On April 20th, 2010, the Deepwater Horizon oil platform was rocked by a series of explosions, leading to a blazing inferno that engulfed the oil rig, eventually causing its untimely demise. Two days later, reports indicated signs of a spill, which were confirmed four days after the initial incident.
The ensuing oil spill continued for three months, during which, nearly 5 million barrels of crude oil leaked into the Gulf of Mexico, just 41 miles off the Louisiana coast. Just over two years later, the first arrest was made arising from the events surrounding the Deepwater Horizon oil spill.
On Tuesday, April 24th, 2012, the Department of Justice (DOJ) arrested Kurt Mix, a former British Petroleum (BP) engineer, and charged him with two counts of obstruction of justice. These charges stem from allegations (corroborated by forensic evidence) that Mix deleted over 300 text messages from his phone that paint a much different picture of the severity of the oil spill than was relayed to the media.
A key portion of the texts discuss BP’s efforts to cap the leaking oil well. While the BP public relations team told media outlets their plans to cap the well with injections of heavy drilling fluids (a procedure known as “top kill”) had a 60 to 70 percent chance of working, Mr. Mix’s text messages to his supervisors told a different story. This excerpt, from the DOJ’s press release, should help shed some light on the details:
“The deleted texts, some of which were recovered forensically, included sensitive internal BP information collected in real-time as the Top Kill operation was occurring, which indicated that Top Kill was failing. Court documents allege that, among other things, Mix deleted a text he had sent on the evening of May 26, 2010, at the end of the first day of Top Kill. In the text, Mix stated, among other things, “Too much flowrate – over 15,000.” Before Top Kill commenced, Mix and other engineers had concluded internally that Top Kill was unlikely to succeed if the flow rate was greater than 15,000 barrels of oil per day (BOPD). At the time, BP’s public estimate of the flow rate was 5,000 BOPD – three times lower than the minimum flow rate indicated in Mix’s text.”
Clearly, the information being fed to the public was not the same information communicated internally among engineers and their higher-ups, but Mix’s cover-up of that information gave the DOJ a reason to arrest him.
With more on the DOJ’s case against Mix, and the evidence against him, Gil Ketaltas, an attorney with Baker Hostetler, examined the affidavit of the FBI agent in charge of the investigation, and the DOJ’s press release. Here’s what Mr. Ketaltas had to say on the firm’s blog, Discovery Advocate:
“The affidavit asserts that Mix deleted over 200 texts from his iPhone a day or two before they were to be collected by the outside vendor retained by BP. It also claims that more than 100 text messages were deleted a few days before a second document collection meeting. Agent O’Donnell’s affidavit notes that “[m]ost of these texts . . . have been recovered using forensic tools, but some are still unrecoverable.”
DOJ’s press release reminds us all that “[a] complaint is merely a charge and a defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt.” That said, the complaint and affidavit are strong educational tools for employees who might wonder about the importance of complying with a Litigation Hold – especially one issued in the course of a government investigation.”
The interesting aspect of the case against Mr. Mix’s is that many of the communications deleted from his phone still exist elsewhere, including in e-mails, other text messages, and internal documents. A fact, as reported by Cain Burdeau and Michael Kunzelman of the Assocated Press on The Christian Science Monitor, his attorneys will surely try to bring to light during any legal proceedings to come:
“His attorney, Joan McPhee, issued a statement Tuesday evening describing the charges as misguided and that she is confident Mix will be exonerated.
“The government says he intentionally deleted text messages from his phone, but the content of those messages still resides in thousands of emails, text messages and other documents that he saved,” she said. “Indeed, the emails that Kurt preserved include the very ones highlighted by the government.””
Lawyers, reporters, and other pundits will undoubtedly debate Mix’s obligations to preserve all traces of evidence, but it’s safe to assume federal prosecutors and Mix’s defense team will be doing that shortly. Instead, the more interesting question may be, did Mix stand to gain anything by deleting the text messages?
Chuck Peterson, a lawyer in Boise, Idaho and founder of the Peterson Law Offices, doesn’t see any benefits from Mix’s actions, and he offers up some kindly advice to anyone in a similar situation on his Idaho Criminal Defense Blog:
“Here’s the take away: if someone is investigating you, or your employer, and if you have emails, text messages, notes or other documents, expect that they will be requested by authorities and that you will have to produce those documents. Destroying the evidence in this digital age is virtually impossible and illegal.
And don’t try to destroy the evidence by pressing delete. The documents will still exist on a server somewhere and the government if very good at getting to those copies of your messages.”
As is evident, the arrest of a BP employee in connection with one of the United States’s largest “natural” disasters has garnered a great deal of national attention, but could this incident have far reaching implications in any other case against BP? Daniel Purdom doesn’t seem to think so.
Mr. Purdom, an attorney with Hinshaw & Culberston and author on the firm’s White Collar Crimes & Internal Investigations Blog, believes this is a fairly routine charge:
“This much anticipated “first” charge in the Deepwater Horizon disaster is the kind of criminal charge that veteran prosecutors and defense attorneys would expect in this setting. Although this disaster has devastated lives and has been the subject of political fodder for several years, the reality is that congressional chest thumping aside, people working on oil rigs don’t intentionally try to kill other people. People are outraged and frustrated by what appears to be a perfect storm of screw-ups resulting in devastation to human lives and property. There is tremendous pressure to find the responsible individuals. Unfortunately, in the criminal setting it is very difficult to demonstrate that intentional self-destructive behavior is criminal.”
No matter the outcome, Mr. Mix’s arrest put the events leading up to and following the BP oil spill back into the nation’s consciousness.
While working on this post, I tried to remember where I was and what I was doing when the Deepwater Horizon began to sink, causing a disaster of unprecedented magnitude. When the events of September 11, 2001 unfolded, I was in a high school shop class in Whitehall, Montana. During the first stages of both military operations in Afghanistan and Iraq I was home “sick” watching the news. When U.S. forces caught Saddam Hussein, I was dutifully working paper for an environmental policy course. For whatever reason, placing my whereabouts during the initial stages of the BP oil spill eludes my coffee-addled brain.
The aftermath, however, has stuck with me as the investigative reports on the environmental impact of the spill have begun to pile up. An Al-Jazeera report recently discussed a slew of mutations in shrimp, crab, and fish seen by fishermen along the Louisiana coastline. A post by our own Philip Thomas on his Mississippi Litigation Review & Commentary blog covered the dearth of marine life, and reports of dead fish washing up on the beach.
Those stories have left an indelible impression on me. Perhaps that’s why, even though Kurt Mix is essentially a nobody in the grand scheme of things, and the charges he faces have nothing to do with the underlying incident, my mouth broke into a grin upon hearing a BP engineer faced charges of obstruction of justice. Mix’s arrest may not be a watershed event that will be etched into my memory, but it’s a start.
Read all LXBN has to offer on the BP oil spill and its impact on the Gulf of Mexico.