Case 2:12-cr-00171-SRD-SS Document 155 Filed 12/11/12 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
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`UNITED STATES OF AMERICA CRIMINAL ACTION
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`VERSUS NO. 12-171
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`KURT E. MIX SECTION “K”(1)
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`ORDER AND OPINION
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`Before the Court is the “Motion for an Order Requiring the Government to Produce
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`Exculpatory Material Pursuant to Brady v. Maryland” filed on behalf of defendant Kurt E. Mix
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`(Doc. 92). Having reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons
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`assigned, grants the motion in part.
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`Background
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`BP plc (“BP”) employed Kurt Mix as a drilling engineer at all relevant times herein. On
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`April 20, 2010, the Deepwater Horizon, a drilling rig leased by BP and assigned to complete work
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`on the Macondo well in the Gulf of Mexico, exploded following a blowout of the well. As a result
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`of the well blowout, oil poured out of the well and into the Gulf of Mexico until July 15, 2010.
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`Following the explosion of the Macondo well, Kurt Mix participated in the effort to halt the flow
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`of oil from the well, including working on the “Top Kill” project which was designed to “kill” the
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`well. In the course of his efforts, Mr. Mix worked and communicated with other BP employees and
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`communicated with employees of agencies of the United States including the United States Coast
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`Guard, the Minerals Management Service,1 the United States Geological Survey, and NASA, as
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`1 The Minerals Management Service is now denominated the Bureau of Ocean Energy
`Management, Regulation, and Enforcement.
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`Case 2:12-cr-00171-SRD-SS Document 155 Filed 12/11/12 Page 2 of 8
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`well as with employees of Lawrence Livermore and Sandia National Laboratories, quasi-
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`governmental agencies.
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`Shortly after the well exploded, BP issued to Kurt Mix, among others, a “Legal Hold Notice”
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`directing him to retain all records relevant to the Macondo well incident. In the wake of the
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`explosion, various entities including the Department of Justice and the United States Securities and
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`Exchange Commission began investigations into the disaster.
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`On September 22, 2010 a BP vendor contacted Mr. Mix to schedule a time to collect his data.
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`Mr. Mix met with the vendor’s representative on September 27, 2010, and the vendor’s
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`representative collected hard copy documents from Mr. Mix. Thereafter on October 4, 2010, Mr.
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`Mix allegedly deleted a string of text messages from his phone which included messages to and from
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`BP’s Drilling Engineering Manager for the Gulf of Mexico ( “Supervisor”).
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`On August 17, 2011, a representative of BP’s vendor contacted Mr. Mix and scheduled a
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`meeting for August 22, 2011 to collect additional data. On August 19, 2011, prior to that scheduled
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`meeting, Mr. Mix allegedly deleted a string of text messages to and from a BP outside contractor
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`(“Contractor”). As scheduled, on, the BP vendor collected date from Mr. Mix’s iPhone and created
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`a forensic image of the phone.
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`On May 2, 2012, a grand jury returned an indictment against Mr. Mix charging him with two
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`count of obstruction of justice in violation of 18 U.S.C. §1512(c)(1), one related to the alleged
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`October 4, 2010 deletion of the text messages with Supervisor and one related to the alleged August
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`19, 2011 deletion of text messages with Contractor. On May 26, 2012, defendant’s counsel sent
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`counsel for the Government a letter requesting that the Government produce “documents,
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`information, and other materials” in twelve (12) categories of documents pursuant to Brady v.
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`2
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`Case 2:12-cr-00171-SRD-SS Document 155 Filed 12/11/12 Page 3 of 8
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`Maryland, 373 U.S. 83 (1963) and other authority. Thereafter the Court issued its Scheduling Order
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`requiring the Government produce to the defense all non-expert discovery by June 29, 2012.
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`On June 29, 2012 the Government produced approximately 20,000 documents to Mr. Mix.
