Why Andersen is still a shot across the board...

At this point, I have resisted saying much about Andersen's recent victory in the SCOTUS. This has obviously gotten a lot of press. On a personal note, I had many friends at Andersen -- Houston's office of Andersen, in fact -- when this all went down, and I watched as all of them were forced into the job market very quickly for something that the vast majority of the individuals did not do.

That said, the Motley Fool's: take on this is worth discussing with regard to our issues:

"Andersen may no longer be officially 'guilty,' but its actions were far from innocent. [...] Andersen's own policy mandated that 'in cases of threatened litigation ... no related information will be destroyed.' With Andersen's lawyers warning that investigation and litigation were imminent, anyone with any common sense at all would have known that the decision to fire up the shredders was wrong[.]

And that, Fools, is the real tragedy of this case. Had the government's prosecutors been just a bit less aggressive in fighting to get their preferred language into the jury instructions, had they trusted the jury's innate common sense to add up the facts and come to the correct conclusion, Andersen would probably remain convicted today."

Interesting to focus on the common sense of when to destroy documents. It all boils down to: once you know you need to keep something, you need to keep it. And to think, I don't think that the Motley Fools have read Zubulake V.

In the end, like I often say to young lawyers, it's all in the jury instructions.