BP Oil Spill Litigation:U.S. Appeals Judge's Decision On Motion To Compel BP To Produce Documents Based On The Crime-Fraud Exception To The Attorney-Client Privilege

Case 2:10-md-02179-CJB-SS Document 10002 Filed 05/15/13 Page 1 of 5
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
: MDL NO. 2179 : : SECTION J : : JUDGE BARBIER THIS DOCUMENT RELATES TO: : : MAGISTRATE JUDGE SHUSHAN ALL CASES : ................................................................................................................................................ UNITED STATES= MOTION TO APPEAL DECISION OF THE MAGISTRATE JUDGE REGARDING CRIME-FRAUD MOTION TO COMPEL (Dkt. No. 9592)
IN RE: OIL SPILL BY THE OIL RIG ADEEPWATER HORIZON@ IN THE GULF OF MEXICO, ON APRIL 20, 2010
The United States respectfully appeals the Magistrate Judges decision (Dkt. No. 9592) concerning the United States motion to compel production of documents based on the crimefraud exception (Dkt. No. 8417) for the reasons briefly summarized here and described in full in our accompanying brief. BP pled guilty to the crime of obstructing justice by providing false and misleading flow rate information to Congress during the response. The company provided that same false information to the National Incident Command by email and to the public through filings with the SEC. BPs false flow rate statements were developed under the direction of the companys attorneys, as BP itself explained to the Magistrate Judge in multiple filings. Under blackletter law, BPs use of attorneys to aid in its wrongdoing destroys any privilege for the communications BP used in its criminal or fraudulent activity. This bedrock principle of privilege law is known as the crime-fraud exception to the attorney-client privilege. In the motion to compel, the United States sought all documents related to the preparation of seven statements BP made to government officials and the public regarding the flow rate -1-
during the response, specifically (1) fraudulent communications to Congress on May 4, 2010 and fraudulent letters to Congressman Markey dated May 24 and June 25, 2010; (2) a fraudulent statement to Federal On-Scene Coordinator Admiral Mary Landry on May 19, 2010; and (3) fraudulent securities statements on April 29 and 30 and May 4, 2010 (collectively referred to here as the Crime-Fraud Communications). On April 30, 2013, the Magistrate Judge ruled on the United States motion by ordering production of 22 documents sought by the United States and finding that 84 additional documents identified by BP as related to the Crime-Fraud Communications did not fall within the crime-fraud exception. The United States submits that the Magistrate Judge used the incorrect legal standard and applied the standard incorrectly. A court reviewing a crime-fraud assertion conducts a two-step analysis in the Fifth Circuit. First, the reviewing court determines whether the party asserting crime-fraud has made a prima facie case that its opponent intended to further an ongoing crime or fraud during the attorney-client relationship. In re Grand Jury Subpoena, 419 F.3d 329, 346 (5th Cir. 2005). Once that showing is made, the crime-fraud exception applies. Id. The second step addresses which documents must be produced those reasonably related to the furtherance of the ongoing or future crime or fraud at issue. Id. at 347. The United States respectfully submits that the Magistrate Judge made three errors in her opinion. At the first step of the analysis, she applied the law to the facts incorrectly in concluding that the United States failed to make a prima facie showing of a crime or fraud with respect to BPs false statements to the SEC. At the second step of the analysis, she both used an incorrect legal standard not briefed by the Parties and then applied it incorrectly. The Magistrate Judges decision was contrary to law, and the United States respectfully requests that the Court overturn that decision and grant the United States motion to compel in full. Specifically, the United States requests that the Court order the production of all documents -2-
reasonably related to the preparation of the Crime-Fraud Communications. The Parties would then work with the Magistrate Judge to define the universe of documents affected. We incorporate by reference our filings before the Magistrate Judge in this appeal.