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`However, the Government did not produce documents in all of categories requested by Mr. Mix
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`concluding that the documents in the unproduced categories were irrelevant. In its cover letter
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`accompanying its production of documents, the prosecution stated that “[t]he government
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`acknowledges its duty to produce Brady material. If the government identifies any material
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`requiring disclosure under Brady, it will be produced to you.” Doc. 103-2, p. 4.
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`Subsequently defendant filed this motion seeking an order that the Government produce,
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`pursuant to Brady, documents within the four categories listed below:
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`1.
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`2.
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`Documents reflecting any communications regarding “flow rate” or Top Kill
`between BP and any government agent, employee, official, or agency prior
`to October 4, 2012.
`Documents reflecting any presentations, videos, measurements, briefings,
`or interviews regarding “flow rate” or Top Kill provided by BP to any
` government agent, employee, official, or agency prior to October 4, 2010.
`3. Documents reflecting the awareness of any government agent, employee,
` official, or agency regarding “flow rate” or Top Kill prior to October 4,
`2010.
`4. A list of government agents, officials, or employees who had real-time
` access to any video feed or other stream of data or information regarding
` Top Kill or “flow rate,” including but not limited to those who were
`present at BP’s control center in Houston during the Macondo Incident
` response effort, including Top Kill.
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`During the oral argument on this motion, the Court noted its concern about the broadness
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`of defendant’s request for production. Counsel for defendant indicated that a more “tailored”
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`request for production could be submitted. Following oral argument, the Court took the motion
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`under advisement.
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`After the hearing, the defendant submitted a “Proposed Protocol” for the disclosure of the
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`Case 2:12-cr-00171-SRD-SS Document 155 Filed 12/11/12 Page 4 of 8
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`alleged Brady material. Doc. 142. In that protocol, the defendant narrowed his request to the
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`following:
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`1) The e-mail records from April 20, 2010 through October 4, 2010,
`and paper files of the nineteen (19) Government officials, employees,
`and agents identified by defendant who were most closely involved
`in the day-to-day Macondo relief effort activities2;
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`2) The grand jury transcripts, civil deposition transcripts, interview
`notes, and interview memoranda of fifty (50) government officials,
`employees, and agents “who were aware of flow rate and Top Kill
`information between April 20. 2010 and October 4, 2010, either
`because Mix and the BP colleagues with whom Mix was working
`closely provided such information or because BP (with Mix’s
`knowledge) had granted them access to the Macondo Well and/or
`BP’s proprietary data streams.”3 Doc. 142, p. 4-5. Specifically
`defendant wants the following 1) transcripts of testimony the named
`individuals gave to the grand jury empaneled to investigate BP or that
`indicted defendant; 2) transcripts of depositions the named
`individuals gave as part of MDL #2179 In re Oil Spill by the Rig
`“Deepwater Horizon” in the Gulf of Mexico; and notes and
`memoranda memorializing interviews of the identified individuals
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`2 Defendant identifies the following nineteen individuals: Bryan Domangue, Lars Herbst,
`John McCarroll and Michael Saucier (Department of Justice); John Benner, Douglas Blakenship,
`Ronald Dykhuizen, Tom Hunter, Arum Majumdar, Charles Morrow, Scott Perfect, Jim
`Redmond, Mike Stone, Marjorie Tatro, Sheldon Tieszen, and Derek Wapman (Department of
`Energy); Rear Admiral Mary Landry (U.S. Coast Guard); Jack Bullman (NASA); and Marcia
`McNutt (Flow Rate Technical Group).
