eDiscovery: Deepwater discovery tips

Sometimes life deals strange hands. Just when we feel that we have the problem in sight and under control, we are blindsided with something totally "out of left field" that we did not expect. So, the BP oil spill disaster case generated the first criminal prosecution in the tragic circumstances where spoliation of electronically stored information (ESI) gathered in connection with the follow-on investigation was the subject, rather than negligence for spilling the oil in the first place. United State of America v. Kurt E. Mix (Magistrate No. 12-47-MAG).

The alleged violation. Two counts of obstruction of justice allege that Mix "did corruptly alter, destroy, mutilate, or conceal a record, document, or other object, or attempted to do so, with the intent to impair the object's integrity or availability for use in an official proceeding in the Eastern District of Louisiana, in violation of Title 18, United States Code, Section 1512 (c)(1)."

The alleged facts. The Deepwater Horizon Task Force is investigating "potential criminal activity" resulting from the April 20, 2010, Macondo well oil spill explosions that killed eleven men, which was the "largest oil spill" in the history of this country. Part of the investigation concerns whether BP or any of its employees "violated any federal criminal laws by intentionally understating the amount of oil that was flowing from the Macondo well following the April 20, 2010 explosions."

According to the FBI allegations, Mix was a BP drilling and completion project engineer who resigned from BP early this year. After the well explosions he is said to have "worked within BP on a number of efforts to stop the flow of oil, including the unsuccessful Top Kill effort in May 2010." Consequently, Mix is alleged to have "generated and had access to BPO internal data regarding the amount of oil following from the well after the explosions." He purportedly deleted these "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 to collect electronic documents." The legal hold notice specifically alerted him that he had the "obligation to preserve instant and text messaging documents." It also notified him that if he withheld, concealed, altered, falsified or destroyed "anything subject" to the legal hold order that could subject him or BP to "prosecution or other severe consequences."

In all, Mix received a total of six legal hold notices emphasizing that "instant messages and text messages needed to be preserved." One such text from Mix to his supervisor that Mix deleted stated: "Too much flowrate - over 15,000 and too large an orifice. Pumped over 12,800 bbl of mud today plus 5 separate bridging pills. Tired. Going home and getting ready for round three tomorrow." Over 100 text messages on Mix's iPhone, between Mix and the outside contractor with whom he was working on the spill response, were deleted. His problem was that his iPhone left a trail that was discovered when the FBI got the instrument and had it imaged.

Criminal charges for the eDiscovery cover up. It has been reported that Mix's alleged crime was the wiping of approximately 200 text messages from his iPhone that were relevant to the investigation after he was put on notice that his ESI would be collected. Today, his status has been elevated from key witness to potential felon. According to some reports, Mix could face as many as 20 years in prison.

Civil sanctions as precedent. Earlier (Oct. 30, 2007), on similar facts, U.S. Bankruptcy Judge Robert J. Faris ordered civil sanctions in favor of plaintiff Hawaiian Airlines, Inc. against defendant Mesa Air Group, Inc. In Re Hawaiian Airlines, Inc., Debtor. Hawaiian Airlines, Inc., Plaintiff, v. Mesa Air Group, Inc., Defendant, Slip Copy, 2007 WL 3172642 (Bkrtcy.D.Hawai'i). There, the court found that "one of Mesa's top officers deliberately destroyed electronic evidence that Mesa had a duty to preserve." The court noted that such misconduct was unfair to Hawaiian because it would make it harder for Hawaiian to prove certain parts of its case. The court was clear in noting that "it makes common sense to assume that the destroyed evidence was unfavorable to Mesa." Hawaiian was the beneficiary of a court ruling that made findings of fact in its favor on a portion of the major issues in the case.

While this litigation was pending, Mesa's executive vice president and chief financial officer (who also was one of its top two or three officers) used a computer program to render unrecoverable deleted files on his two laptop computers. The evidence also showed that he changed the system clocks on the laptops "in an attempt to make it appear that he had destroyed the deleted files before Hawaiian filed its complaint." The court concluded that, by doing so, he "successfully destroyed any relevant evidence that might have been in the unallocated space of the hard drives" on the laptops. Thus he "unsuccessfully attempted to conceal the fact that he had done so ... [which] resulted in destruction of evidence [that] was intentional, deliberate, willful, and in bad faith ... [and such] data wiping activities occurred in close proximity to important events in this case."

This was notwithstanding that the day after Hawaiian filed its complaint against Mesa, one of Mesa's attorneys "sent an email to Mesa's three top officers instructing them to 'preserve any and all documents that may be related to the matters set forth in the Complaint including emails, electronic documents, notes, models etc.'" The judge concluded that Mesa was guilty of spoliation of evidence, and that such intentional destruction of evidence relevant to proof of an issue at trial did support an inference "'that the evidence would have been unfavorable to the party responsible for its destruction.'"

Message of U.S. v. Mix. Remember to take smart phone and other personal mobile device images in every case as part of eDiscovery, not just relying on extracting their active messages and history. The list of personal instruments is long, so be careful to include all that may apply in your case. On the other hand, responding companies need to act early to assess the risk of employee use of personal mobile devices, present and future, and sources in the "cloud." And keep in mind, at your peril, that potential felonies have now joined possible sanctions as the penalty for spoliation. Welcome to the world of advancing technology, including the annual onslaught of newly inspired mobile devices.