Case 2:12-cr-00171-JTM-SS Document 24 Filed 05/14/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ____________________________________ ) ) ) v. ) ) KURT E. MIX, ) ) Defendant. ) ____________________________________) UNITED STATES OF AMERICA

No. 2:12-cr-00171-JTM-SS

DEFENDANTS MOTION FOR A PROTECTIVE ORDER TO ALLOW FOR IMMEDIATE DISCLOSURE AND, IF NECESSARY, USE AT TRIAL OF EXCULPATORY INFORMATION NOT CURRENTLY IN THE GOVERNMENTS POSSESSION Before this Court, through the undersigned counsel, comes Defendants Motion for a Protective Order to Allow for Immediate Disclosure and, if Necessary, Use at Trial of Exculpatory Information Not Currently in the Governments Possession. For the reasons set forth in Defendants accompanying Memorandum of Law, Defendant respectfully requests his motion be granted.

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Respectfully submitted,

Dated: May 14, 2012

Joan McPhee Aaron Katz Ropes & Gray LLP Prudential Tower, 800 Boylston Street Boston, MA 02199-3600 (617) 951-7000 By: /s/ Michael G. McGovern Michael G. McGovern Ropes & Gray LLP 1211 Avenue of the Americas New York, NY 10036-8704 (212) 596-9000 Walter F. Becker, Jr. (LA. Bar No. 1685) Charles D. Marshall, III (LA. Bar No. 27564) Chaffe McCall, LLP 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163-2300 (504) 585-7000 Counsel for Defendant Kurt Mix

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ____________________________________ ) ) ) v. ) ) KURT E. MIX, ) ) Defendant. ) ____________________________________) UNITED STATES OF AMERICA

No. 2:12-cr-00171-JTM-SS

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION FOR A PROTECTIVE ORDER TO ALLOW FOR IMMEDIATE DISCLOSURE AND, IF NECESSARY, USE AT TRIAL OF EXCULPATORY INFORMATION NOT CURRENTLY IN THE GOVERNMENTS POSSESSION Counsel for defendant Kurt Mix (Mix), a former drilling engineer for BP plc (BP), possess exculpatory information over which a third-party holds an attorney-client privilege. The exculpatory nature of this information is compelling and unambiguous, and it conclusively demonstrates that defendant Mix did not commit the crimes charged in the Indictment. Simply put, no reasonable juror presented with this information could find, as the Indictment alleges, that defendant Mix engaged in an intentional effort to obstruct the Governments investigation into the Deepwater Horizon incident (the Incident); indeed, the exculpatory information is of such a character that it eviscerates even the supposed probable cause upon which the Indictment is predicated. However, because the third-party privilege-holder has not waived its claim of privilege, the Government was unaware of this exculpatory information when it chose

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to indict defendant Mix, and it remains unaware of it today. The defense brings this motion for a protective order, pursuant to Fed. R. Crim. P. 16(d)(1), in order to remedy that situation.1 The Supreme Court has made clear that the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citation omitted). This fundamental right cannot be impaired by a third-partys claim of privilege over exculpatory information that would otherwise be admissible at trial. To the contrary, the law requires that the [attorney-client] privilege yield where its invocation is incompatible with a criminal defendants right to present a defense. United States v. W.R. Grace, 439 F. Supp. 2d 1125, 1145 (D. Mont. 2006). That is precisely the circumstance that exists here. Accordingly, the defense respectfully moves this Court for an order allowing for immediate disclosure of the exculpatory privileged information to the Government and, if necessary, use of that information in Mixs defense at trial. In order to ensure that the rights and interests of the privilege-holder are not unduly compromised, Mix also requests that the Courts protective order make clear that the defenses use of this exculpatory information does not constitute a waiver on the part of the privilege-holder. See id. at 1145 (In any instance in which privileged communications are admitted, the Court will make clear that the privilege is abrogated over [the privilege-holders] . . . objection and that the compelled trial disclosure does not constitute a blanket waiver of . . . [its] attorney-client or attorney work product privileges. (citation omitted)).

