Engineer’s Guilty Plea for Deleting Text Messages Stands Out in a Series of Not Guilty Findings
In the months following the 2010 BP Deepwater Horizon oil rig disaster, 52 criminal counts were filed against 5 men that prosecutors believed were criminally responsible for the explosion and resulting deaths of 11 people. Of those 52 charges, 23 were withdrawn, 23 were dismissed, and jurors acquitted on three counts. Last week the final defendant in the case was found not guilty of the criminal charge he had ignored warning signs leading to the explosion.
It is interesting to note that one of the only defendants found criminally responsible was Kurt Mix, a BP engineer that was involved in efforts to stop the spill. His crime? Deleting “potentially relevant” text messages from his iPhone in the days after the disaster. Mix was arrested on April 24, 2012 and authorities initially charged him with obstructing justice for the deletion of text messages that were deemed important to the investigation. Later, Mix plead guilty to Computer Fraud and Abuse, (AKA, “Damaging a Protected Computer”.)
We encounter the attempted destruction of digital evidence nearly every day, and this case is a reminder that individuals suspected of wrong-doing may be successful in their efforts to destroy evidence that would shed light on their misconduct…but they often get caught in the act of deleting this important digital evidence. While it is sometimes impossible to recover the destroyed bits and bytes, forensic science can almost always prove the intentional destruction, including how the evidence was destroyed, when, and by whom. And proving intentional destruction of evidence (Spoliation) can be just as damaging to a defendant’s case as the alleged crime.
The Impact of an Adverse Inference
Often the unintended consequence of this foolish attempt to delete relevant evidence is something that sends shivers down the spine of even the most seasoned litigators…the “Adverse Inference,” in which a judge basically decides that the destroyed evidence would have proven the case against the individual that is attempting to cover his tracks. The Adverse Inference can be economically costly (fines and sanctions), but can also kill a case.
You may recall federal Judge R.Brooke Jackson’s Spoliation ruling in the Christou v. Beatport case. The Honorable Judge Jackson levied sanctions and an Adverse Inference when he determined that a CEO involved in the litigation failed to preserve his text messages after a litigation hold was issued in the case.
In one of the most infamous trade secret cases my firm has ever worked on, a well known Chicago Federal Judge had this to say about a defendant that admitted to destroying electronic evidence related to her employer’s legal action against her…
“…it was an extraordinarily stupid thing to do.”
Digital evidence can be fleeting, but destroying it has serious consequences. When working on a case in which ESI is important, preserve it quickly. Think it’s gone? If you can prove intentional destruction, you can still win your case. Finally, remember, judges take a dim view of those that intentionally destroy digital evidence…just ask Kurt Mix.
 U.S. Bid to Prosecute BP Staff Falls Flat. By Arunda Viswanatha. February 27, 2016  Regas Christou v. Beatport, LLC. In the United States District Court For The District of Colorado. Judge R. Brooke Jackson. Civil Action No. 10-cv-02912-RBJ-KMT  The Honorable Federal Judge Mathew Kennelly in open court in a very high stakes trade secret case in Chicago. The case name is withheld to protect the privacy of the parties involved. In this case, a 4Discovery forensic expert had proven the existence of an external thumb drive containing trade secrets that the defendant denied misappropriating. The defendant, having previously denied the existence of the drive, and faced with the forensics report proving its existence, finally admitted the judge she had destroyed the device.