U.S. Wants Give and Take in Disclosure of BP Oil Flow Data

     NEW ORLEANS (CN) – The United States has agreed to release 100 documents pertaining to the Deepwater Horizon explosion because, as BP claimed, “the amount of oil released from the well is a ‘factual issue’ that cannot be cloaked by privilege.”
     But BP has not yet turned over its own flow-rate documents and is likely hiding evidence, according to the government’s response, filed Wednesday.
     “The United States is currently reviewing those logs BP has already produced and has discovered entries that appear to cloak factual data under the attorney-client privilege or the attorney work product doctrine,” according to the document signed by Justice Department lawyer Sarah Himmelhoch. “For instance, BP withheld a document titled ‘Operational Data’ and dated May 29, 2010 – the same day that BP publically declared the Top Kill effort a failure.”
     Last month, BP accused the government of withholding the information it considered in estimating that 4.9 million barrels of oil were spilled into the Gulf because of the April 20, 2010, explosion and sinking of BP’s Deepwater Horizon rig. The disaster killed 11 and set off the worst offshore oil spill in U.S. history.
     BP said earlier spill estimates from the U.S. may have been lower.
     But the government’s answer says “the United States is willing to produce the 100 documents identified by BP.”
     “The United States anticipates that BP will do the same for any flow rate documents on BP’s privilege log,” the filing states.
     The U.S. says it is “willing to release these documents for two reasons.”
     First, the documents will receive only limited distribution because of the protection afforded them by pretrial order 13.
     Second, there is no subject-matter waiver for the deliberative process privilege, “so the United States can assert the privilege selectively to protect only those communications for which the chilling effect of their release outweighs the benefits of open discovery.”
     The U.S. says it is currently conducting a “re-review” of more than 10,000 documents identified by BP, aiming to finish reviewing approximately 13,000 documents by May 15.
     “Finally, he United States agrees to produce documents with the expectation that BP will abide by the principle set forth in its brief: that the amount of oil released from the well is a ‘factual issue’ that cannot be cloaked by privilege,” the document states. “It would be unfair for BP to seek production of the United States’ internal flow estimates while claiming that BP’s own flow rate analyses are protected. It would be doubly unfair to do so given the timing of the challenges – BP has had the United States’ final privilege logs in hand for more than a month while not yet producing its own logs. Thus the United States is forced to disclose its documents before a challenge to BP’s log is even ripe. BP advised the United States and the court earlier this week that there would be 15,000 to 20,000 new entries on its log when served at the end of this month – more than doubling the entries on its logs to date. The United States is currently reviewing those logs BP has already produced and has discovered entries that appear to cloak factual data under the attorney-client privilege or the attorney work product doctrine. For instance, BP withheld a document titled ‘Operational Data’ and dated May 29, 2010 – the same day that BP publically declared the Top Kill effort a failure. BP states in its current brief, ‘Such internal debate or discussions among United States officials about the quantity of oil arising from the spill is not reflective of a policymaking process – it is simply a debate about what is essentially a factual determination.’ Doc. # 6148 at 5. This is equally true for BP’s internal analyses and any claim of legal privilege. The United States looks forward to working with the court and BP to ensure that BP lives by the rule of its brief.” (Emphasis in original.)
     BP agreed in February 2012 to pay about $7.8 billion to cover personal injuries and other damages arising from the oil spill.
     That settlement does not address the fines BP still faces for environmental damages under the Clean Water and Clean Air Acts.
     The baseline fine BP will face under the Clean Water Act is $1,100 per barrel of oil. If the court finds gross negligence, that penalty can rise as high as $4,300 per barrel of oil, or $17.6 billion, using the estimate of 4.1 million barrels of oil not captured before entering water.

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