Government delays document production in BP litigation; Napolitano lacks email is cited as one reason

By Steve Korris | Sep 20, 2011


NEW ORLEANS � Homeland security secretary Janet Napolitano lacks an electronic mail account, the Obama Administration offers as one of many excuses for delays in producing documents about the Deepwater Horizon explosion.

"The secretary's staff must conduct a manual search of her records, some of which are stored chronologically rather than according to subject, so that documents regarding Deepwater Horizon are maintained alongside documents regarding other department business," administration lawyers pleaded on Sept. 6.

"Given the sensitive nature of the materials handled by the secretary of homeland security, the number of personnel who can be deployed to conduct this search is limited," they wrote to U. S. Magistrate Judge Sally Shushan.

"None of the secretary's records have been produced to date," they wrote.

They supplied further reasons for document delays at the departments of Energy and Interior, the Environmental Protection Agency, the Coast Guard, the Navy, the Army Corps of Engineers, the National Oceanic and Atmospheric Administration, and the National Institutes of Standards and Technology.

They wrote that agencies must review documents for privileged material, and that the White House must separately review its communications with the agencies.

"The United States has made diligent and expedited efforts to comply with the accelerated discovery schedule, but it is far from completing its responses to these discovery requests," they wrote.

They asked Shushan to "bear in mind the significant financial and practical restraints on the United States' ability to move any faster than it has."

Shushan assists District Judge Carl Barbier, who presides over about 500 Deepwater Horizon suits from many federal courts.

Barbier plans a trial to allocate liability for the explosion, starting in February.

He hasn't decided whether jurors will allocate any fault to the United States.

Rig operator BP and other defendants think the government should bear some liability.

Their demands for documents give the administration a clue to the burden businesses face in defending civil suits.

According to the administration's brief, the Coast Guard has spent $3 million reviewing documents, not counting its personnel costs.

"At various times, the Coast Guard estimates that it has had between 50 and 100 people working on various aspects of the documentation and electronic spill archiving efforts," the lawyers wrote.

They wrote that the Coast Guard collected 1,300 laptops, and they estimated it would take months to scan the documents.

"Approximately 1,900 boxes of paper remain to be sorted and prepared for scanning," they wrote.

According to the attorneys, NOAA spent more than $3 million on discovery contractors and loaded 15 million pages to a review platform. But despite assigning 12 full time attorneys to a privilege review for more than two months, NOAA was not likely to complete it before Nov. 15.

They wrote that Interior has spent $1.12 million on equipment, software and vendor services, and expects to spend $1.18 million more.

Interior has about 20 contract staff engaged in document review and hopes to complete privilege review by Nov. 1.

They wrote that EPA employed 55 reviewers and spent $570,000 on contractors, and as of Aug. 31, EPA produced more than a million pages.

They estimated that EPA would need to redact 3,500 documents.

The Department of Energy, custodian of records from a national oil spill commission, hasn't estimated its costs. They wrote that the Department of Justice is "attempting to identify the resources necessary to complete the review of the approximately 500,000 potentially privileged records found within the working papers of the national commission."

They wrote that within each agency, there were significant communications with the executive office of the President. The Department of Justice segregated documents likely to contain those communications for review by the office of the President.

They wrote that once the office begins the review and has a better sense of the time it will take, the United States would estimate a time frame for completing the review.

"Given the unknown time frame for collection of the Coast Guard records, however, it will be impossible to provide a firm end date for completing the executive office of the President review of those documents," they wrote.

Assistant attorney general Tony West filed the brief along with 22 Department of Justice colleagues.

On Sept. 8, BP lawyer Robert Gasaway of Washington wrote that the government's position was untenable.

He wrote that the United States has long possessed all relevant documents, and it expected the United States to produce communications between the agencies and the executive office.

He wrote that if the United States wanted a single review at the executive office, it should have planned accordingly.

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