SOX and the Anti-Shredding Provision

In addition to improving the corporate governance of public companies, SOX also contained a grab bag of additional provisions.  Section 802 amended the existing provision on obstruction of justice contained in 18 U.S.C. §1519.  Labeled the anti-shredding provision, Section 802 clarified that obstruction charges could be brought for document destruction even before an investigation had begun.  

The government has begun to make aggressive use of the provision.  The government has initiated a case against a lawyer who allegedly destroyed a computer that contained evidence in a case despite being unaware that an investigation had begun.  A short article on the case and its implications was written by W. Warren Hamel and Lowell M. Rothschild, two lawyers at Venable.  A copy can be found here.