eDiscovery: Litigation and the BP's Gulf Deepwater Disaster

On April 20th an explosion of a BP deepwater drilling rig 40 miles offshore Louisiana was the start of what is shaping up to be the largest environmental disaster ever in U.S history.  Upwards of 1000 barrels of oil have been spilled every day.  More than a month later, the oil is still flowing and the litigation around damage resulting from the disaster is beginning to gush too.    As of last Friday there were 117 federal suits that had been filed against BP from across Texas to Florida.   Those filing the suits include fishermen, seafood businesses, hotels, restaurants, resorts and other interests claiming economic losses.

Christy Burke, president of a legal technology PR firm, commented that this particular case is sure to involve a huge number of eDiscovery requests for documents and data from BP.  Burke quotes eDiscovery consulting firm Jones Dykstra as saying that:

“BP should consider creating a specific ‘task force’ incorporating key people from its General Counsel’s office, IT staff, and Records group to assess existing corporate policies for business records, general records retention, and current legal hold parameters.  A matter of this size and complexity is very atypical, so standard responses to litigation or regulatory inquests may not fit.  BP’s in-house and outside counsel need to decide how detailed and deep their legal hold needs to be.  As it pertains to preservation/collection/tape remediation – from a very high level there must be a cost/benefit analysis performed.  A company the size and scope of BP likely has a vast backup tape system.  Freezing and taking a large number of tapes out of rotation in an attempt to preserve could be exorbitantly expensive, but that risk must be weighed against the very real threat of spoliation.  Until BP has a strong idea of what litigation and regulatory inquests they will be facing in the near future, they will most likely preserve their data very broadly and attempt to keep narrowing the volume, type and category of data to reduce their eventual costs of processing and reviewing.”

Jim McGann of Index Engines, a provider of eDiscovery technology,  said that it is important for BP to implement a process that is “capable of gathering the data from all locations – online network storage, e-mail servers, desktops and backup tapes – in a streamlined approach.”

BP clearly has another potential crisis brewing on the litigation fallout from the disaster.  Events like this should serve as an example to all on the importance for having a solid records and document management program in place prior to their occurrence.