Respectfully submitted,
BRIAN HAUCK Deputy Assistant Attorney General Civil Division PETER FROST Directory, Torts Branch, Civil Division Admiralty and Aviation STEPHEN G. FLYNN Assistant Director MICHELLE DELEMARRE SHARON SHUTLER JESSICA SULLIVAN JESSICA MCCLELLAN MALINDA LAWRENCE Trial Attorneys
IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division SARAH HIMMELHOCH Senior Litigation Counsel NANCY FLICKINGER SCOTT CERNICH THOMAS BENSON Senior Attorneys DEANNA CHANG A. NATHANIEL CHAKERES JUDY HARVEY ABIGAIL ANDRE RACHEL HANKEY BETHANY ENGEL Trial Attorneys /s/ Steven ORourke STEVEN OROURKE Senior Attorney Environmental Enforcement Section U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044 Telephone: 202-514-2779 Facsimile: 202-514-2583 E-mail: steve.orourke@usdoj.gov DANA J. BOENTE United States Attorney Eastern District of Louisiana SHARON D. SMITH Assistant United States Attorney Eastern District of Louisiana 650 Poydras Street, Suite 1600 -3-
/s/ R. Michael Underhill R. MICHAEL UNDERHILL, T.A. Attorney in Charge, West Coast Office Torts Branch, Civil Division U.S. Department of Justice 7-5395 Federal Bldg., Box 36028 450 Golden Gate Avenue San Francisco, CA 94102-3463 Telephone: 415-436-6648 Facsimile: 415-436-6632 E-mail: mike.underhill@usdoj.gov
New Orleans, LA 70130 Telephone: (504) 680-3000 Facsimile: (504) 680-3184 E-mail: sharon.d.smith@usdoj.gov Attorneys for the UNITED STATES OF AMERICA
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CERTIFICATE OF SERVICE I hereby certify that the above and foregoing document has been served on all counsel by electronically uploading the same to Lexis Nexis File & Serve in accordance with Pretrial Order No. 12, and that the foregoing was electronically filed with the Clerk of Court of the United States District Court for the Eastern District of Louisiana by using the CM/ECF System, which will send a notice of electronic filing in accordance with the procedures established in MDL 2179. Date: May 15, 2013. /s/ Steve ORourke U.S. Department of Justice
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Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 1 of 32
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
: MDL NO. 2179 : : SECTION J : THIS DOCUMENT RELATES TO: : JUDGE BARBIER : : MAGISTRATE JUDGE SHUSHAN ALL CASES : ................................................................................................................................................ UNITED STATES= MEMORANDUM IN SUPPORT OF MOTION TO APPEAL DECISION OF THE MAGISTRATE JUDGE REGARDING CRIME-FRAUD MOTION TO COMPEL (Dkt. No. 9592)
IN RE: OIL SPILL BY THE OIL RIG ADEEPWATER HORIZON@ IN THE GULF OF MEXICO, ON APRIL 20, 2010
TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. The Criminal And Fraudulent Communications At Issue . . . . . . . . . . . . . . . . . . 4 A. False and Misleading Statements to the Public through SEC Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 False and Misleading Statements to Congress . . . . . . . . . . . . . . . . . . . . . 4 1. May 4, 2010 presentation to Congressional Subcommittee claiming flow rate was 5,000 BOPD . . . . . . . . . . . . . . . . . . . . . 4 May 24, 2010 letter to Congressional Subcommittee claiming flow rate was 5,000 BOPD . . . . . . . . . . . . . . . . . . . . . 5 June 25, 2010 letter to Congressional Subcommittee misstating basis for worst case discharge estimate . . . . . . . . . . 6
B.
2.
3.
C.
False and Misleading Statements to the National Incident Command . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. III.
BP Used Attorneys To Direct Its Crime-Fraud Communications . . . . . . . . . . . . 8 BPs Internal Flow Rate Estimates Were Far Higher Than Those Shared With The Government And The Public . . . . . . . . . . . . . . . 8 Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV.
