When Mix Messed with the Messages – Are Litigation Hold Letters Enough?
Yesterday, federal prosecutors charged Kurt Mix, a former engineer for BP PLC, with violating Title 18 U.S.C. Section 1512(c)(1) – Obstruction of Justice – when he deleted text messages relevant to the Deepwater Horizon oil spill in the Gulf of Mexico.
Mr. Mix was involved with modeling the potential flow rate of oil leaking from the well. On or about April 22, 2010, two days after the explosion, Mix received his first Legal Hold Notice (LHN). The LHN alerted him to retain all records relevant to the disaster and response efforts. The LHN expressly included the obligation to preserve text messages and advised that failure to comply could lead to prosecution. Over the following two months, five additional LHN’s were sent to Mix.
During the next several months Mix exchanged texts with others about the flow rate and potential success of response efforts. On September 22, 2010 Mix received notice from a vendor, retained by BP’s counsel, that they needed electronic records from Mix. On September 27, 2010 the vendor retrieved some relevant hard copy documents from Mix. On October 4th or 5th Mix deleted an entire string of over 200 texts about the spill rate and response effort. On October 5, 2010 the vendor was unsuccessful in its attempt to collect Mix’s electronic texts. In August 2011 Mix again deleted text messages after being contacted by the vendor about the need to collect information from his PDA.
This case highlights the need for persistent and effective legal hold efforts after a liability creating incident. Those efforts must include vigilant oversight of employee awareness and compliance with legal hold obligations. Consistent and thorough reviews by counsel of vendor efforts to collect data can flag potential issues before information is destroyed. Efficient and effective legal hold efforts can alleviate the risk of spoliation and potential adverse inference charges when civil claims arise.
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