Massive 'Data Spill' in BP Case Could 'Blanket the Gulf of Mexico'

RICHMOND, Va., Sept. 8 /PRNewswire/ -- Literally filling warehouses, the paperwork in the Exxon Valdez case was so daunting it prompted hyperbolic comparisons to the 11 million gallons of oil that spewed from the ship itself into Alaska's Prince William Sound. But thanks largely to the 21st-century imperative for parties to hand over all electronic documents that could prove relevant to a matter in litigation, the discovery challenges involved in the BP/Deepwater Horizon case could make even Exxon Valdez look like child's play, writes LeClairRyan attorney William W. Belt, Jr., in the Aug. 18 issue of Westlaw Journal Environmental.

"In the Exxon Valdez case, Shipmaster Joseph Jeffrey Hazelwood never sent a text message about whether, or how much, he had been drinking prior to the disaster. There was no instant-messaging back-and-forth between Exxon executives expressing concern about the ship's sonar navigation system, or e-mail trail related to the overall safety of the iceberg-choked route," writes the veteran attorney, a shareholder in LeClairRyan and leader of the firm's Richmond, Va.-based Discovery Solutions Practice. "The Third Mate in charge of the Exxon Valdez's wheelhouse never 'tweeted' his friends to complain of fatigue and excessive workload. No spill-cam webcast the oil spilling from the tanker."

Indeed, seemingly hyperbolic analogies scarcely do justice to the amount of data that likely will be involved in litigation over the BP/Deepwater Horizon explosion and spill, wrote Belt, who spent long hours sifting through boxes of documents as a young lawyer working on the Exxon Valdez case. If a gigabyte of data amounts to roughly a pickup truck full of books, for example, and a terabyte adds up to 1,000 such pickup trucks, the BP/Deepwater Horizon case—given its complexity, seriousness and the proliferation of electronic files involved—could cross the mind-bending petabyte threshold, Belt says. "Imagine a vast expanse, perhaps somewhere in the Mojave Desert, in which a million pickup trucks full of books cover a parking lot that stretches as far as the eye can see in all directions," he writes. "That would be a petabyte of data."

In the commentary article, Belt describes how attorneys and investigators will use advanced data-mining techniques—not unlike those used by U.S. intelligence agencies to ferret out terrorism suspects—to sift through this veritable mountain range of data. He sketches out the recent evolution of federal case law related to electronic discovery, such as the now-famous Zubulake v. UBS Warburg case, and highlights the manifold uncertainties that still complicate the field of e-discovery itself.

"In the BP case, the possibility that key players might have gone 'offline' in order to hide information that threatened to expose the company, or themselves, to civil or criminal liability will be far greater," Belt writes. "After all, real-time communications during the agonizingly long spill event were constant and ongoing. They involved a stunning array of public and private officials, experts and stakeholders … Given all of this, the extent to which officials at BP and Transocean took immediate steps to preserve digital information will be under a microscope as the investigations and lawsuits commence."

While digital messages and documents exchanged between BP and one of its subsidiaries would clearly be included, Transocean—a major player in the event as the owner of the oil rig—was, in fact, a contractor. "The exact terms of the contractual relationship between these parties could play a role in determining the limits of e-discovery in the case," Belt writes.

And there are many other gray areas: Under current e-discovery guidelines, for example, companies have an explicit responsibility to preserve digital information that is under their custody and control. But how far must companies go in preserving data that tends to exist only temporarily? Is "going dark" with electronic communications the same as actively shredding printed documents? If there are limits to what constitutes discoverable information, where, exactly, do those limits reside? Do employee internet searches or posts to the likes of Facebook, Twitter and YouTube fall under a court's jurisdiction?

Noting that the last appeals in the Exxon Valdez case—litigation set in motion by an accident that occurred a full 21 years ago—were finally settled in 2009, Belt's article concludes, "Let's say Twitter (or some rough equivalent) still exists 40 years from now. It makes me wonder whether a future attorney will send her friends the following tweet: 'OMG! They just settled the BP case—and it's 2050!' "

About LeClairRyan

Founded in 1988, LeClairRyan provides business counsel and client representation in corporate law and high-stakes litigation. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm's nearly 300 attorneys represent a wide variety of clients throughout the nation.  For more information about LeClairRyan, visit www.leclairryan.com.

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