BREAKING NEWS! Spoliation of Evidence (e.g. Text Messages) Leads to the Arrest of a Former BP Engineer
As reported back in late March (see Repurpose Your E-Discovery Process for Effective Regulatory Inquiries), organizations and their employees are being presented with additional e-discovery challenges when responding to regulatory inquiries outside the civil context, like the risk of criminal charges for obstruction of justice. Kurt Mix, former BP engineer, has become the next e-discovery poster child for non-compliance.
Tuesday, Mix was arrested by the Department of Justice (DOJ) for two counts of obstruction of justice on charges of intentionally destroying evidence requested by federal criminal authorities investigating the April 20, 2010, Deepwater Horizon disaster. According to the FBI's affidavit,
“Mix deleted numerous electronic records relating to the Deepwater Horizon disaster response…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."
On April 20, 2010, an oil rig leased by BP, Deepwater Horizon, experienced two giant explosions. A day later, Mix, a BP project engineer, began working to estimate the leaking rate of oil as a result from the explosions. Based on the conduct of BP in its response to the disaster (more on this can be read here), the DOJ launched a criminal investigation into the oil spill.
In accordance with the company's legal obligations, BP sent out a total of five legal holds to Mix, notifying him of his obligation to preserve all records, including instant messages and text messages relevant to the Deepwater Horizon incident. The first hold notice even included a warning to Mix that “withholding, concealing, altering, falsifying, or destroying anything subject to this legal hold order may subject individuals or BP to prosecution or other severe consequences."
According to the FBI's affidavit, Mix deleted his entire text message string with his supervisor, over 200 texts, from his phone just one to two days before they were scheduled to be collected. In addition, two days before a second scheduled data collection, Mix allegedly deleted another 100 text messages.
Even though these are just charges, and in the criminal system everyone is presumed innocent until proven guilty, this is still a strong reminder to custodians that complying with legal holds in relation to government inquiries is essential. This ruling sends a warning shot to all custodians on hold via a government investigation: DON'T DELETE YOUR TEXT MESSAGES (i.e. don't withhold, modify or destroy evidence relevant to a legal proceeding). Doing so can carry significant consequences.
In Mix's case even possible jail time.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.