> From: Frederic Grevin <[log in to unmask] <mailto:[log in to unmask]>>
> Subject: Re: RIMdrip: How Does Destroying Fish Compare To Shredding Documents, Legally? : NPR
> 
> 
> Hugh commented "This overly broad reach by the Federal government is a little scary."
> 
> The argument in the Supreme Court proceeding initially focussed on the defendant's claim that "the statute was intended to bar only the destruction of documents and records, not of fish. The federal government counters that the law was passed as a general obstruction of justice statute and bars not just document destruction, but the destruction of any 'tangible object' in 'any' federal investigation." (from the posted NPR article).
> 
> As I understand the NPR article, the Justices then got into several discussions regarding the constitutionality of the statute itself, whether its enforcement could be “arbitrary and discriminatory”, and the possible distinction between "documents and records" and "evidence" (in this case, fish).

While a document can be evidence; not all evidence is a document. The entire purpose of the Sarbanes Oxley legislation and Rule 26 and ESI and several other statutes written to prevent large corporations from destroying documents, computer media and any type of record created which shows the malfeasance of the executive officers and their subcontractors in an effort to defraud stockholders, employees in the pension fund and other financial operations.  This law was not created to catch fisherman with some undersized fish.  ( I do not fish so this is not about my desire to cheat the game warden.)

Game Wardens have authority far beyond a normal police officer.  In this case, was it too much for the Federal inspector to pull out his smartphone and place a ruler next to a few fish and take photos, then snap a photo of the crates filled with fish?  Had they done that, the crates would not have been required.

This is an over reach because it is taking a law meant for one purpose and stretching it into a whole arena it was never intended to be written for.  The end result will be to come back and make the original law ineffective because they are stretching it into areas the Congress and Judges never intended.  Nunc Pro Tunc or “Now for Then” rulings will come into play. The Congress never discussed the use of this law for this purpose.

If we cannot constrain the IRS, the EPA and now these fish wardens, they can use their authority to intrude into areas where they can wield an abuse of power. And as we saw with the IRS, the public and the Congress find it extremely difficult to stop them once they exceed their scope.

The game warden could have worked within their normal procedures but they got lazy.  They could have seized the crates, or had one of their group accompany the fishing vessel back to port.  But extending their reach into a law never intended to manage the activities of fisherman not dealing with financial records or the operations of the corporation. I would bet the inspector had no idea SOX could be used here to punish the fisherman and they dreamed this up back in Legal after the captain outsmarted them.

I was surprised to see how outspoken the Justices were on this case.  They obviously see something more far reaching in the way the government wields power outside its traditional scope then we are seeing.  The government could have arrested this fisherman with many laws in the Game Warden world without employing SOX.  Anything that increases government power beyond the intended scope of the laws as they were intended to be used, is bad for the people.

Judges say corporations need to foresee future litigation that is not on the horizon and react as if this litigation has already arrived.  I think that is an over reach. Could a police officer pull me over for speeding and tell me, “I did not catch you speeding today but I know you were speeding at sometime in the past so I will just write the ticket now.” 


> This is by no measure an “overly broad reach", since there is no question he destroyed the evidence.

And had the warden used the tools they normally use, they could have made the case. There is an intent here that violates Nunc Pro Tunc and if you think you can see how the government might use this new definition of the law to create an abuse of power.

> There was never any request by the Federal government to sentence him to 20 years' imprisonment. The prosecution, following the sentencing guidelines in the U.S. Attorneys' manual, requested a sentence of between 21 to 27 months. The judge ended up giving 30 days, which the prosecution did not appeal.
> 
> You also commented "... where is the government when some of these large records centers are burned down? The fact that these fires are sometimes determined to be arson would indicate there was a vested interest in making certain records disappear. These are the items the SOX laws were meant to protect. Seems to show the government picks and chooses who they want to punish."
> 
> SOX (and similar laws) would apply to the OWNER of the records, not to the owner/operator of the storage facility, so, if the federal government determined that records covered by SOX et al had been destroyed to evade corporate responsibility (and the government would have to prove that), then the Feds would go after the records owner.

Since there are hundreds, thousands of clients in that records center then how do we assess blame to the culpable Owner. Are all of the Owners guilty? 

For example, hundreds of thousands of mammograms are in this records center that burns.These X-rays belong to the patient and; at any time, they can claim their X-ray and take it to another doctor or hospital, but typically the hospital maintains custody for convenience sake.  The hospital chooses the vendor they like; but as we know, bigger fish (no pun intended) buy the little guy. Neither the patient nor the hospital had any control over the new vendor.

Be aware for every 100,000 mammograms for women over 40 years old, that 2400 of these women annually will develop breast cancer.  In the year immediately following the fire, all of the previous baseline years of mammograms are now missing. ( I think we know what happens when you leave a fast spreading cancer to go unchecked for a year.)  The fact that these mammograms are missing has a very negative effect on the radiologist; as they have lost their comparison baseline. This is how they find the cancer and now that means is gone.

Even though the records storage center failed to prevent the arsonist from setting the fire; through enhanced security, and the sprinkler system did not come on because the sprinkler maintenance was not effective and on and on. Would we still consider the hospital or the patient as the owner of the records responsible?  [People die here, people go through major health battles when their records go away. And this happens over and over. Securing a records center is not impossible.  It merely requires a modicum of planning. ]

A party becoming the custodian or caretaker for another entity takes on responsibility to care for those persons, records or valued goods in their care for a period of time.  If you then consider this first party charges for storage and has created hostage fees to prevent the Owner from removing the records, does this create new liability under SOX?  

After all under the Affordable Care Act, the government is paying for many of these medical records to be created.  They might be the Owner? If the government has any business in our healthcare, certainly they have a vested interest in a records center vendor not burning up all the records that could help diagnose the development and spread of cancer.

Or am I over reaching with SOX?

The records are burned up.  Under the Judges ruling about predicting the future, shouldn’t the records center operator considered arson? Especially since arson is the leading cause of fire.

Spoiler alert!  Fred will probably beat me but I want to make him work for it.

> 
> Best regards,
> 
> Fred
> ------------------------------------------------------------------------------------
> Frederic J. Grevin
> [log in to unmask] <mailto:[log in to unmask]> 
> 212-312-3903 (w)



Hugh Smith
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