BP asked U.S. Magistrate Judge Sally Shushan last month to review the e-mails on U.S. policy deliberations during the response to the spill, including efforts to cap the well. BP sought the e-mails to defend against claims over the spill brought by the U.S.
The U.S. objected to turning over the e-mails to BP, telling Shushan they were protected from disclosure by the deliberative-process privilege, which shields government policy discussions from being made public.
“BP’s need for the documents does not outweigh the interest of the U.S. in protecting the deliberative process,” Shushan said in a four-page order today in New Orleans. “BP’s challenges to all 21 documents will be denied.”
The blowout and explosion on the Deepwater Horizon in April 2010 killed 11 workers and set off an oil spill that the government has estimated at more than 4 million barrels. The accident prompted hundreds of lawsuits against BP; Transocean Ltd. (RIG), the Vernier, Switzerland-based owner and operator of the rig; and Halliburton Co. (HAL), which provided cementing services.
The U.S. government sued BP, Transocean and BP’s partners in the well, Mitsui & Co.’s MOEX Offshore 2007 and The Woodlands, Texas-based Anadarko Petroleum Corp. (APC), alleging violations of federal pollution laws. Louisiana and Alabama sued as well. MOEX has settled the federal pollution claims.
BP argued in court papers that it would be hampered in its defense against the U.S. claims if the government was allowed to bar access to the documents on attempts to control the spill.
“Where as here, the United States wishes to recoup large monetary penalties by bringing criticisms of BP’s source control efforts and flow rate estimates, it is simply unfair for the United States, at the same time, to shield from discovery documents that describe BP’s collaboration with the United States,” the company said in a June 8 letter to Shushan.BP said the documents were relevant to its defense against expected claims for Clean Water Act penalties that are partly based on “the nature, extent, and degree of success of any efforts of the violator to minimize or mitigate the effects of the discharge.”
Scott Dean, a spokesman for London-based BP, declined to comment on today’s ruling.
Gregory H. Woods, general counsel for the U.S. Energy Department, categorized the e-mails as policy “deliberations” among top federal officials in three areas: the release of information to the public, the issuance of guidance and directives to BP, and the starting or stopping of “specific response actions during the spill.”
“Disclosure of these documents would chill the open and candid discussion of internal opinions, ideas, and strategies” among federal policy makers, including the Executive Office of the President, during a future incident like the Deepwater Horizon oil spill, Woods said in a court filing June 6.
The case is In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, MDL-2179, U.S. District Court, Eastern District of Louisiana (New Orleans).
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