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`3 Defendant identifies the following individuals in this request for information: David
`Behler, Bryan Domangue, Lars Herbst, Lance LaBiche, Don Maclay, John McCarroll, Martin
`Rinaudo, David Troquet, Troy Trosclair, Secretary Ken Salazar, Michael Saucier, and Nicholas
`Wetzel (Department of Interior); John Benner, Thomas Blanchette, Douglas Blakenship,
`Secretary Stephen Chu, Ronald Dykhuizen, George Guthrie, Tom Hunter, Arum Majumdar,
`Charles Morrow, Scott Perfect, Arthur Ratzel, Jim Redmond, Mike Stone, Marjorie Tarto,
`Sheldon Tieszen, and Derek Wapman (Department of Energy; Admiral Thad Allen and Rear
`Admiral Mary Landry (U.S. Coast Guard); Jack Bullman (NASA); Roger Clark, Paul Hsieh,
`Victor Labson, Mark Sogge (U.S. Geological Survey); Alberto Aliseda, Paul Bommer, Peter
`Cornillon, Pedro Espina, Juan Lasheras, William Lehr, Ira Leifer, Marcia McNutt, James Riley,
`Omer Savas, Steve Werely, and Poojitha Yapa (Flow Rate Technical Group); Richard Camilli,
`Andy Bowen, and Christopher Reddy (Woods Hole Oceanographic Institution).
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`Case 2:12-cr-00171-SRD-SS Document 155 Filed 12/11/12 Page 5 of 8
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`that the prosecution team or its agents conducted as part of any civil
`or criminal investigation against BP or any of its employees.
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`3) The pre-segregated documents relating to flow rate either initially
`withheld by the Government or still being withheld in the civil MDL,
`on the grounds of “deliberative privilege”; and
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`4) Other pre-segregated files in the possession, custody, or control of
`the prosecution team relating to or reflecting BP’s sharing of flow
`rate and/or Top Kill information with government personnel.
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`In its “Response to the Defendant’s Proposed Protocol with Respect to the Disclosure of
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`Brady Material” (Doc. 143), the Government agreed to the following:
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`1) “The Government will conduct electronic searches of all
`documents in the possession of the Deepwater Horizon Task Force
`that have any reference to defendant Mix’s name and will produce to
`the defendant any resulting records. The documents to be searched
`will include the Civil Division database to which the Task Force has
`access.”
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`2) “The Government will produce the memoranda of interviews
`conducted as part of its criminal investigation of the following
`individuals identified by the defendant in his proposed protocol: Rear
`Admiral Mary Landry, William Lehr, Marcia McNutt, David
`Troquet, Michael Saucier, Nicholas Wetzel, Ronald Dykhuizen,
`Charles Morrow, Richard Camilli, and Chris Reddy.”
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`3) “The Government will produce the requested civil deposition
`transcripts in connection with MDL #2179.”
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`Doc. 143, p. 12-13. Additionally, the Government stated that it does not have any grand jury
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`transcripts of any individuals identified by Mix in his “Proposed Protocol” and that it does not have
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`memoranda of interviews of other individuals identified by defendant except those identified above.
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`Id.
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`Case 2:12-cr-00171-SRD-SS Document 155 Filed 12/11/12 Page 6 of 8
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`Law and Analysis
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`In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963), the Supreme Court
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`held that “the suppression by the prosecution of evidence favorable to an accused upon request
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`violates due process where the evidence is material either to guilt or to punishment, irrespective of
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`the good faith or bad faith of the prosecution.” Evidence qualifies as “material” if “there is a
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`‘reasonable probability’ that the outcome of the trial would have been different if the evidence had
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`been disclosed to the defendant.” United States v. Runyan, 290 F.3d 223, 247 (5th Cir. 2002), citing
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`United States v. Bagley, 473 U.S. 667, 682. 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “The question
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`is not whether the defendant would more likely than not have received a different verdict with the
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`evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a
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`verdict worthy of confidence.’” United States v. Valencia, 600 F.3d 389, 418 (5th Cir. 2010), quoting
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`United States v. Brown, 303 F.3d 582, 593 (5th Cir. 2002). In the context of a pretrial motion
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`seeking production of Brady material, like that pending before this Court:
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`[t]he question before trial is not whether the government thinks that
`disclosure of the information or evidence it is considering
`withholding might change the outcome of the trial going forward,
`but whether the evidence is favorable, and therefore must be
`disclosed. . . . The only question before (and even during) trial is
`whether the evidence at issue may be “favorable to the accused”, if
`so, it must be disclosed without regard to whether the failure to
`disclose it would likely affect the outcome of the upcoming trial.”
