Utopian vision

By | 15th June 2010

I was fortunate to be invited to dinner recently at the House of Commons with two MPs, one my first time elected local MP and the other an old university chum, now a Minister. Being early for my meeting in the Central Lobby, where I bumped into a solicitor I know (what a small world it is!) I had time to marvel at the building that is Westminster Hall. Dating from the 11th century it survived the Great Fire in 1834 thanks to the intervention of Sir Walter Eliot who decided the Hall should be preserved and the then Chamber of the House of Commons should be allowed to burn. It also survived the best efforts to destroy it by Goering’s Luftwaffe in the 1940s and attempts by the Provisional IRA in the 1970s.

What a glory it is, particularly with its magnificent hammer beam roof, dating from the reign of Richard II (1377-99) when the original three aisles dividing the building from 1097 were replaced by “the greatest creation of mediaeval timber architecture”.

The Hall was primarily used for judicial purposes. It housed the Court of King’s Bench, the Court of Common Pleas and the Court of Chancery until the late 19th century when the High Court moved to the Strand.

It was the scene of many famous trials: Charles I, William Wallace, Guy Fawkes and Warren Hastings to name but four.

The plaque in the floor which really caught my eye for its elegant simplicity speaking to us over 450 years of the turbulent times of the Tudors was the memorial to Sir Thomas More which reads:

It is staggering to think what lies behind those simple words.

Which brings me to BP and the present oil spillage in the Gulf of Mexico.

BP is the third largest global energy company and the fourth largest company in the world. It is engaged in the sometimes dirty business of exploring for and extracting oil to satisfy the insatiable demand everywhere in the world for oil based products. President Obama would do well to remember that BP has already agreed to take full responsibility for the fallout from this leak, that much of that demand is in America’s own backyard and that US companies have also run into pollution problems in their quest for oil: remember Exxon Valdez and the Piper Alpha disaster in the North Sea!.

BP is hugely cash generative and profitable. It also features on many lists of the world’s great polluters. Incidents abound, examples being the Texas City Refinery explosion in 2005, the Prudhoe Bay oil spill in 2006 and the North Sea helicopter accident in 2009 which while not causing any pollution resulted in the death of 16 people on board a helicopter ferrying workers from BP’s platform off Scotland.

Much has been, still is being and will be written about the Deepwater Horizon oil spill in the Gulf of Mexico. As I write, despite containment efforts, an estimated 20-40,000 barrels of oil a day is still spewing into the sea with the ever widening oil slick threatening the coasts of Louisiana, Florida, Alabama, Mississippi and Texas.

I have no idea what a barrel of oil looks like and I am none the wiser when I discover that there are 42 US gallons in a barrel but that a US gallon equates to rather less than a British gallon: 3.78 litres to two decimal places so that a barrel of oil consists of about 159 litres or in British terms 35.33 gallons. Clear?

By my calculations that means that potentially 1.4 million gallons (UK) of oil are gushing into the sea every day, an unimaginable amount when one is only used to filling up an ordinary car with petrol every week or an oil tank for domestic heating as infrequently as possible!!

The litigation which will flow (sorry, no pun intended) from the spillage in the Gulf of Mexico will keep the courts in the US and elsewhere round the world occupied for years. I remember it being said that the Lehman Brothers litigation would take at least ten years to sort out and I suspect that this will be similar. Claims are likely to include:

  • Claims for damages from people and businesses affected by the oil.
  • Regulatory and criminal proceedings by the State and Federal Authorities in the US.
  • Class actions by shareholders.

There will be others and all will need evidence. Where is that evidence now and how should it be identified and preserved so that it can be accessed when required? My guess is that a company like BP will have a sophisticated document retention policy and that much of the evidence (well over 95% of which is likely to be electronic) is already preserved and available.

Trials need evidence. Even in Tudor times there was a need for a witness to give evidence against the accused, voluntarily or under duress, and there was a need for documentary evidence. Papyrus and vellum have given way over the years to paper and now to electronic data.

I have recently joined the LinkedIn Electronic Discovery Group. This is a network of business leaders, legal and IT professionals whose objective is to create an online knowledge exchange and to explore new developments, issues and best practices that relate to the legal discovery of Electronically Stored Information (ESI).

While looking over the Legal IT Professionals’ web site (via LinkedIn) I came across an intriguing article by Christy Burke which I thought it would be interesting to share with fellow readers: [Could the BP oil spill lead to an e-discovery disaster? , Legal IT Professionals, 21st May, 2010]

The article notes an application which has already been made to a court in New Orleans where a judge has issued a 20 page protective order setting out the company’s obligations to preserve documentation. Christy discusses the whole issue of litigation hold and the need for companies like BP to have robust and proper policies on the subject if they are going to be able to deal with litigation and concludes:

BP is still trying to contain the oil from the spill and to minimize its impact on the external environment – the ocean, its shores and the marine life that lives in and around the Gulf. However, the company must also focus on its internal environment from a data perspective to ensure proper stewardship of e-Discovery and to undertake the best possible litigation-preparedness measures. Fortunately, appropriate technology is available to do legal holds, preservation, collection and redaction properly. Hopefully, BP will leverage existing software tools and expert consulting help, when needed, so they can be proactive about reducing their potential e-Discovery woes. Perhaps if they do that, they don’t have another disaster on their hands.

The article is worth reading in its entirety and I leave it to you to enjoy at your leisure.