Today, the U.S. Department of Justice announced the arrest of a former BP engineer, Kurt Mix, on “charges of intentionally destroying evidence requested by federal criminal authorities investigating the April 20, 2010, Deepwater Horizon disaster.”
Mix worked on BP’s efforts to stop the flow of oil at Deepwater Horizon and, according to DOJ, in that work he “generated and had access to BP internal data regarding the amount of oil flowing from the well after the explosions.”
The affidavit of FBI Special Agent Barbara O’Donnell alleges that Mix “deleted numerous electronic records relating to the Deepwater Horizon disaster response, including records concerning the amount of oil potentially flowing from the well, after being repeatedly informed of his obligation to maintain such records and after it became apparent that his electronic records were to be collected by an outside vendor retained by BP’s counsel.”
Agent O’Donnell’s affidavit cites the following language from the first of five Legal Hold Notices BP allegedly sent to Mix:
“Withholding, concealing, altering, falsifying or destroying anything subject to this Legal Hold Order may subject individuals or BP to prosecution or other severe consequences.”
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.