The amount of data that is implicated in e-discovery is growing exponentially and as a result, the complexity of the process is growing as well. This process is complicated not only by technical difficulties, but also by intentional spoliation of evidence by rogue actors pursuing a shield from liability. Companies may attempt to avoid criminal liability from spoliation of evidence, but developing a policy that strikes the necessarily delicate legal balance is often difficult.
Halliburton Energy Services (HESI) seems to be on the right track with their ‘legal hold’ policy. This policy helped Halliburton energies, one of the world’s largest oilfield service companies, escape with a fine of only $200,000 (the maximum under statute) for destruction of a computer simulation that may have showed it performed inadequate cement work on the Deepwater Horizon oil rig. This fine is minimal compared to the fine the other two major parties implicated in the 2010 Deepwater Horizon explosion, BP and Transocean, received ($4 billion and $400 million respectively). This fine was the result of a plea agreement that Halliburton entered into based on criminal charges leveled against them by the U.S. Department of Justice. Why such a disparity? According to the plea agreement:
HESI has provided full, truthful, substantial and valuable cooperation during the Deepwater Horizon Task Force’s investigation of the events at Macondo. HESI’s cooperation was forthright, extensive and ongoing since the outset of the investigation. Counsel for HESI contacted the Task Force within days of its formation and provided continuous and meaningful cooperation. Overall, it is the Task Force’s view that HESI’s cooperation was exceptional.
This cooperation included Halliburton’s “self-reporting of the misconduct, substantial and valuable cooperation in the government’s investigation, and substantial efforts to recover the deleted data” according to a U.S. District Judge in the Eastern District of Louisiana, Jane Triche-Milazzo. The fall-out from the from the Deepwater Horizon oil spill is far from over but Halliburton’s “legal hold” policy has ensured that, at least with respect to this instance of spoliation, it is almost over for them.