So that the Court may appropriately consider this motion, Defendant has filed ex parte under seal the privileged material together with a detailed summary and explanation of why the information is so highly exculpatory. 2

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If this Court issues the requested protective order, the defense intends promptly to disclose the exculpatory privileged information to the Government and to request that the Government voluntarily dismiss the pending Indictment against Mix. FACTUAL BACKGROUND On April 20, 2010, the Macondo Well in the Gulf of Mexico experienced an uncontrolled blowout of gas and oil. See Indictment 2. Upon learning of the blowout, BP immediately sought to halt the flow and called upon a team of its engineers, including defendant Mix, to assist with these efforts. Prior to the Incident, Mix had no involvement with the Macondo Well. The Government has charged Mix with two felony counts of obstruction of justice, in violation of 18 U.S.C. 1512(c)(1). In particular, the Indictment alleges that Mix corruptly and with specific intent to obstruct the Governments grand jury investigation deleted from his iPhone two text message strings containing information regarding the Macondo Wells flow rate and BPs efforts to halt the flow of oil from the well. Indictment 1720. According to the Indictment, Mix generated and had access to BP internal data regarding the amount of oil flowing from the Macondo Well after the explosions and corruptly sought to hide that information, which was relevant to various efforts to stop the flow and was also relevant to assessing the damage caused by the flow, including potential civil damages and civil and criminal fines and restitution. Indictment 3. Most of the individual text messages in the two strings cited by the Government involve only personal or otherwise inconsequential communications (e.g., where to go for lunch; which room to meet in; when to meet; and conversations about fishing, farming, a pets surgery, yoga,

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home repairs, and barbecue).2 The Government, however, cites to one specific text message in the middle of the Supervisor text message string as evidence of Mixs allegedly corrupt intent to obstruct the grand jury investigation. See Affidavit of FBI Special Agent Barbara ODonnell, April 23, 2012 (Aff.) 6. That particular message, dated May 26, 2010, was between Mix and his then-supervisor (Supervisor) and addressed flow rate information during the Top Kill operation, a multi-day effort undertaken by BP to plug the Macondo Well by pumping mud and other debris into the well. See id. 14. BP publicly announced the failure of Top Kill immediately after the operation was halted on May 29, 2010, but the Government alleges that Mixs text message on May 26 revealed that he understood that the operation would not succeed due to the high rate of oil flowing from the well. By deleting this message on or about October 4, 2010 -- the Governments theory goes -- Mix was attempting to hide the fact that, during the Top Kill effort, he believed and expressed to his Supervisor that the effort would not work, which was contrary to BPs public statements at that time. See id. 6. The Governments theory of obstructive intent is directly controverted by the privileged exculpatory evidence being submitted to this Court under seal for ex parte review. That evidence establishes affirmatively that Mix had no intent to hide either flow rate or Top Kill information and that he in fact hid neither. Indeed, the evidence establishes that, at the very same time that the Government alleges Mix was corruptly deleting text messages, he was
2

Defense counsel have recovered the entire universe of text messages exchanged between Contractor and Mix during the relevant time period from the date of the Incident through the date of the allegedly corrupt deletion of the Contractor text message string on or about August 19, 2011 and, for illustrative purposes, have attached them hereto as Exhibit A. Defendant Mixs allegedly corrupt deletion of the Contractor text-message string forms the exclusive basis for the Governments obstruction of justice charge in Count 2 of the Indictment. See Indictment 15 (On or about Friday, August 19, 2011, Defendant KURT MIX deleted from his iPhone all texts with CONTRACTOR.); 19-20 (charging the August 19, 2010 deletion as Obstruction of Justice). 4

