Case 2:12-cr-00171-SRD-SS Document 65 Filed 06/26/12 Page 1 of 6
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
`
`UNITED STATES OF AMERICA
`
`VERSUS
`
`KURT E. MIX
`
`CRIMINAL ACTION
`
`NO. 12-171
`
`SECTION “K”(1)
`
`ORDER AND REASONS
`
`Before the Court is Defendant’s Motion for a Protective Order (Doc. 26) filed by Kurt
`
`Mix (“Mix) who was a drilling engineer for BP plc (“BP”) at the time of the Deepwater Horizon
`
`blowout on April 20, 2010. Mix worked on a number of efforts by BP to stop the resultant oil
`
`flow from the Macondo well. As part of his work, he allegedly generated and had access to BP
`
`internal data regarding the amount of oil flowing from the well. (Doc. 7, Indictment, ¶¶2 and 3).
`
`On May 2, 2012, Mix was charged by the United States in a two count indictment with
`
`obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). These charges are based on his
`
`allegedly deleting certain iPhone texts to BP’s then-Drilling Engineering Manager for the Gulf
`
`of Mexico (“SUPERVISOR”) and an outside contractor (“CONTRACTOR”) with whom Mix
`
`was working on the spill response to the Deepwater Horizon blowout and resultant three month
`
`oil spill. The gravamen of the instant motion rests on Mix’s contention that he possesses
`
`exculpatory information over which a third-party holds an attorney-client privilege.1 Mix
`
`maintains that the nature of this information “is compelling and unambiguous, and it
`
`conclusively demonstrates that defendant Mix did not commit the crimes charge in the
`
`1The documents sought to be presented to the United States are those that have been filed into the record
`under seal as Docs. 26-6, 26-7, 26-8, and 61 and its exhibits found at 61-1 and 61-2. The Court will reference
`exculpatory privileged information as “EPI”.
`
`

`
`Case 2:12-cr-00171-SRD-SS Document 65 Filed 06/26/12 Page 2 of 6
`
`Indictment.” (Doc. 26-1 at 1). Thus, Mix seeks a protective order crafted to allow him to release
`
`these privileged materials to the United States and to use them at trial.
`
`Section 1512(c)(1) of Title 18 of the United States Code with which Mix is charged as
`
`having violated provides :
`
`(c)Whoever corruptly–
`
`(1) alters, destroys, mutilates, or conceals a record, document, or other object, or
`attempts to do so, with the intent to impair the object’s integrity of availability for use in
`an official proceeding;
`
`shall be fined under this title or imprisoned not more than 20 years, or both.
`
`18 U.S.C. §1512(c)(1) (emphasis added). The term “corruptly” must reflect some consciousness
`
`of wrongdoing. Arthur Andersen LLP v. United States, 544 U.S. 696, 704-06 (2005).
`
`“Corruptly” has been defined in the context of the crime of corruptly influencing a juror under
`
`18 U.S.C. § 1503 as “knowingly and dishonestly, with the specific intent to subvert or
`
`undermine the integrity of the proceeding.” Thus, the mens rea is an ineluctable requisite for a
`
`defendant to be found guilty of this crime, and evidence demonstrating a lack of such dishonest
`
`intent would be considered exculpatory in nature.
`
`Mix argues that the exculpatory information at issue is of such a nature that no
`
`reasonable juror presented with this information could find that he engaged in an intentional
`
`effort to obstruct the government’s investigation into the Deepwater Horizon incident . As
`
`noted, because the third-party privilege holder has not waived its claim of privilege, Mix seeks a
`
`protective order pursuant to Fed. R. Crim. P. 16(d)(1) specifically providing that:
`
`(1) Mix is entitled to use at trial the exculpatory privileged information or “ EPI”;
`
`(2) Mix is entitled to disclose the EPI;
`
`2
`
`

`
`Case 2:12-cr-00171-SRD-SS Document 65 Filed 06/26/12 Page 3 of 6
`
`(3)
`
`Mix’s use and disclosure of the EPI does not vitiate the attorney-client privilege
`
`that the privilege-holder has over the EPI, and the privilege-holder will not be
`
`considered as having waived its attorney -client privilege for the EPI or any other
`
`privileged information.
`
`(4)
`
`The Government shall not use the EPI outside of its litigation with Mix. In
`
`particular, the Government is precluded from using the EPI in any investigation
`
`or litigation against the privilege-holder.
`
`(5)
`
`As necessary to further the interest of justice, this Court may modify the terms of
`
`this Protective Order at any time at the request of either party.
`
`While BP has not weighed in on whether it considers these materials meet the applicable
`
`standard for disclosure, it maintains that the materials are indeed protected by the attorney-client
`
`privilege.
`
`Applicable Standard
`
`To make the determination at issue here, the Court must balance the right of a defendant
`
`to “a meaningful opportunity to present a complete defense” as guaranteed by the Constitution
`
`and the Sixth Amendment to the United States Constitution, Crane v. Kentucky, 476 U.S. 682,
`
`690 (1986), against the attorney-client privilege which “is the oldest of the privileges for
`
`confidential communications known to the common law,” United States v. W.R. Grace, 439
`
`F.Supp.2d 1125, 1137 (D. Montana 2006), as recognized and codified in Fed. R. of Evid. 501.
`
`This effort underscores the “conflict between the policy favoring confidentiality of attorney-
`
`3
`
`

