The Frank Quattrone trial proceeds — see this Dow Jones story, or this search in the Yahoo news files. As has been widely reported, Quattrone received a “let’s clean up those files” email and forwarded it to his group at Credit Suisse First Boston. He had recently been told by a CSFB in-house lawyer that the SEC was doing an investigation into some CSFB-related matters. It’s in dispute whether he was told enough to make him realize that his own group should suspend any cleaning out of their files.
The jury will have to decide — more than 3-1/2 years after the fact — whether Quattrone had the intent to obstruct justice when he forwarded the clean-up email to his group. Even if Quattrone is acquitted, his life and career have suffered major disruption, all because of an email.
Basic Documentation-Retention Rules
The basic legal principle is simple, at least in theory: Don’t destroy documents that might be relevant to impending legal action, at least not without consulting counsel.
But, you ask, when is legal action impending enough to trigger this principle? It depends. As the Quattrone case illustrates, if any legal action is impending, and you destroy documents, then the government might suddenly get very interested in you. If the jury gets the wrong impression, you could find yourself taking an extended sabbatical from your life as you know it.
If in any doubt whether you should destroy particular documents, you likely will sleep better if you consult counsel first. The mere fact that you consulted counsel, standing alone, could later help you refute any allegation of criminal intent.
You might want to get written confirmation of what counsel says, even something as simple as an email exchange. That’s a little bit of extra work, but it’s worth it. Months or years later, you, or your counsel, may not remember what transpired. Moreover, it’s widely believed that juries tend to give credence to contemporaneous written documents, possibly more so than to after-the-fact witness testimony.