So the U.S. Supreme Court yesterday shredded the government’s conviction of the Arthur Andersen accounting firm, finding that the trial court erred in its instructions to the jury regarding elements of the intent required to support a finding of obstruction of justice.
When the definitive book on this case is written, we can perhaps learn whether the government erred in its prosecution strategy of making this an obstruction case, or whether Andersen might have survived if it entered a guilty plea instead of taking the case to trial.
Legal Times hazards a guess as to what the case means for companies and their document retention policies. Corporate practitioners who read too much into the opinion probably do so at some risk; most companies resolve such matters far short of trial.
The government still has awesome powers at its disposal regardless of this decision. Its view of how documents relevant to an investigation were handled has to figure into its decisions about prosecution. Additionally, the government frequently demands waiver of the attorney-client privilege.
While 9-0 in your favor is good in baseball, it’s a rather hollow box score this morning for some 30,000 former Andersen employees.