BP Plc (BP/) was ordered by a federal judge to give the U.S. government e-mails regarding Gulf of Mexico oil-spill volume estimates prepared with the help of the company’s internal and outside counsel.
BP had sought to prevent disclosure of the documents, contending they were protected by attorney-client privilege. The e-mails discuss preparation of BP’s June 2010 letter to U.S. Representative Edward J. Markey, a Massachusetts Democrat. The letter is connected to BP’s guilty plea to a charge of obstructing Congress’s investigation of the April 2010 spill.
U.S. Magistrate Judge Sally Shushan said she found enough evidence to strip the privilege from a series of e-mails between London-based BP’s lawyers and David Rainey, the company’s former exploration vice president, who has been indicted on charges he deceived the government about the volume of the spill.
“These e-mails reveal significant involvement by Rainey,” Shushan said yesterday in a 42-page ruling issued after she privately reviewed several dozen BP messages. “They contain communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.”
Victims suing BP over damages caused by the worst offshore spill in U.S. history claim the company lied about the volume of the underwater gusher. Those alleged misrepresentations ultimately prolonged the duration of the spill by more than a month, the victims’ lawyers contend in court papers.
The messages were sent on June 22 and 23 in 2010 among Rainey and two lawyers at Wilmer Cutler Pickering Hale & Dorr LLP, BP in-house attorneys and the company’s government-affairs officer, among others, according to the order.
Scott Dean, a BP spokesman, and Wyn Hornbuckle, a Justice department spokesman, declined to comment on Shushan’s order. Molly Nunes, Wilmer Hale’s director of public relations, didn’t immediately return a call or e-mail yesterday seeking comment on the ruling.
Susan Friedman and Tonya Robinson of Wilmer Hale, the Washington D.C.-based law firm that advises BP on spill matters, are named as participants in the spill-volume e-mails in Shushan’s order. BP in-house lawyers Eric Nitcher and Kevin Bailey are also named as participants, as is Elizabeth Reicherts, a BP government affairs officer, and company planning executive Jeff Morgheim.
Rainey, who was charged with two counts of obstruction, has pleaded not guilty and is awaiting trial in September. Rainey’s lawyer, Reid Weingarten, didn’t immediately respond to a request yesterday for comment on the order.
The government has been trying to pry the attorney-assisted spill papers from BP under the so-called crime-fraud exception for months.
“Because BP used its attorneys to aid in its wrongdoing, it can no longer claim privilege with respect to communications related to developing the flow-rate information and communications forming the basis of BP’s false and misleading statements,” the U.S. said in a Jan. 29 filing.
BP has said the company’s guilty plea doesn’t implicate its lawyers in improper conduct.
“Just because a lawyer is part of the process of preparing a report that includes false or fraudulent statements does not mean the attorney’s professional services were rendered in furtherance of fraudulent purposes,” BP’s lawyers said in a Feb. 28 filing. The attorney-client privilege can’t be automatically stripped “every time a lawyer is involved in a process of providing information to the government that might later turn out to be false,” BP said.
The April 20, 2010, oil-well blast killed 11 workers and sent more than 4 million barrels of oil into the gulf, killing fish and waterfowl. The accident sparked hundreds of lawsuits against well owner BP; Vernier, Switzerland-based Transocean Ltd. (RIG), owner of the Deepwater Horizon drilling rig; and Houston- based Halliburton Co. (HAL), which provided cementing services for the well.
BP pleaded guilty to one count of obstruction of Congress as part of an agreement with the U.S. The company also pleaded guilty to 11 counts of felony manslaughter related to the deaths on the Deepwater Horizon.
Testimony in the first phase of a nonjury trial over liability for the spill concluded last month in federal court in New Orleans. U.S. District Judge Carl Barbier, who is presiding over the trial, said he wouldn’t issue an immediate ruling.
In September, Barbier is scheduled to convene a second phase of the trial over the size of the spill and efforts to contain it, which will be used in calculating the potential fine BP faces under the federal Clean Water Act.
The case is In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, 10-md-02179, U.S. District Court, Eastern District of Louisiana (New Orleans).
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