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. Applicable Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. B. II. Standard for Appeal of a Magistrate Judge Decision . . . . . . . . . . . . . . . 13 Standard Applicable To The Crime-Fraud Exception . . . . . . . . . . . . . . 13
The Crime-Fraud Exception Is Triggered By BPs Knowingly False Flow Rate Statements . . . . . . . . . . . . . . . . . . . . . . 15
III.
All Documents Reasonably Related to Preparation of the Crime-Fraud Communications Should Be Produced . . . . . . . . . . . . . . . . . 17 A. The Documents Sought by the United States Meet the Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The Magistrate Judge Employed the Incorrect Standard . . . . . . . . . . . . 19 The Magistrate Judge Erred in Using Mr. Raineys Involvement to Determine whether Individual Documents Must Be Produced . . . . . . . 21
B. C.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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TABLE OF AUTHORITIES FEDERAL CASES Clark v. United States, 289 U.S. 1 (1933) .....................................................................1, 13 Coleman v. American Broadcasting Cos., 106 F.R.D. 201 (D.D.C. 1985) .......................14 In re Grand Jury Proceedings, 43 F.3d 966 (5th Cir. 1994) ............................................20 In re Grand Jury Proceedings, 680 F.2d 1026 (5th Cir. 1982) .....................................1, 20 In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) ....................................... passim In re International Systems & Controls Corp. Securities Litigation., 693 F.2d 1235 (5th Cir. 1982).......................................................................................18 In re Richard Roe, Inc., 68 F.3d 38 (2nd Cir. 1995)....................................................19, 20 In re Richard Roe, Inc., 168 F.3d 69 (2nd Cir. 1999) ........................................................20 In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) ...........................................................14 Matter of Toyota of Jefferson, Inc., 14 F.3d 1088 (5th Cir. 1994) ...................................13 Payne v. United States, 289 F.3d 377 (5th Cir. 2002) ......................................................13 Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986) ............................................................13 Rambus, Inc. v. Infineon Technologies AG, 222 F.R.D. 280 (E.D. Va. 2004) ..................13 Sandhu v. Bransom, 932 F. Supp. 822 (N.D. Tex. 1996) .................................................13 Securities and Exchange Commission v. BP p.l.c., Civil Action No. 2:12-cv-02774 (E.D. La.) (Dkt. Nos. 1 & 2) .....................................4 Southern Scrap Metal Co.. v. Fleming, Number Civ.A. 01-2554, 2003 WL 21474479 (E.D.La. June 18, 2003) .............................................................20 United States v. Ballard, 779 F.2d 287 (5th Cir. 1987) .....................................................14 United States v. BP Exploration and Production, Inc., Criminal Case 2:12-cr-00292-SSV-DEK (E.D. La.) Dkt. No. 2 ...........................................................5 United States v. Dyer, 722 F.2d 174 (5th Cir. 1983) .........................................................18
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United States v. Kaplan, No. 02 CR. 883(DAB), 2003 WL 22880914 (S.D.N.Y. Dec. 5, 2003) ......................................................20, 21 United States v. Zolin, 491 U.S. 554 (1989) ................................................................13, 14 FEDERAL STATUTES 28 U.S.C. 636(b)(1)(A) .................................................................................................13 33 U.S.C. 1321(b)(7)(D) ...................................................................................................4 15 U.S.C. 78j(b) ............................................................................................................17 15 U.S.C. 