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being entirely forthcoming in answering questions and providing detailed information about the Incident, including flow rate and Top Kill.3 Because the privilege-holder has not waived privilege with respect to the exculpatory evidence, a protective order is necessary to uphold defendant Mixs rights without causing unnecessary harm to the privilege-holder. As set forth below, Mixs fundamental constitutional rights require that he be able (1) to disclose this exculpatory information to the Government in support of a request that the Government voluntarily dismiss the pending charges, and (2) if the Government does not relent, to use this evidence at trial in his defense. ARGUMENT I. Mixs Constitutional Right to Use the Exculpatory Information at Issue Trumps the Third Partys Claim of Attorney-Client Privilege. The Constitution entitles a defendant to a meaningful opportunity to present a complete defense. Crane, 476 U.S. at 690 (citations and internal quotations omitted); Taylor v. Illinois, 484 U.S. 400, 409 (1988) (holding that the Sixth Amendment protects the right to present the defendants version of the facts); Pennsylvania v. Ritchie, 480 U.S. 39, 40 (1987) (stating that criminal defendants have the right . . . to put before a jury evidence that might influence the determination of guilt). This right is so fundamental that where, as here, a defendant is in possession of exculpatory information over which a third party holds an attorney-client privilege,

While the privileged information being submitted ex parte and under seal fully exonerates Mix as described herein, it is by no means the only exculpatory evidence in this case. There is substantial additional exculpatory information, including not only thousands and thousands of emails, text messages, other electronic information and hard-copy documents that Mix preserved on the very same subject matter, but also evidence embedded in the forensic footprint of the iPhone itself that reflects wholly innocuous reasons for the two text message string deletions in issue. Nevertheless, the privileged information at issue in this motion is not at all duplicative or cumulative of this additional exculpatory information, and it exculpates Mix in a particularly direct and unambiguous manner. 5

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the defendant is entitled to use that information at trial notwithstanding the privilege-holders objection. See W.R. Grace, 439 F. Supp. 2d at 1145. In W.R. Grace, co-defendants sought to use exculpatory information over which a thirdparty held an attorney-client privilege. Id. at 1136. The government agreed that the defendants were constitutionally entitled to present the exculpatory information at trial. Id. The court likewise agreed, holding that the law requires that the privilege yield where its invocation is incompatible with a criminal defendants Sixth Amendment rights. Id. at 1145. The courts holding in W.R. Grace is consistent with the Supreme Courts admonition in United States v. Nixon that a generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. 418 U.S. 683, 685 (1974) (citation omitted); cf. also Gen. Dynamics Corp. v. United States, 131 S. Ct. 1900 (2011) (recognizing that, where the governments invocation of the state secrets privilege prevents a civil defendant from presenting a defense, the government is barred from continuing its case against the defendant); United States v. Libby, 432 F. Supp. 2d 26, 50 (D.D.C. 2006) (a defendants right to obtain relevant and admissible evidence overcomes assertion of reporters privilege). II. A Protective Order That Allows Mix to Use the Privileged Information But Also Makes Clear that the Privilege-Holder Has Not Waived the Privilege Appropriately Protects the Rights of All Parties. The privileged information that Mix possesses is central to his defense and capable of fully exonerating him. There is no question that, should the Government continue to pursue its charges, Mix will be constitutionally entitled to use the information at trial. Mix recognizes, however, that the third-party that holds the privilege over the information at issue here is deserving of protection. Accordingly, Mix seeks a protective order that makes clear that Mixs

