Today the Department of Justice filed the first criminal charges in a Louisiana court related to the devastating oil spill in 2010 involving BP’s Macondo well off the Gulf of Mexico. The named defendant in the case, Kurt Mix, was an engineer employed by BP working on efforts to measure the amount of oil leaking into the Gulf as a result of the spill, as well as on efforts to contain the leakage. Mix is charged with two counts of Obstruction of  Justice. The affidavit and the complaint include contentions that Mix deleted several email and text message exchanges he had with contractors and his superiors at BP. The text messages and email communications contained estimates of oil leakage that far exceeding the amounts provided to the public. Moreover, the messages contained candid discussions regarding the likelihood of success of efforts to cap the well which were overstated in public comments by BP and communications with government officials.

As discussed in detail below, MIX deleted numerous electronic records relating to the Horizon disaster response, including records concerning the amount of oil potentially flowing from the well, 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….

From the Department of Justice’s statement:

On or about Oct. 4, 2010, after Mix learned that his electronic files were to be collected by a vendor working for BP’s lawyers, Mix allegedly deleted on his iPhone a text string containing more than 200 text messages with a BP supervisor.  The deleted texts, some of which were recovered forensically, included sensitive internal BP information collected in real-time as the Top Kill operation was occurring, which indicated that Top Kill was failing.  Court documents allege that, among other things, Mix deleted a text he had sent on the evening of May 26, 2010, at the end of the first day of Top Kill.  In the text, Mix stated, among other things, “Too much flow rate – over 15,000.”  Before Top Kill commenced, Mix and other engineers had concluded internally that Top Kill was unlikely to succeed if the flow rate was greater than 15,000 barrels of oil per day (BOPD).  At the time, BP’s public estimate of the flow rate was 5,000 BOPD – three times lower than the minimum flow rate indicated in Mix’s text.

In addition, on or about Aug. 19, 2011, after learning that his iPhone was about to be imaged by a vendor working for BP’s outside counsel, Mix 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.  By the time Mix deleted those texts, he had received numerous legal hold notices requiring him to preserve such data and had been communicating with a criminal defense lawyer in connection with the pending grand jury investigation of the Deepwater Horizon disaster.

While I am heartened by Eric Holder’s decision to prosecute someone with ties to any of the various criminal conspiracies that have occurred or continued to occur on his watch, I hope this does not close the book on the BP oil spill prosecutions. Mr. Holder has indicated that this complaint represents only the initial charge in an ongoing investigation. I will have to take him at his word. More importantly however, the charge is not related any criminal behavior that may or may not have caused the spill itself, rather it represents elements of the cover-up after the fact. It is an open question as to whether anyone will be charged criminally for any of the decisions that were made that led to the spill, or whether Mr. Mix was acting on instructions from supervisors higher up the chain of command at BP or other entities. It hardly makes sense that Mr. Mix would put his career in jeopardy by deleting electronic communications in which it appears that he is being forthright concerning the spillage amounts and likelihood of success of capping the well during “top kill” efforts in 2010.