`
`Case 2:12-cr-00171-SRD-SS Document 65 Filed 06/26/12 Page 4 of 6
`
`client communications and the right of a criminal defendant to present evidence including
`
`exculpatory evidence in his defense.” Id. at 1138.
`
`In an meticulous and detailed opinion in which the court weighed these two important
`
`concepts Judge Malloy in W.R. Grace explained that cases analyzing this issue use the
`
`mechanism of a:
`
` “balancing test in which the evidence or testimony sought to be introduced by the
`defendant is weighed against the policy behind the rule requiring that the
`evidence be excluded. The Supreme Court has stated in summary fashion that the
`principle requires the evidentiary rules to yield to Sixth Amendment rights where
`application of the rules of evidence would “significantly undermine [ ]
`fundamental elements of the defendant’s defense.” United States v. Scheffer,
`523 U.S. 303, 315, 188 S. Ct. 1261, 140 L.Ed.2d 413 (1998) . . . It follows hand
`in glove that in weighing the competing interests it is the exculpatory value of the
`lost evidence to the accused that weighs most heavily on the scale of fair trial Id.
`at 316-317, 118 S. Ct. 1261; Davis, 415 U.S. at 319, 94 S. C.t 1105; Rock 483
`U.S. at 57, 107 S. Ct. 2704.
`
`W.R. Grace 439 F.Supp. 2d at 1139-40 (emphasis added).
`
`Exculpatory evidence has been extensively discussed in the context of the disclosure
`
`requirements as defined in Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. There a
`
`prosecutor is only required to disclose exculpatory evidence that, if suppressed, would deprive
`
`the defendant of a fair trial. United States v. LaRouche Campaign, 695 F. Supp. 1290 (D. Mass.
`
`1988) citing United States v. Bagley 473 U.S. 667, 675 (1985). Indeed, another district court
`
`using the materiality of the evidence as its touchstone for a Brady determination stated:
`
`Materiality is not judged simply by asking whether the information might be
`favorable to the defendant in some degree. Put the other way around, not all
`information favorable to the defendant is necessarily material. Kyles, 514 U.S. at
`437, 115 S.C.t 1555; Bagley, 473 U.S. at 675 & n. 7, 105 S. Ct. 3375. The
`touchstone of materiality is whether “there is a reasonable probability that, had
`the evidence been disclosed to the defense, the result of the proceeding would
`have been different. A ‘reasonable probability’ is a probability sufficient to
`undermine confidence in the outcome.” Bagley, 473 U.S. at 682, 105 S. Ct. 3375.
`
`4
`
`

`
`Case 2:12-cr-00171-SRD-SS Document 65 Filed 06/26/12 Page 5 of 6
`
`“The question is not whether the defendant would more likely than not have
`received a different verdict with the evidence, but whether in its absence he
`received a fair trial, understood as a trial resulting in a verdict worthy of
`confidence. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. The materiality of the
`undisclosed information is to be assess not in isolation, but in the context of
`the entire record at the trial. See United States v. Agurs, 427 U.S. 97, 112, 96
`S.Ct. 2392, 49 L.Ed.2d 342 (1976).
`
`United States v. Carpenter, 405 F.Supp.2d 85 (D. Mass. 2005) (emphasis added).
`
`Here, while obviously the decision must be made prior to trial, nonetheless, the Court is
`
`faced with a decision concerning the materiality of the evidence sought to be presented at a
`
`relatively nascent stage in these proceedings. The subject materials may indeed provide
`
`evidence that could lead a reasonable juror to find that Mix did not have the requisite dishonest
`
`intent needed to convict him on these charges. However, the lack of context and underlying
`
`facts make rendering a decision as to the admissibility of these materials at trial impossible at
`
`this time.
`
`Furthermore, the Court has not made a determination as to whether all of the materials
`
`presented in camera are indeed protected by the attorney-client privilege as to BP. In the event
`
`this matter proceeds to trial, the Court will establish a protocol at the appropriate time for a
`
`determination of which of the submissions are subject to the attorney-client privilege and
`
`whether any such documents shall be admitted into evidence at trial. Accordingly,
`
`IT IS ORDERED that the Defendant’s Motion for a Protective Order to Allow for
`
`Immediate Disclosure and, if Necessary, Use at Trial of Exculpatory Information Not Currently
`
`in the Government’s Possession (Doc. 26) is GRANTED in part and DENIED in part.
`
`IT IS ORDERED that Mix is entitled to disclose the EPI ONLY to counsel for the
`
`United States in this proceeding.
`
`5
`
`

`
`Case 2:12-cr-00171-SRD-SS Document 65 Filed 06/26/12 Page 6 of 6
`
`IT IS FURTHER ORDERED that Mix’s use and disclosure of the EPI does not vitiate
`
`the attorney-client privilege that the privilege-holder has over the EPI and the privilege-holder
`
`shall not be considered as having waived its attorney -client privilege for the EPI or any other
`
`privileged information.
`
`IT IS FURTHER ORDERED that the United States shall not use the EPI outside of its
`
`litigation with Mix. In particular, the United States is precluded from using the EPI in any
`
`investigation or litigation against the privilege-holder.
`
`IT IS FURTHER ORDERED that the Court shall establish a protocol with respect to a
`
`determination as to whether these materials are indeed protected by the attorney-client privilege
`
`and whether as such they are admissible based on the standards set forth herein.
`
`New Orleans, Louisiana, this 26th day of June 2012.
`
`
`STANWOOD R. DUVAL, JR.
`UNITED STATES DISTRICT COURT JUDGE
`
`6