I was shocked as I was driving home last Wednesday listening to NPR and heard Nina Totenberg discussing oral arguments before the U.S. Supreme Court that revolved around whether fish should be considered records.

The original case dates back to 2007 when a fisherman’s boat was boarded by a Florida Fish and Wildlife Conservation Commission officer, who found 72 undersized red grouper that had been caught by John L. Yates and his crew.  The officer issued a citation and ordered Yates not to disturb the undersized fish before he returned to shore, but Yates allegedly ordered the crew to throw the undersized fish overboard and replace them with larger fish.  Once the boat arrived at shore, this swap was identified and Yates was charged with destruction and falsification of evidence.  As a result of his 2011 trial, Yates served 30 days in jail.  The U.S. Court of Appeals in the 11th Circuit upheld this decision, and now Yates has appealed his case to the U.S. Supreme Court.

The law at the root of this story is the Sarbanes-Oxley Act of 2002, which was passed in the wake of the Enron scandal.  It amended Chapter 73 of title 18, United States Code to add section 1519 (18 U.S.C. 1519):

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 any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
This section has come to be known as the “anti-shredding provision.”  Although this law seems to have been targeted at the record-keeping shenanigans of the likes of Enron and Arthur Andersen, it was invoked in this case.  So now, in the words of the Oyez Project, the question before the U.S. Supreme Court is:
“Are fish considered ‘tangible objects’ for the purpose of the statute that makes it a crime to destroy or conceal tangible objects to impede a governmental investigation, even though the term is undefined and exists in a statute that largely refers to record-keeping documents?”
Only time will tell whether this case will go down as an example of prosecutorial overreach or will establish a broader definition of what can legally be considered records.  Either way, I don’t want to be the one writing a retention schedule for fish!
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