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disclosure of the privileged information to the Government and, if necessary, use of the information at trial would not constitute a waiver on the part of the privilege-holder.4 Such a protective order is fully consistent with the holdings in Nixon and W.R. Grace. See Nixon, 418 U.S. at 713-17 (ordering in camera examination of the privileged materials); W.R. Grace, 439 F. Supp. 2d at 1145 (recognizing that the compelled use of privileged information at trial did not constitute a blanket waiver on the part of the privilege-holder and establishing procedure for in camera review of privileged information and supporting documents); see also United States v. Thompson, 562 F.3d 387, 397 (D.C. Cir. 2009) (instructing the district court to determine which documents were material to [the defendants] . . . ability to prepare his defense, and upon identifying those documents to afford appropriate protection to [the third party privilege-holder] . . . against public disclosure in a manner that is consistent with [the defendants] . . . right to a fair trial. . . .). Indeed, the government itself has recognized that protective orders are appropriate under circumstances similar to the ones that exist here. For example, in United States v. Sattar, No. 02-CR-395 (JGK), 2003 U.S. Dist. LEXIS 16164 (S.D.N.Y. Sept. 15, 2003), the governments obligations under Brady v. Maryland, 373 U.S. 83 (1963), required it to provide to the defendant exculpatory material over which a third-party held an attorney-client privilege. At the governments request, the court issued a protective order that, inter alia, restricted the defendant from disseminating this privileged Brady information to non-parties. Sattar, at *52, *63-64.

Although not necessary to address at this time, it should be noted that further, specific procedures may be appropriate in connection with the contemplated disclosure of the exculpatory material to the Government, given the nature of that material and the identity of the privilegeholder. 7

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CONCLUSION For the reasons stated, Mix respectfully requests that the Court grant his Motion for a Protective Order to Allow for Immediate Disclosure and, if Necessary, Use at Trial of Exculpatory Information not Currently in the Governments Possession.

Respectfully submitted, Dated: May 14, 2012 Joan McPhee Aaron Katz Ropes & Gray LLP Prudential Tower, 800 Boylston Street Boston, MA 02199-3600 (617) 951-7000 By: /s/ Michael G. McGovern Michael G. McGovern Ropes & Gray LLP 1211 Avenue of the Americas New York, NY 10036-8704 (212) 596-9000 Walter F. Becker, Jr. (LA. Bar No. 1685) Charles D. Marshall, III (LA. Bar No. 27564) Chaffe McCall, LLP 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163-2300 (504) 585-7000 Counsel for Defendant Kurt Mix

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Case 2:12-cr-00171-JTM-SS Document 24-3 Filed 05/14/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ____________________________________ ) ) ) v. ) ) KURT E. MIX, ) ) Defendant. ) ____________________________________) UNITED STATES OF AMERICA

No. 2:12-cr-00171-JTM-SS

[PROPOSED] PROTECTIVE ORDER Defendant Kurt Mixs Motion for a Protective Order to Allow for Immediate Disclosure and, if Necessary, Use at Trial of Exculpatory Information Not Currently in the Governments Possession is hereby GRANTED. In connection with that motion, the Court hereby orders as follows: 1. Mix is entitled to use at trial the contents of exculpatory privileged information filed with the Court under seal by Mix on May 14, 2012 (the Privileged Information). 2. Mix is entitled to disclose the Privileged Information to the Government at any time prior to trial. 3. Mixs use and disclosure of the Privileged Information does not vitiate the attorneyclient privilege that the privilege-holder has over the above information, and the privilege-holder will not be considered as having waived its attorney-client privilege over the Privileged Information or any other privileged information.

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4. The Government shall not use the Privileged Information outside of its litigation with Mix. In particular, the Government is precluded from using the Privileged Information in any investigation or litigation against the privilege-holder. 5. As necessary to further the interests of justice, this Court may modify the terms of this Protective Order at any time at the request of either party.

Dated: ____________

_____________________________________ Jane Triche Milazzo, U.S. District Judge

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CERTIFICATE OF SERVICE I hereby certify that on this 14th day of May, 2012, a copy of the foregoing motion has been filed with the United States District Court for the Eastern District of Louisiana by electronic case filing/case management. All counsel of record are being served this filing by either the courts electronic filing system or by telefaxing and/or placing a copy of same in the United States mail, properly addressed and with adequate postage affixed thereon. _ _/s/ Michael G. McGovern ___