A recent ruling coming from the Eastern District of Louisiana underscores the importance of document retention and the potential consequences of destroying evidence during a government investigation.

Recently, US District Judge Stanwod R. Duval of the Eastern District of Louisiana issued a ruling allowing to stand a criminal indictment against a BP employee stemming from the destruction of text and voice messages during a pending government investigation into the 2010 Gulf of Mexico oil spill.  Kurt E. Mix, a BP engineer, was charged with obstruction of justice for deleting text and voice messages pertaining to the 2010 oil spill which was under investigation by the Department of Justice.  An explosion on the platform of an oil drilling rig left 11 workers dead and created a devastating oil spill.

In his most recent motion, Mix argued, that the indictment should be dismissed for several reasons including facial insufficiency and constitutional defects in the grand jury proceedings.

To support his facial insufficiency motion, Mix argued that the indictment did not allege that the deletion of the text and voicemail messages had a “nexus to any official proceeding.”  In denying the motion, the Court ruled that there was enough evidence presented to the grand jury for the grand jury to infer that Mix knew or believed that his acts of deleting the messages would be likely to affect a pending or foreseeable proceeding.   To support this, the Court relied on the fact that Mix had received 10 Legal Hold notices advising him that deleting the data could subject him to penalties, the Department of Justice publicly announced civil and criminal investigations into the spill, and a vendor informed him that the vendor wanted to collect “all active electronic data,” all before Mix deleted the messages.

Mix also argued that the indictment should be dismissed due to alleged defects in the grand jury proceedings including the prosecutor’s failure to present any evidence regarding the content of the text and voice messages to the grand jury.  Mix argued that that the content of the text messages was actually exculpatory and the prosecutor’s omission of the exculpatory content of the messages violated the Fifth Amendment’s Grand Jury Clause.   In denying Mix’s motion, the Court held that failure to disclose exculpatory material in a grand jury is not grounds for dismissal and the validity of an indictment is not affected by the character of the evidence considered.

This case further supports the need to strictly comply with Legal Hold notices and ensure that all information related to a pending investigation is retained.  This case also demonstrates the need for employers to not only have in place a proper document retention system, but to remain vigilant and ensure employees are adhering to those policies once implemented.