A judge has ordered BP to turn over to the U.S. government and Transocean some previously withheld documents that involve discussions by its lawyers about how to prepare the company’s responses to investigative inquiries about the amount of oil that was flowing after the 2010 Gulf of Mexico disaster.
BP had argued that documents such as emails and other correspondence prepared by its lawyers to answer Congressional inquiries should be subject to the attorney-client privilege and therefore barred from disclosure to third-parties in the ongoing litigation over the oil spill.
But the Justice Department and Transocean asserted a crime-fraud exception that allows disclosure of such documents in cases where the materials may pertain to the furtherance of a company’s criminal conduct.
The documents could be used during the second phase of a civil trial over the disaster in federal court in New Orleans that is set to begin in September. The proceeding will address the amount of oil that spilled, and findings by a judge could result in billions of dollars in Clean Water Act penalties against BP. The first phase of the trial, which was meant to determine how blame for the disaster should be allocated, wrapped up in mid-April.
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At issue with the documents is BP’s admission to criminal charges that include lying to Congress about the amount of oil that was flowing from its undersea Macondo well after the well blew out 50 miles off the coast of Louisiana, triggering an explosion on the Transocean-owned Deepwater Horizon rig that killed 11 workers. A former BP executive, David Rainey, has been charged with misrepresenting the flow rate in responses to Congress. He has pleaded not guilty and is awaiting trial.
The government sought all documents related to the preparation of BP’s statements to Congress on May 4, 2010, and BP’s correspondence with Congress on May 24, 2010 and June 25, 2010; a May 19, 2010 email from former BP Chief Operating Officer Doug Suttles to Coast Guard Rear Adm. Mary Landry, who has since retired; and documents BP filed with the Securities and Exchange Commission on April 29 and 30 and May 4, 2010. Transocean joined in the request.
According to court records, BP hired several law firms, including WilmerHale and Kirkland & Ellis, shortly after the oil spill to help draft responses to the investigative inquiries.
U.S. Magistrate Judge Sally Shushan said in an order Tuesday that some of the documents being sought by the Justice Department and Transocean must be turned over by May 8. BP has until that day to appeal the order, Shushan said.
In several other instances, she said documents were not subject to disclosure. The U.S. and Transocean have until May 15 to appeal those findings.
BP and the Justice Department declined to comment. A Transocean spokesman said he would need to review the order before commenting.