Kurt Mix, a former engineer for BP plc, was arrested yesterday on charges of intentionally destroying evidence requested by federal criminal authorities investigating the April 20, 2010, Deepwater Horizon disaster. Mix, age 50, of Katy, Texas, was charged with two counts of obstruction of justice in a criminal complaint filed in the Eastern District of Louisiana and unsealed today.

On April 20, 2010, the Deepwater Horizon rig experienced an uncontrolled blowout and related explosions while finishing the Macondo well. The catastrophe killed 11 men on board and resulted in the largest environmental disaster in U.S. history. The spill continued to flow unabated for three months into the Gulf of Mexico before it could be stopped. Since that time, the U.S. government has initiated a task force, based in New Orleans, to investigate the spill.

Until now, most of the legal actions relating to the spill can been seen through civil lawsuits and potential settlements. This new criminal charge sheds some light on the fact that in addition to any civil settlement claims it pursues, the U.S. government is also prepared to institute criminal charges relating to the Deepwater disaster.

According to the press release, Mix was a drilling and completions project engineer for BP. Following the blowout, Mix worked on internal BP efforts to estimate the amount of oil leaking from the well and was involved in various efforts to stop the leak. The efforts included, among others, Top Kill, an attempt to pump heavy mud into the blown out wellhead to try to stop the oil flow. BP sent numerous notices to Mix requiring him to retain all information concerning Macondo, including his text messages.

Mix allegedly deleted on his iPhone a text string containing more than 200 text messages with a BP supervisor after learning that his electronic files were going to be collected. The deleted texts, some of which were recovered forensically, allegedly include sensitive internal BP information collected in real-time as the Top Kill operation was occurring, which indicated that Top Kill was failing. Mix also allegedly deleted a text string containing more than 100 text messages with a BP contractor with whom Mix had worked on various issues concerning how much oil was flowing from the Macondo well after the blowout.

The criminal aspect in this case arises from the timing related to the deleted text messages, and the intent that can be inferred therefrom. During a federal investigation, the destruction of relevant evidence can be construed as an obstruction of justice. Most legal teams in large corporations are aware of this, and therefore send notices to company employees in an effort to preserve records. If an employee deliberately destroys evidence relating to the investigation, it may be interpreted as an intentional effort to obstruct by concealment or destruction.

In Mix’s case, the government’s theory is that he deleted the text messages after receiving preservation notices from the legal teams involved. Therefore, from the government’s perspective, Mix was intentionally trying to conceal and destroy evidence relating to the Deepwater investigation. However, if Mix can prove that he lacked the intent necessary to obstruct, the case may result in his favor.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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