The Deepwater Horizon oil spill case is scheduled for non-jury trial in New Orleans on February 27, 2012. In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, (E.D.La., MDL No. 2179). This mammoth case is a consolidation of 300 law suits involving 120,000 people and businesses. Click here to see the full docket on Justia. The biggest case in the country proves, once again, that email is powerful evidence. You may recall news concerning email and the world’s largest oil spill back in 2010 when Congress publicized an email from a BP drilling engineer, Brian Morel. It warned that the Deepwater Horizon oil rig was a “nightmare well” that had caused the company problems in the past. Of course, there were more emails like this, but they did not all get into evidence as this blog will explain.
Here is how the presiding Judge Carl Barbier describes the In re: Oil Spill by the Oil Rig “Deepwater Horizon” case in a recent Order:
This Multi-district Litigation (“MDL”) arises from the April 20, 2010 explosion and fire on the DEEPWATER HORIZON mobile offshore drilling unit (“MODU”), and the subsequent discharge of millions of gallons of oil into the Gulf of Mexico. The consolidated cases include claims for the death of eleven individuals, numerous claims for personal injury, and various claims for environmental and economic damages.
Order dated January 26, 2010, Granting in Part and Denying in Part Transocean’s and BP’s Cross-Motions for Partial Summary Judgment Regarding Contractual Indemnity
The purpose of the upcoming trail is to assign and apportion blame among the many defendants sued in these cases. The main corporate defendants include BP, rig owner Transocean, and Halliburton, which provided cementing services. As a side note, BP recently accused Halliburton of spoliation by intentional destruction of computer records and has, of course, moved for sanctions. Anadarko Petroleum, one of BP’s partners in the well, is also involved in the upcoming trial. Plaintiffs include individuals and businesses, represented by a plaintiffs’ steering committee, as well as many states and the U.S. government.
Smoking Gun Emails
Emails will certainly be part of the 7±2 documents that the trial lawyers of all parties will build their arguments around. See: Secrets of Search, Part III. In addition to the “nightmare well” email that will be the centerpiece of every attorney’s opening statement, except for BP, many other emails were found that will be featured as evidence. Three smoking gun type emails were subject to a motion in limine to try to have them excluded.
One of the emails subject to the motion to exclude was a pre-accident 2009 email where an Anadarko employee expressed disappointment about BP. He complained that BP had not disclosed some information related to tropical storm damage caused to a different Transocean rig. Another Anadarko employee responded with an email saying: “Bummer. I’m amazed that they did not tell us about this.” Bummer and amazing make great touch stones for attorney arguments about cover-up and fault. This is just the kind of email you need to build a persuasive pitch to pass all blame to BP. Mix in the nightmare well, and you have a real bummer for BP’s attempt to share the blame with other defendants.
But wait, there’s more. They also found a June 2010 email from a Halliburton employee, Ryan Haire, which questioned the company’s reported findings regarding some tests on the well.
But wait, there’s still more. They also found an February 2010 email from a BP geologist to a friend referring to the Deepwater Horizon rig and saying: “thanks for the shitty cement job.” Oh, this is a particularly good one for lawyers because of the colorful language.
These emails could be used to argue cover-up and negligence, despite what the witnesses later say under oath. Trial lawyers could now say it was a shitty nightmare well that BP knew was an amazing bummer. Powerful stuff, especially with a jury who might later hear damage claims. BP knew that it had to try to keep out these three emails, so they made an all-out effort with a motion in limine (one of dozens).
Just because you discover email, and it’s hot, and would be part of anyone’s 7±2, does not mean that the email will actually be considered. Never forget that the whole purpose of e-discovery is not just to find evidence, it is to get it admitted at trial. If it does not get into the record, it cannot be part of the 7±2 based argument. All three of the emails quoted above have been excluded from evidence by a February 8, 2012, Order of U.S. Magistrate Judge Sally Shushan.
