cooperate with an investigation. You arrive at their premises and tell them the law requires them to produce every document called for by a subpoena or document request or civil investigative demand — and you need to go through every organized and disorganized file and pile of documents to decide what’s responsive so the court won’t impose sanctions for failure to comply. In addition, you have to determine which documents are privileged and, more important, you have to figure out what really happened so that the partners on the case can mount a credible (and perhaps even true) defense of the corporation. CLIENTS GRUMBLE Most clients grumble a bit, but they’ve been in litigation before and they know they have to cooperate. They don’t want to be another Wal-Mart getting socked with an $18 million sanction for obstructionist tactics in discovery, or another General Motors getting blasted with an $11 million sanction for withholding documents. Sometimes, though, clients don’t want to cooperate. Fully responding to a document request or subpoena is painful, and some clients (or some individuals who make decisions for corporate clients) don’t want to produce the smoking guns. These individuals think they can get away with partial compliance, or with hiding, falsifying, or forging documents — or even with shredding documents, deleting files from hard drives, and emptying the e-mail trash. What will you do if you discover that a client is about to start destroying documents and disks? You need to think about that situation now so you will be ready to speak up and act if that day ever comes — because if it does come, it will be a defining moment in your career. How will you persuade your client to stop destroying documents? � “Missing documents are hard to explain to a jury.” First of all, destroying documents is a terrible strategy. When I was teaching at Washington University in St. Louis in the 1980s, I invited former American Bar Association President John Shepard to speak to my Professional Responsibility class about the ethics of actual law practice. He made a dramatic point. “Sometimes, clients want to destroy documents that they consider harmful to their case,” he said. “That’s a profound mistake. A good lawyer can find a way to explain almost any document, even an awful document. But it’s very hard to explain a missing document. When a document is missing, the jury will usually imagine something much worse than what was written in the actual document. The famous ’18-minute gap’ was the most damning evidence in all of Nixon’s Watergate tapes. You must therefore do everything in your power to prevent your clients from destroying documents.” Shepard was right. But lecturing a client about trial strategy may not persuade the client. You may need a stronger deterrent. � “Sanctions for spoliation can be severe.” Judges as well as juries see something sinister in missing documents — and judges can impose sanctions. The technical term for destroying (or losing) documents is “spoliation,” which the 2nd U.S. Circuit Court of Appeals defines as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation” ( West v. Goodyear Tire & Rubber Co., 167 F.3d 776 [2d Cir. 1999]). Courts have inherent power to impose harsh sanctions for the loss or destruction of evidence, and may impose any sanction permitted by Fed. R. Civ. P. 37(b), including evidence preclusion, monetary sanctions, attorney fees, unfavorably presumptions, adverse inferences, dismissal, default judgment, and even contempt — and courts often use those sanctions. For example, in Kronisch v. United States, 150 F.3d 112 (2d Cir. 1998), a suit charging the CIA with secretly testing LSD on unsuspecting people in the 1950s, the CIA had destroyed relevant documents. As a sanction, the court permitted the jury to draw an adverse inference against a defendant about what the documents would have proved — and the court denied the defendant’s motion for summary judgment based on the mere possibility that the jury would ultimately draw that adverse inference. “It is a well-established and long-standing principle of law,” the court said, “that a party’s intentional destruction of evidence … can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.” A year later, in West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir. 1999), the district court had dismissed plaintiff’s product liability suit because plaintiff had destroyed a tire crucial to the defense, but the court agreed that sanctions were necessary to protect the defendants from prejudice, and suggested that on remand the district court could “(1) instruct the jury to presume that the exemplar tire was overinflated; (2) instruct the jury to presume that the tire mounting machine and air compressor malfunctioned; and (3) preclude Mrs. West from offering evidence on these issues.” In Telecom International America v. AT&T Corp., 189 F.R.D. 76 (S.D.N.Y. 1999), AT&T had withheld certain records that plaintiff had specifically requested, and AT&T had subsequently destroyed those records. The court ordered an evidentiary hearing to determine an appropriate sanction, which the court suggested might include an adverse inference against AT&T on the key issue in the case. In Barsoum v. New York City Housing Authority, 202 F.R.D. 396 (S.D.N.Y. 2001), where an employment discrimination plaintiff lost a tape of a crucial conversation with her supervisor, the court conditionally sanctioned the plaintiff by precluding her from putting on any evidence at all about the conversation. � “How about five to 10 years in prison?” If your lectures about trial tactics and harsh sanctions for spoliation don’t convince your client, maybe the prospect of five to 10 years in prison will. That is the penalty for obstruction of justice under a trio of federal criminal statutes, 18 U.S.C. �� 1503, 1505, and 1512, that may apply to the destruction of documents. Section 1503(a), the most general federal obstruction of justice provision, punishes anyone who “corruptly … or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” Section 1505, relevant to investigations by federal agencies or by Congress, covers anyone who “corruptly … or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States” or before Congress. Section 1512(b)(2)(B) targets anyone who acts “corruptly” with intent to cause or induce any person to “alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding.” The term “corruptly” in all three statutes has a broad meaning. New York’s federal courts have held for 75 years that “any endeavor to impede and obstruct the due administration of justice in the matter under investigation is corrupt.” Bosselman v. United States, 239 F. 82 (2d Cir. 1917). Thus, you can admonish your clients that destroying documents may be a federal crime punishable by hefty fines and long prison sentences. Moreover, even a failed effort to destroy or conceal documents is a crime, because the “endeavor” element of the offense describes any attempt or effort to obstruct justice, and an individual need not actually succeed in obstructing justice to violate the statute. ( See United States v. Thomas, 916 F.2d 647 [11th Cir. 1990]). CONCLUSION Most clients cooperate with demands for documents, but some clients are scared or stupid, and they may want to shred the evidence of their wrongdoing. It’s your job as a lawyer to talk them out of it. If you can’t talk them out of it, maybe a partner can. If destroying the documents would be a crime, DR 4-101(C)(3) even permits you to report the client’s intention to commit a crime and the information necessary to prevent it. Destroying evidence can destroy a company. Don’t let it happen to your clients. Roy Simon is a professor of law at Hofstra University School of Law in Hempstead, N.Y., where he teaches Lawyers’ Ethics and serves as Director of Hofstra’s Institute for the Study of Legal Ethics.

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