Judge Warns BP to Preserve Evidence

     NEW ORLEANS (CN) – A federal judge on Tuesday denied a widow’s request for a protective order in the wrongful death of her husband, who disappeared in the April 20 explosion of the Deepwater Horizon. U.S. District Judge Jay Zainey said, “The only thing I will order is that there will be no documents or records of any nature as they relate to this case that will be destroyed. Just so everybody is clear.”

     Judge Zainey heard oral arguments Tuesday from the widow’s attorney, Scott R. Bickford. Natalie Roshto sued Transocean and BP on April 21 on behalf of her husband, Shane Roshto, a Transocean employee whose body has not been found. He is one of 11 believed to have been killed in the explosion; 17 were injured.
     Roshto’s is one of two wrongful death complaints filed in Federal Court here since the explosion. The other was filed by Michelle Jones and her 2 two-year-old son, on behalf of husband who is presumed to be dead. Jones is pregnant with another child by her missing husband.
     The Deepwater Horizon rig belonged to Transocean and was operated by BP. As owner of the rig, Transocean has a special status under maritime law, which seeks to protect “vessel owners” and grants the possibility of filing a motion to stay in one particular court. Transocean filed such a motion on Friday in Houston Federal Court; so long as that motion is pending, Transocean does not have to appear in any other court.
     Bickford brought the motion for protective order to preserve evidence from the Deepwater Horizon rig – information or equipment – that might otherwise be destroyed by BP or other defendants.
     A similar protective order was granted May 5 in another oil spill-related claim against BP by U.S. District Judge Kurt D. Engelhard in New Orleans.
     In his refusal to grant Bickford’s request, Zainey mentioned the previously granted motion for protective order, and said one is adequate – even though it’s for a different lawsuit.
     “I’m urging you to do that,” Zainey told BP attorney Don K. Haycraft, in response to Bickford’s request to be provided with all information BP is providing to the Coast Guard and congressional hearings. “I’m not ordering you to do that, but I am urging you.”
     Zainey asked Bickford: “Do you have any reason to think BP won’t honor its order not to destroy evidence?”
     “Not at all,” said Bickford, and then again later: “No. I have no evidence that BP is shredding documents in the backroom somewhere.”
     Zainey said there would be no reason to order that evidence be preserved, and added that an order might actually be detrimental in the long run.
     “Because later, if something does have to be destroyed, the Coast Guard would have to track me down first to get permission,” Zainey said.
     And with so many lawsuits already pending against BP, adding even a single additional order might slow litigation considerably, the judge said.
     “For this court to in any way put a hold up things by ordering preservation of evidence … would be inappropriate,” Zainey said. “But if you find fact that things are being destroyed, the court will have an immediate hearing.”
     Part of the complexity of the oil-spill litigation taking form all along the Gulf Coast is the sheer number of complaints already filed – with the certainty that many more are yet to come – as well as the probability that all the complaint will be consolidated into a single multidistrict litigation under a single federal judge. The possibility of this consolidated litigation is almost certain, but in which federal court the litigation will appear is still unknown.
     Both attorneys filed motions to expedite the assignment of multidistrict litigation status to these cases, but the motion was denied.
     “Probably want to let the dust settle,” said Zainey.
     The federal multidistrict litigation panel, without expedition, will meet July 29 in Boise, Idaho to discuss the consolidation.

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