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`United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005).
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`The crux of Mr. Mix’s Brady argument is that the materials he seeks will provide evidence
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`supporting his defense that he lacked motive to “corruptly” delete the pertinent text strings as
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`charged in the indictment. Defendant opines that the alleged Brady material sought would show that
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`numerous people involved in the Macondo well incident, including other BP employees and agents
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`Case 2:12-cr-00171-SRD-SS Document 155 Filed 12/11/12 Page 7 of 8
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`and employees of the United States and various federal agencies, knew and had the same
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`information regarding flow rates and Top Kill that Mr. Mix knew and had, and that given that
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`knowledge by others, he had no plausible motive to “corruptly” delete the information. The mere
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`fact that others involved in the Macondo well incident had the same knowledge regarding flow rates
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`and Top Kill as Mr. Mix, does not in and of itself support a conclusion that the materials possessed
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`by those individuals would be favorable to Mr. Mix and would therefore constitute material subject
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`to disclosure under Brady. Without more, such material is not relevant to the issue of defendant’s
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`state of mind with respect to allegedly deleting the two text message strings. Such information can
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`constitute Brady material, i.e., material “which may be favorable to the accused” only to the extent
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`that Mr. Mix provided the information to agents and employees of the United States and various
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`federal agencies or they provided information to him. To put it another way, the material which may
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`be favorable to the accused with respect to his state of mind is only that material which Mr. Mix
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`knew and shared with agents and employees of the United States and various federal or quasi-federal
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`agencies and material which he knew agents and employees of the United States and various federal
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`or quasi-federal agencies knew prior to the time of the alleged deletion of the test message strings.
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`Materials in the form of statements, notes, and documents reviewed or prepared by BP personnel,
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`government officials, employees and agents which were not shared with Mr. Mix cannot provide
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`exculpatory evidence concerning Mr. Mix’s intent.
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` The Court concludes that even though defendant’s “Proposed Protocol” is more narrow than
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`the scope of his original request for Brady material, based on the parameters outlined above,
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`defednant’s request continues to be overly broad both in terms of the number of individuals from
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`whom materials are sought and the time frame for the materials sought. After careful consideration,
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`Case 2:12-cr-00171-SRD-SS Document 155 Filed 12/11/12 Page 8 of 8
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`the Court finds that, the only materials relevant to Mr. Mix’s state of mind are communications from
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`Mr. Mix and communications from other BP personnel, government officials, employees and agents
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`which were made where Mr. Mix was present. Therefore, pursuant to Brady, the Government must
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`produce any notes and/or memorandum related to flow rate or Top Kill which were taken,
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`distributed and/or presented by any attendee at the May 17, 2010 meeting attended by Kurt Mix
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`at which he presented flow rate information. Additionally, the Government must produce a list of
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`the attendees at the May 17, 2010 meeting. Accordingly,
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`IT IS ORDERED that defendant’s “Motion for an Order Requiring the Government to
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`Produce Exculpatory Material Pursuant to Brady v. Maryland” (Doc. 92) is Granted in part; the
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`Government shall produce to defendant Kurt Mix not later than December 28, 2012, any notes,
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`memorandum, and/or presentations related to flow rate or Top Kill which were taken, distributed,
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`and/or presented by any attendee at the May 17, 2010 meeting attended by Kurt Mix at which he
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`presented flow rate information, as well as a list of the attendees of that meeting.
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`New Orleans, Louisiana, this 11th day of December, 2012.
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` STANWOOD R. DUVAL, JR.
` UNITED STATES DISTRICT JUDGE
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