United States: Yates v. United States: Supreme Court Reins In Sarbanes-Oxley Act’s "Anti-Shredding" Provision

Last Updated: March 11 2015
Article by Joseph Poluka, Michelle Gitlitz Courtney and Martin S. Krezalek

Action Item: The Supreme Court's decision in Yates v. United States will significantly impact how in-house counsel, outside counsel, and compliance officers alike should advise their clients with respect to evidence preservation in the face of a possible investigation or proceeding.

On February 25, 2015, a divided United States Supreme Court narrowly held that a federal criminal law, enacted after the Enron Corporation accounting scandal prohibiting the destruction of corporate records, cannot be used to prosecute a commercial fisherman arrested for tossing undersized grouper back into the ocean to avoid prosecution.  The ruling split the Court's nine Justices widely on the issue of statutory construction with respect to federal laws.  The Court held that 18 U.S.C. §1519, Sarbanes-Oxley's anti-shredding statute, should not be read expansively to create a coverall spoliation of evidence statute.1  Instead, the Court held that a "'tangible object' within §1519's compass [was] one used to record or preserve information."2 In a plurality opinion by Justice Ruth Bader Ginsburg, joined by Chief Justice John G. Roberts, Jr., and Justices Stephen Breyer and Sonia Sotomayor, the Court applied traditional tools and canons of statutory construction to define the meaning of "tangible object."  Justice Samuel A. Alito concurred, providing the requisite fifth vote.  The Court had to engage in some interpretive gymnastics to overcome the simple fact that a fish is a tangible object.3 Justice Elena Kagan penned a blistering dissent citing to Dr. Seuss, a first for the Supreme Court:  "A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term "tangible object" in §1519, as no one here disputes, covers fish (including too-small red grouper)."4

The Court's decision will have a significant impact on how, going forward, in-house counsel, outside counsel, and compliance officers alike should advise their clients (external or internal) with respect to evidence preservation when an investigation or proceeding is contemplated.  The reach of the anti-shredding statute is now definitively limited to objects "used to record or preserve information."  Federal prosecutors also are on notice that they cannot use a broadly worded statute that was enacted to prevent the destruction of paper documents in a criminal investigation to pursue cases that do not involve papers and electronic files, or any other device used to record or store information.

The Implications of Yates v. United States

Limiting "tangible object" to objects used to record or preserve information will bode well for Azamat Tazhayakov and Dias Kadyrbayev, two men awaiting sentencing in Boston federal court for obstructing the investigation of the Boston Marathon bombing.  In April 2013, a few days after the bombing, Tazhayakov and Kadyrbayev removed a laptop and a backpack containing fireworks from bomb suspect Dzhokhar Tsarnaev's dormitory room.6 They kept the laptop and dumped the backpack and its contents into a garbage dumpster. The two were charged under the anti-shredding provision. While Kadyrbayev pled guilty to obstructing the investigation of the bombing, Tazhayakov was convicted following a trial.  Significantly, the jury found Tazhayakov guilty only with respect to the backpack (not the laptop). On November 13, 2014, immediately after the Yates argument, the district court judge presiding over their cases postponed the sentencing until after the Supreme Court ruled in Yates.  Now, it appears clear that the backpack dumped by Tazhayakov and Kadyrbayev is plainly not a "tangible object," and the § 1519 conviction could be overturned and the guilty plea vacated.    

Following the Yates decision, it is now apparent that smart phones, tablets, desktops, and laptops are all "tangible objects" for the purposes of the anti-shredding provision.  Similarly, any data storage device, such as thumb drives, servers, hard drives, external drives, cassettes, CDs, or DVDs, and any other data storage/recording medium, should be considered covered by § 1519.  Although it is less certain whether cameras are covered, it is difficult to distinguish a camera with a memory card or other recording capability from a CD or thumb drive for purposes of the anti-shredding provision.  Thanks to the Yates plurality, however, there is no more uncertainty as to whether non-electronic items that may contain information are covered.  For instance, items of clothing and bags of any sort, including backpacks, briefcases, purses, or messenger bags, are now plainly outside of the statute's compass.

The implications of the Court's decision are significant, and the certainty provided by the Supreme Court is welcome.  Understanding the breadth of § 1519 is vital to providing useful advice on which items need to be preserved pursuant to that statute—and other obstruction-of-justice statutes—in the face of a possible investigation.


1. 18 U.S.C. §1519 provides, "Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter or case, shall be fined under the title, imprisoned not more than 20 years, or both."

2. Yates v. United States, No. 13-7451, 2015 WL 773330, at *12 (U.S. Feb. 25, 2015).

3. Eugene Volokh, "The Volokh Conspiracy: Dr. Seuss comes to the Supreme Court," The Washington Post, February 25, 2015 (available at http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/02/25/dr-seuss-comes-to-the-u-s-supreme-court/ ).

4. Yates, 2015 WL 773330, at *14 (Kagan, J., dissenting).

5. Yates, 2015 WL 773330, at *12.

6. "U.S. judge delays sentencing for Tsarnaev friends over Supreme Court case," Reuters, Nov. 7, 2014 (available at http://www.reuters.com/article/2014/11/07/us-usa-explosion-boston-idUSKBN0IR2AI20141107 ).

7. Patricia Wen, "Jurors convict friend of Tsarnaev," The Boston Globe, July 21, 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Joseph Poluka
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.