Prelimary reports (from the Associated Press and the SCOTUS blog) are that the government's position in the prosecution of Arthur Andersen for obstruction of justice took a real drubbing in the Supreme Court oral argument today. The government argued that a company should preserve documents when there is a "reasonable possibility of an impending inquiry." Note that this is the standard for imposing sanctions for spoliation of evidence, but it's a real stretch to import that standard into the criminal law governing obstruction of justice. My recollection from the last time I looked at these cases is that for document destruction to constitute obstruction of justice, there must be inter alia a pending proceeding, not just a reasonably possible one. In-house lawyer Nancy Temple's e-mail reminding Andersen auditors to comply with the firm's document destruction/retention policy could not constitute obstruction of justice in advance of a formal investigatory proceeding. (When the SEC finally did launch a formal probe, Andersen immediately stopped shredding documents.)
Andersen did a lot of things wrong in its work on various Enron matters, but ironically the act for which it was indicted and convicted was probably not one of them.