The federal government on Friday asked a judge to draw unfavorable conclusions from the refusal of three BP employees to testify about the 2010 Gulf of Mexico oil spill, ratcheting up the pressure as the two sides try to negotiate a legal settlement.
The Justice Department has asked U.S. District Judge Carl Barbier of New Orleans to draw what is known as ”adverse inference,” based on the refusal of senior drilling engineer Mark Hafle, drilling engineer Brian Morel, and well site leader Robert Kaluza to provide testimony.
The trio invoked their Fifth Amendment right against self-incrimination when they were called to give depositions in civil litigation involving the spill.
Kaluza’s attorney, Shaun Clarke, declined to comment on the filing. Attorneys for Hafle and Morel did not immediately return calls seeking comment.
None has been charged with a crime, but the government has said it is conducting a criminal investigation into the blowout of BP’s Macondo well, which destroyed the Deepwater Horizon rig, killed 11 workers and spilled 5 million barrels of oil into the Gulf.
“When there are parallel civil and criminal enforcement actions, it is not unusual for witnesses to assert their Fifth Amendments during depositions in the civil case,” said David Uhlmann, a former head of the Justice Department’s environmental-crimes section who now teaches law at the University of Michigan, “When that occurs, the government is entitled to ask the court to allow an adverse inference to be drawn in the civil proceeding.
“You can never hold someone’s invocation of their Fifth Amendment rights against them in a criminal proceeding.”
Sources familiar with the matters told the Houston Chronicle this week that BP and the government have been negotiating intermittently on a possible settlement of government civil allegations.
BP already has spent or committed tens of billions of dollars to clean up damage from the spill and compensate victims, and the total amount it pays could balloon when fines and penalties are factored in.
The company has reached a proposed class action settlement covering individuals and businesses claiming health and economic damages, but that deal doesn’t cover government fines and penalties.
The government’s move could bolster claims made by BP’s partners against the British oil giant. Rig owner Transocean said in its own filing Friday that it also is seeking adverse inferences to be drawn from the men’s refusal to testify.