e-Tips & Traps: Recovery of destroyed evidence in BP-Halliburton oil explosion

By Bill Murray
With Andy Thibault

Ricky Lynn Morgan, a cement expert for Halliburton, was surrounded by high-powered lawyers representing more than half a dozen companies, the U.S. Justice Department and the state of Louisiana. The conference room on the 11th floor of the Pan-American building where they met on Oct. 17, 2011, is a short stroll from the New Orleans Superdome.

The legal fees generated that day would make a nice down payment for a house. The result of Ricky Lynn Morgan’s deposition could amount to billions of dollars.

At issue is the quality of cement used to seal BP’s well, which exploded off the Louisiana coast in April 2010, killing 11 workers and spewing about five million barrels of crude oil into the Gulf of Mexico. BP is fighting Halliburton and contractors including the rig owner, Transocean, over liability for some of the damages. This case is known as Oil Spill By The Oil Rig Deepwater Horizon In The Gulf Of Mexico On April 20, 2010. Presiding for the Eastern District of Louisiana is U.S. Judge Carl Barbier.

Morgan’s deposition is significant because it is cited in BP’s claim – filed in a 310-page motion on Monday, Dec. 5, 2011 – that Halliburton intentionally destroyed evidence in violation of Barbier’s order regarding the production of documents.

The official cause of the accident, according to a U.S. government report published in September 2011, was related to a defective cement job.

BP is seeking an adverse finding of fact by the judge, which could swing the trial in BP’s favor. Trial is scheduled for February 2011. BP has also asked the judge to order Halliburton to deliver a computer used to produce 3D modeling results to an independent forensic firm.

Halliburton said in a statement that the cement evidence cited by BP has “little or no relevance to the case.” Halliburton also has a number of claims against BP, including fraud.

Under questioning by BP lawyers, Morgan said he was asked after the explosion by a supervisor to analyze a cement mix like the one used off the Gulf Coast. Morgan acknowledged the results were noteworthy in that the mixture was thinner than normal, but he made no written record: “I didn’t want to put anything on an e-mail that could be twisted, and turned …”

Among the follow-up questions to Morgan: “And you mentioned the reason that you didn’t document the test and you threw out the sample was because you were worried about it being misinterpreted in the litigation?” To which Morgan responded: “Yes, that’s part of the reason …”

In another deposition – on March 21, 2011 – Halliburton area lab manager Timmy Leo Quirk said he was also asked to perform tests on a cement mixture shortly after the fatal explosion. In what Quirk characterized as an unusual procedure, he testified a supervisor told him not to write a report. “He instructed me, that’s right, he did – he did not want a report.” Quirk testified he discarded cement from the test and “got rid” of handwritten notes. Curiously, Quirk also testified the results of that test “actually looked pretty decent.”

We believe a competent electronic forensic firm probably could recover the missing 3D images or modeling results. There is a possibility, if not a likelihood that the model or models were shared and viewed by more than one person. Screen captures of the model or models and other related data might be stored in any number of places.

Judge Barbier will have to decide whether these particular cement tests are relevant. However, the prospect of a potential adverse finding of fact based on missing or destroyed evidence is of enormous significance.

Wall Street executive Laura Zubulake won a $29 million sexual discrimination verdict after Judge Shira Scheindlin issued a landmark ruling punishing UBS Warburg for destroying documents. UBS threatened an appeal and the case was settled for an undisclosed amount.

Scheindlin, co-author of Electronic Discovery and Digital Evidence In A Nutshell, published in 2009, issued a stern reminder about protecting evidence in an unrelated case just last year: “By now, it should be abundantly clear that the duty to preserve means what is says and that a failure to preserve records – paper or electronic – and to search in the right places for those records – will inevitably result in the spoliation [illegal destruction] of evidence.”

A colleague likened the BP V. Halliburton battle to the corporate equivalent of the World War II Battle of Stalingrad, in which there were more than a million casualties.

Environmental experts are still tabulating the death toll for fish and animals in the millions, as well as widespread destruction of the habitat. For now, as the corporate giants fight over who messed up the cement, out of respect we list those who died on April 20, 2010: Jason Anderson, Aaron Dale Burkeen, Donald Clark, Stephen Curtis, Roy Wyatt Kemp, Karl Kleppinger, Gordon Jones, Blair Manuel, Dewey Revette, Shane Roshto and Adam Weise.

With so much money at stake in a battle among international behemoths, we can only imagine the depth of gamesmanship reflected not only in the court motions, but also in the behind-the scenes strategies and activities of various consultants and operatives.

Bill Murray is president of EdocMasters LLC, a company that takes the mystery out of e-documentation for the legal industry.

Andy Thibault, author of books including Law & Justice In Everyday Life, blogs at The Cool Justice Report, http://cooljustice.blogspot.com/

Published in Register Citizen 12/11/2011

http://www.registercitizen.com/articles/2011/12/11/opinion/doc4ee444a09df56864310711.txt

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