You Can be Indicted for Deleting Text Messages

The United States Department of Justice recently charged Kurt Mix, a former engineer for BP with two counts of obstruction of justice. According to the criminal complaint and arrest warrant, Mix worked on BP’s attempt to estimate the amount of oil leaking from the Deepwater Horizon blowout. He was also involved in efforts to stop the leak. According to the complaint, Mix, received numerous notices instructing him to retain all information related to Deepwater Horizon. These notices instructed Mix to retain ESI, including text messages. After receiving these notices, Mix allegedly deleted over 200 text messages with a BP supervisor which Mix had on his iPhone which contradicted BP’s public statements related to the flow rate of oil from the leaking well. In addition, Mix, allegedly deleted more than 100 text messages with a BP contractor from his iPhone after he learned his iPhone was about to be imaged. According to the complaint, Mix deleted these messages after receiving numerous legal hold notices and while he was in contact with defense counsel. If convicted, Mix faces up to 20 years in prison and a $250,000 fine per count. This criminal complaint demonstrates the serious nature of a person’s obligations to retain ESI when an investigation is pending at that all ESI, including text messages, fails within the rubric of what must be retained.

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