In some ways, the BP/Deepwater Horizon case, resulting from the April 20, 2010, explosion of an oil rig in the Gulf of Mexico, will be similar to the Exxon Valdez case, the disastrous oil spill that occurred in March 1989. The Exxon Valdez case was, up until now, the largest oil spill in United States waters. However, in at least one way, the two cases will be drastically different. While the Valdez case included a vast amount of discovery, mostly in the form of paper, there will be no comparison to the volume of discovery, both paper and electronic, that will be produced in the BP/Deepwater Horizon case.
Electronic evidence includes not only word processing documents and email, but also structured and semistructured databases, collaborative resources, and a variety of communications media, such as voicemail, text messages, instant messages, tweets and webcasts. This case is expected to reach the petabyte (1,000,000,000,000,000 bytes) threshold, and litigants will be forced to rely on methods used in government antiterrorism and counterintelligence efforts to sort through the massive quantity of data. This involves using human intelligence to narrow the search parameters by identifying key players before, during and after the April 20 explosion and leveraging sophisticated search technologies and methods to identify relevant concepts and patterns.
The imperative to preserve and produce potentially relevant documents, whether they exist as numbers on a server or as printed words on a page, is now the indisputable law of the land. For example, California's Civil Discovery Act requires attorneys to pay full attention to digital dimensions of all the cases they try. Amendments to the Federal Rules of Civil Procedure further cemented the place of electronic discovery in American jurisprudence. The recent decision in Pension Committee v. Banc of America Securities, 2010 U.S. Dist. LEXIS 4546 (SDNY Jan. 15, 2010), detailed the activities litigants are required to undertake to preserve electronically stored information, including the necessity of issuing written hold notices when litigation is reasonably anticipated.
As a result of Pension Committee and other recent cases, the steps taken to preserve digital information relevant to the disaster will be scrutinized. BP, like any company involved in litigation, has a responsibility to preserve potentially relevant information in its possession, custody and control. This may include information that would normally exist only temporarily. Although, as explained in Rimkus Consulting v. Cammarata, 2010 U.S. Dist. LEXIS 14573 (SD Tex. Feb. 19, 2010), there are limits as to what constitutes discoverable information and what preservation steps are reasonably required under the applicable circumstances; understanding where those limits reside is of major concern to companies and their lawyers. In a case such as the BP/Deepwater Horizon matter, those limits are likely to be very far