On April 20, 2010, the Deepwater Horizon disaster claimed the lives of 11 people and led to a devastating environmental catastrophe in the Gulf of Mexico. After an extensive 3-year investigation following the largest environmental disaster in U.S. history, one would have expected the first criminal charges to relate to the loss of human life or the irreversible damage to the environment.
Rather, on April 24, 2012, the U.S. Attorney General’s office announced that Kurt Mix, a former engineer for BP, had been arrested and charged with intentionally destroying evidence. Mix was a drilling and completions project engineer for BP at the time of the disaster and during various efforts to stop the oil leak. He is accused of two counts of obstruction of justice for allegedly deleting electronic data from his iPhone after he had been put on notice to preserve that data.
By this time, Mix had been communicating with a criminal defense attorney regarding the pending grand jury investigation of the Deepwater Horizon disaster, and he had received numerous legal hold notices requiring him to preserve his data. The standard again will look to determine, based on all facts, whether Mix should have reasonably anticipated litigation at this point.
The lesson of the first BP oil spill case is a simple one: The failure to preserve evidence can have devastating consequences. Litigation hold notices and the duty to preserve electronic evidence are critical responsibilities for in-house counsel. This is due to the fact that electronically stored information is expanding at an astronomical rate, and ESI is easily deleted. It only takes a few clicks to delete the data, and now you, and potentially your company, are liable.