One of the most significant legacies of SOX may be the anti-shredding provision.  See 18 USCS § 1519.  This was an amendment that made it substantially easier for the government to prosecute claims of destruction of evidence, compliments of the alleged document destruction that occurred in connection with Enron.  We have written on this before.

So, in US v. Lessner, 2007 U.S. App. LEXIS 18767 (34d Cir. August 8, 2007), the court of appeals affirmed a criminal conviction of a defendant who, when questioned by a special agent in connection with possible defense procurement fraud, tossed into the trash a current 2002 United States Government Appointment Book. 

The book happened to contain another potential suspect's home address.  For this, she was charged with the destruction of evidence.  At the plea hearing, she made the following statement:  "In my day planner, I had everybody's number and address in there. When I was being walked out, I just threw it in the trash because I knew I was not coming back. I didn't realize that his number was in there either." 

Nonetheless, the court upheld the plea, concluding that it still constituted destruction even though she threw away the appointments book in the presence of the special agent.  As for her contention that she didn't know the suspect's name was in the appointments book, the court had this to say:  

• "Lessner stipulated that DCIS Special Agents advised her she was under investigation and was to remove only personal items from her desk. She falsely denied knowing Watanyar while contemporaneously discarding the appointment book containing his home address. Although she also denied knowing that Watanyar's information was in the book, she had no trouble recalling that "everybody's number and address [was] in there." (J.A. at 59.) From the record before it, the Court could and did find a factual basis for the plea."

The case was unusual in that the defendant was challenging her own plea.  Yet one has to wonder about the use of a provision like this where the information contained in the document was of modest if not slight value, presumably easy to find from other sources, the defendant provided a rational explanation for her behavior that was other than an intent to impede an investigation, and it was done in the presence of agents, without any attempt to rely on secrecy.  Yet, at least according to the Third Circuit, the behavior falls within the anti-shredding provision.