Why the outcome of Yates shouldn’t bring document managers comfort

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You’ve probably come across the story: a commercial fisherman violated a law on what he was allowed to legally catch, and destroyed the evidence of his violation to avoid being charged. But instead of invoking local law and fining him, the feds charged him under the anti-shredding statue of the Sarbanes-Oxley Act.

Supreme Court rules that fish aren’t information storage devices

Since you are reading a blog about documentation, you know that Sarbox has nothing to do with fish, and everything to do with destroying documents that might be evidence of a crime—and the fishing captain’s supposed violation of the anti-shredding statute carried a possible 20 year jail sentence. The case went all the way up to the Supreme Court, where his conviction was finally overturned.

Over-eager prosecutors put us all at risk

Good news? If you’re fishing illegally, maybe so. If you‘re worrying about a possible inadequacy in your documentation, not so much. Because what this case shows clearly is how eager law enforcement is to use this complex, difficult-to-fully-comply-with regulation as widely and flexibly as possible. And that puts any business with inadequate documentation at risk.

If you want more evidence that federal prosecutors like incorporating high-level laws intended for other purposes into more local prosecutions, consider Bond, a case where a woman trying to poison her husband’s lover was charged under the international Chemical Weapons Convention (this Radiolab podcast is a good place to soak up that entire story).

Don’t be tripped up by poor documentation

So, the fish case is funny—certainly the Supreme Court justices seemed to find it so. But, really, it’s just another sign of how much risk poor or inadequate documentation can put you to. It could jeopardize any aspect of your business, because a violation discovered there might be used as leverage elsewhere.

The defendants eventually prevailed in both cases, but for Bond that meant two trips to the Supreme Court, while the fishing captain’s case dragged on for seven years before the high court ended his ordeal. Can your business afford that kind of time and money? It’s far less time-consuming and much less expensive to make sure your documentation is clear, easy to use and compliant.

The message from prosecutors is clear: even if you aren’t fishing illegally, law enforcement can make you show them every fish you’ve ever caught. Make sure you’re ready.

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Monday, 17 December 2018

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