Daniel Schueppert, MJLST Staff
With the recent celebration of Mardi Gras not long past, Louisiana and other southern coastal states are once again making national news. Meanwhile, in the background of these festivities, lawyers and the courts are toiling away at ongoing litigation arising from the Deep Water Horizon oil spill: a spill that began almost four years ago, lasted at least eighty-seven days, and caused the deaths of eleven people.
In 2012 Daniel Farber published an article titled The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast in vol. 13 of the Minnesota Journal of Law, Science & Technology. In his article, Professor Farber analyzed the pre-spill, post-spill, and anticipated condition of the oil-affected coastal states. Many of the issues identified in his paper continue to be troubling in light of the disruption caused by the oil spill. In addition to the environmental and regulatory issues that face these states, the Eastern District of Louisiana is embroiled in a prolonged legal battle related to destruction of digital evidence that might have made a difference before or during the well blowout.
Kurt Mix was a drilling engineer for BP assigned to the Deep Water Horizon at the time of the blowout off the coast of Louisiana in April, 2010. In the course of his work, Mix had access to, and a degree of control over the production of, internal BP data about the rate and amount of oil flowing out of the damaged Macondo Prospect well upon which the Deep Water Horizon was sited. BP publicly issued statements that the well had a flow rate at the time of about 5,000 barrels daily, but during the same period, BP and Mix’s team allegedly knew that the rate was closer to 64,000 to 146,000 barrels per day, according the government’s related complaint against BP directly.
In May, 2012 “Mix was charged by the United States in a two count indictment with obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). . . . based on his allegedly deleting certain iPhone texts to BP’s then-Drilling Engineering Manager . . . .” for the region and a third party contractor who was assisting with the spill and blowout response. U.S. v. Mix, 12-171, 2012 WL 2420016 (E.D. La. 2012). Mix was found guilty on this obstruction charge despite having previously released that information to U.S. government representatives, and according to a Forbes article, Mix’s disclosures were a primary source comprising the basis of the government’s claims against BP. He is the only natural person to have had claims related to the oil spill stick. The content of the texts themselves have so far not been recovered despite his conviction, which raises questions about the procedural management and prosecutorial discretion used in this collection of cases related to the Deep Water Horizon blowout. Following Mix’s conviction, there has been a procedural dance of more than twenty actions between the United States and Mix, touching on issues of attorney privilege, judicial conflicts of interest, criminal and civil procedure, and proportional liability for allegations based on extinct digital evidence.