Yesterday, the first criminal charges in the BP oil spill disaster were unveiled, as the government arrested and charged BP engineer Kurt Mix with obstruction of justice.  What was the crime charged?  The government charged Mix with obstruction of justice based on Mix allegedly deleting text messages from his iPhone.  In other words, the first criminal case in the BP disaster had to do with spoliation of electronically stored information (ESI) gathered in connection with the follow-on investigation, rather than negligence for spilling the oil in the first place.  The criminal complaint filed in the case and a supporting affidavit lay out the charges pending in the U.S. District Court for the Eastern District of Louisiana.

According to the affidavit, Mix received six legal hold notices, presumably from BP.  In addition, BP's outside counsel hired a vendor to collect ESI in connection with the spill.  The affidavit then said that Mix deleted text messages from his iPhone in October 2010 and in August 2011.  The texts allegedly were with Mix's supervisor and, among other things, contained Mix's opinion that the oil leakage rate was too high for the initial "Top Kill" method of plugging the leak.  Mix's text contradicted BP's then current-statements that oil leakage was low enough for Top Kill to work. 

In both October 2010 and August 2011, according to the government, Mix deleted messages shortly before BP's vendor was to collect ESI from him.  In other words, if the affidavit is true, Mix, knowing that he was going to have to disclose ESI in a short time, deleted ESI before it could be collected. 

I emphasize that the criminal complaint merely charges Mix with criminal conduct and he is presumed innocent until proven guilty. 

Nonetheless, I see a number of take-aways, assuming the charges are true.  First, people need to educated with a little more information about how they will get caught if they try to delete ESI just before they are to turn over devices for imaging.  The pattern of deleting information just before imaging is surprisingly common.  People should realize that if they send a message, they could delete a message on their own device, but the recipient has another copy.  So deleting the message from your own device cannot effectively hide it.  In addition, a forensic collection of your device will often reveal deleted files and any software installed to accomplish any wiping operation.  People should realize that deleting and/or installing wiping programs will be revealed in the collection, so there is no point in trying, even aside from the obligation to comply.

Second, people should realize that government collections take ediscovery or investigatory ESI requests to a whole new level of seriousness.  This is not a routine civil case.  The consequence for Mix of supposedly violating a legal hold is not simply a court-imposed sanction, but criminal charges. 

Finally, as is often the case, the cover-up often leads to more severe consequences than the acts themselves.  It remains to be seen whether BP itself encouraged any deletion of ESI, but at least Mix put himself in a position to be charged by allegedly deleting information.  People in Mix's position can best minimize legal risk by avoiding even the appearance of wrongdoing. 

Stephen Wu

Partner, Cooke Kobrick & Wu LLP