Last Tuesday, April 24, the first criminal charges were quietly filed in connection with the 2010 Gulf of Mexico oil spill. Kurt Mix, a former engineer for British Petroleum (BP), was arrested and charged with two counts of obstruction of justice. On Thursday, May 3rd, Mix pleaded not guilty to the crimes. Unfortunately, this arrest does little to help those whose lives and businesses were forever changed after the catastrophe.
Mix was assigned to the Top Kill effort, a procedure designed to eliminate the flow of oil from the leaking well in the Gulf. Mix’s alleged duties include monitoring the flow of oil from the well. In the last week of April 2010, Mix’s text messaged oil flow-rate estimates to his supervisor. These estimates allegedly ranged from 64,000 barrels per day (BPD) to 138,000 BPD. At this same time, Mix gave estimates to a contractor assisting in the response effort ranging from 8,600 BPD to 69,500 BPD.
On May 18, 2010, Mix allegedly presented additional estimates to his supervisor ranging from 1,000 BPD to 146,000 BPD. When assessing Top Kill’s viability in a meeting, Mix, his supervisor, and BP scientists concluded that Top Kill could be successful if the well was flowing oil at a rate of around 5,000 BPD. They also determined that if the oil flowed at a rate higher than 15,000 BPD, Top Kill would likely fail. BP decided to commence the Top Kill effort on May 26th.
BP’s public estimate at this time was that the well was leaking at a rate of 5,000 BPD — even though at only one time did Mix estimate that that the spill was less than 5,000 BPD. Top Kill was publicly given a sixty to seventy percent chance of success. At the end of the first day of the Top Kill effort, Mix allegedly sent a text message to his supervisor that read in part: “[t]oo much flowrate – over 15,000 and too large an orifice.” This text message was allegedly deleted.
At this same time, BP was publicly stating that Top Kill was going according to plan. On May 29th, BP announced that the Top Kill effort was a failure, and that it was discontinuing the program.
In early 2010, the Department of Justice and the Securities Exchange Commission began a criminal investigation into the BP oil spill. BP’s outside counsel contacted Mix in September 2010 in order to “collect all electronic data” relating to the oil spill. Mix met with the outside counsel and allegedly gave them hardcopy documents. On October 4th or 5th, Mix allegedly deleted over two hundred text messages between him, his supervisor, and the outside contractor. Investigators were able to recover some, but not all of the deleted messages.
It is worth noting that from April 2010 to June 2010, Mix received six Legal Hold Notices, all notifying him of his legal obligation to retain all records relevant to the oil spill, and explicitly referenced text and instant messages as records to preserve.
The specific offense with which Mix is charged is codified at 18 U.S.C. 1521(c)(1), and reads as follows: “[w]hoever corruptly alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding shall be fine and punished . . . .” As Mix was alerted to potential official proceedings several times before allegedly deleting the text messages, the Department of Justice argues that the deletions were made “corruptly” and with the intent to impair the object’s availability “for use in an official proceeding.”
A copy of the complaint can be accessed here.
Ryan WeirBlogger, Criminal Law Brief