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As the fallout — both figurative and literal — from the BP oil spill continues to spread, one of the components of this massive mess that has been largely overlooked is the looming e-discovery challenge on the horizon. Although the legal strategies for BP and the other companies involved in the Deepwater Horizon disaster have yet to be fully developed, one thing is certain, their in-house legal departments are in the midst of an expensive task: Discovery.
The companies involved in the spill are under document hold demands, subpoenas, and other requests from federal agencies, including the Justice Department, who intend to drill deep into both civil and criminal investigations concerning the massive oil spill in the Gulf of Mexico. The companies will also be subject to court orders in pending litigation as public and federal agencies come for blood. In response, the companies’ legal teams are likely to be sifting through and collecting massive amounts of data in both electronic and paper form — information that may date back as far as when oil cost less than a $1.00 a gallon (i.e. decades). In addition, there may be physical evidence to collect which may be have been (conveniently) destroyed.
Meanwhile, the companies’ lawyers are also likely dealing with cross-continental privacy issues that make the discovery process even more complex. Figuring out what data is out there and who has it will be the first crude step in the process. That entails conducting interviews with employees, and working with IT professionals to see what data can be retrieved and from where. Producing these documents in the public eye adds one more layer to the complex shell, legal experts say. The companies will have to be transparent and communicate regularly with government agencies about their processes; that will be the key to both the companies’ legal defense and their public image.
Some documents, like those dealing with estimated oil reserves, are easier to get to than others. For example, barrels of the information the U.S. Government wants to obtain addressing how companies immediately responded to the disaster will be in electronic form. But government investigators may also want to examine decades-old paper documents about construction and equipment, such as paperwork pertaining to the now-sunken oil rig. There’s also the challenge of getting employees to retain potentially damning information after document hold notices have been issued. Furthermore, these issues could be even murkier for in-house lawyers if the companies face criminal charges.
In the end, how much will these discovery efforts cost? A lot. Much more than the cost of filling up your Hummer with the liquid gold that ultimately caused this spill. In fact, the price tag for e-discovery alone could top $100 million, said an e-discovery software provider who, like many, predicts that litigation related to the spill will go on for years. “It’s going to be Exxon on steroids,” he said. Because of the complexities of this issue, e-discovery promises to be yet another element of the BP oil spill that presents an extremely high “green” cost: Money!
– Blake Carter
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