Judge Shushan excluded the first two emails on the basis of hearsay. The author of one of the emails, Ryan Hair, testified that he really had no first hand knowledge of the test findings that his email criticized. It was just what someone else had told him. Hearsay objection sustained.
As to “thanks for the shitty cement job” email, it was excluded on even more interesting grounds. According to news reports, Halliburton argued that the email was no more than a casual, tasteless joke made by one friend to another. Judge Shushan agreed. She concluded that there was no showing that the email was a “business record” of the cement work that could be used as a basis to introduce the email into evidence. Judge Shusan explained:
It must be demonstrated that the e-mail at issue was not sent or received casually, nor was its creation a mere isolated incident.
Hmm. You have to prove that the email was not casual? I guess this shows the “just kidding” objection sometimes works and can be used in a last-ditch attempt to exclude email. Usually that kind of “didn’t really mean it” argument does not work. The email will be allowed into evidence, but you can provide other testimony that it was just a joke, and let the trier of fact determine the truth. The problem is, most juries lack a sense of humor, especially when people are killed and the lives and business of thousands of people are ruined. So I can see why BP did not want to go that route.
Defense counsel here must have made a very compelling argument, probably concerning unfair prejudice. I suspect their argument also relied upon contextual email and other emails between these friends showing that is how these boys actually talked to each other. Real jokers, and tasteless ones at that, as BP smartly admitted.
Yes, it is amazing what people say in electronic communications like email, not to mention text messages, private Facebook posts, and the like. Email remains king, as the Deepwater case shows, but so to do evidentiary objections. Also see LTN article on Google’s recent attempts to exclude emails on the basis of privilege in its billion dollar patent suit against Oracle. Here is the Sixth Circuit Court of Appeals Order denying Google’s Petition for Writ of Mandamus.
Lorraine v. Markel
Everybody should know Judge Paul Grimm’s Lorraine opinion, and should study it again before they go to trial. Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.Md. 2007). It is the best treatise on rules of evidence governing ESI. Who knows, you just might be able to devise an argument to keep an email out of evidence that would otherwise sink your ship.
Consider Judge’s Grimm’s summary at page nine of the one-hundred-and-one page decision in Lorraine of the kind of evidentiary issues that you should consider:
Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance.
Email and other electronic evidence, including video, are powerful forces in court rooms today. But just because you discovered relevant ESI, does not mean you will be able to use it or show it to the jury. It might, for instance, not be authentic, as some claim about this genuinely hilarious video.
The ninth step in the EDRM model, Presentation, is the home of complex, sometimes arcane evidence rules and unexpected rulings. The recent order by Judge Shushan in the largest case in the country shows that these evidentiary considerations and arguments are an essential part of e-discovery practice.
Objections to admissibility can come at you from many directions. For instance, in another order in the Deepwater case, Judge Shushan denied an objection to other email based on spousal privilege. She held that the email was not covered by this privilege because a husband had no reasonable expectation of privacy in emails sent to his wife from his work computer. See EvidenceProf Blog.
You neglect evidentiary analysis at your peril. Be prepared and do not be surprised when you hear some new outbursts at trial when you move to admit email into evidence, such as:
Defense Counsel: Objection your honor. Counsel has not proven that this e-mail was not sent or received casually, nor that its creation was just a mere isolated incident.
Plaintiff’s Counsel: But your honor, the witness testified that he was wearing a tuxedo when he sent this email. That proves it was not sent casually. Further, it could not have been isolated because our deduplication software found five copies of this email.
Get ready for some interesting appeals too.
And this is a prime example of why the everyday Joe doesn’t trust lawyers and the courts when big companies are involved.
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One more reason, in my opinion, that “eDiscovery” should be thought of as “discovery.”
The section of Judge Grimm’s Lorraine decision that you quote isn’t a primer on ESI, it’s a primer on evidence generally. The same exact flow chart gets any document into evidence.