Crowell & Moring

Last week, the Department of Justice announced that Kazuaki Fujitani, a former Denso Corporation executive, agreed to plead guilty to obstruction of justice charges in connection with an Antitrust Division price fixing investigation. Fujitani agreed to serve one year and one day in U.S. prison for destruction and concealment of records and documents under 18 U.S.C. §1512(c)(1), which carries a maximum penalty of 20 years in prison and a criminal fine of $250,000 for individuals.

According to the charge, Fujitani, who was general manager of the Toyota Sales Division at the time of the offense, deleted numerous e-mails and electronic documents in February and March 2010 upon learning that the FBI had executed a search warrant on Denso’s U.S. subsidiary. The DOJ stated that the deleted documents contained communications between Denso and one or more of its competitors regarding requests for price quotation made by Toyota for heater control panels for the Toyota Avalon.

As we have previously noted, obstruction of justice charges are common where a defendant has intentionally deleted electronically stored information in an attempt to thwart a criminal investigation. A defendant’s ability to justify its ESI preservation efforts (or lack thereof) may impact prosecutorial charging decisions, plea negotiations, and Sentencing Guideline calculations, and a defendant’s spoliation of evidence – like Fujitani – may result in a consciousness-of-guilt jury instruction and even criminal obstruction of justice charges.

Associate Katy Linsky also contributed to the content of this blog post; she is not admitted to practice law.