78m(a) ............................................................................................................17 FEDERAL REGULATIONS 17 C.F.R. 240.10b-5 .........................................................................................................17 17 C.F.R. 240.12b-20.........................................................................................................17 17 C.F.R. 240.240.13a-16 ..................................................................................................17 FEDERAL RULES Fed. R. Civ. P. 72(a) .........................................................................................................13 OTHER AUTHORITIES Deborah F. Buckman, Annotation, Crime-Fraud Exception Work Product Privilege in Federal Courts, 178 A.L.R. Fed. 87, 2[a] (2002) ...............................14
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TABLE OF EXHIBITS Ex. 1 Ex. 2 Ex. 3 Ex. 4 Ex. 5 Ex. 6 Ex. 7 Ex. 8 Ex. 9 Ex. 10 Ex. 11 Ex. 12 Ex. 13 Ex. 14 Ex. 15 Ex. 16 Ex. 17 Ex. 18 Ex. 19 Ex. 20 July 19, 2012 Letter from R. Gasaway to Judge Shushan, Dkt. No. 7009 (July 19, 2012 Letter) BP Crime Fraud Privilege Logs (Confidential) Robert Sanders Deposition at 127:20-128:3, 212:10-213:1 Thad Allen Deposition at 514:16-516:22 Simon Bishop Deposition at 230:6-12, 242:25-243:9, 486:5-10, 488:24-489:7 Trevor Hill Deposition at 293:17-294:12 BP April 29, 2010 Form 6-K BP April 30, 2010 Form 6-K BP May 4, 2010 Form 6-K May 14, 2010 Letter E. Markey to L. Mackay May 24, 2010 Letter, K. Bailey to E. Markey BP Guilty Plea Agreement in United States v. BP Exploration and Production, Inc., No. 2:12-cr-00292-SSV-DEK [Dkt. 2] June 25, 2010, BP Letter from David Nagle to Congressional Subcommittee May 17, 2010 Letter from Admiral Landry to D. Suttles David Rainey Deposition at 182:4-184:15 May 16, 2010 Email, R. Lynch Email to D. Rainey (Confidential) May 18, 2010 Email chain, J. Lynch to D. Suttles, including May 17, 2010 Email, D. Rainey to J. Lynch (Confidential) May 19, 2010 D. Suttles Email to Admiral Landry (Dep. Ex. 3218) May 15, 2010 Email, M. Mason to Andy Inglis, cc: Jasper Peijs, Subject: Macondo Oil Rate (Dep. Ex. 3220) BP Powerpoint titled Well Control Simulation Results April 22, 2010 (BP-HZN2179MDL00443041- BP-HZN-2179MDL00443043) (Confidential)
Ex. 21
Email chain from Kelly McAughan, Bryan Ritchie, and Jonathan Bellow, dated April 23-24, 2010, Subject: Re: Flow rate and production profile (Dep. Ex. 2409) (Confidential) Timothy Lockett Deposition at 29:22-30:1; 89:22-91:24; 155:4-156:16; 425:23-428:24 Email from Tim Lockett to Farah Saidi, cc: Trevor Hill, Ian Stillwell, dated April 27, 2010 Subject: Horizon pipesim model (Dep. Ex. 9445) (Confidential) Email from Tim Lockett to Trevor Hill, dated May 3, 2010, Subject: Best estimate (Dep. Ex. 9466) (Confidential) Charles Holt Deposition at 261:1-18 April 30, 2010 Email Exchange (Dep. Ex. 10518) May 17, 2010 Email, T. Lockett to T. Hill (Dep. Ex. 8865)
Ex. 22 Ex. 23 Ex. 24 Ex. 25 Ex. 26 Ex. 27
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INTRODUCTION As oil gushed from the Macondo 252 well during Spring 2010, BP told Congress, the National Incident Command, and the public that the flow rate was 5,000 barrels of oil per day (BOPD). Meanwhile, company engineers were performing internal analyses showing that the
flow rate could be up to 20 times greater. BP pled guilty to the crime of obstructing justice by providing false and misleading flow rate information to Congress during the response. The company provided that same false
information to the National Incident Command by email and to the public through filings with the SEC. BPs false flow rate statements were developed under the direction of the companys The letters to
attorneys, as BP itself explained to the Magistrate Judge in multiple filings.
Congress that formed the basis of BPs guilty plea were the results of a process organized and directed by lawyers. Ex. 1, July 19, 2012 Letter from R. Gasaway to Judge Shushan, Dkt. No. 7009 (July 19, 2012 Letter) at 5. Under blackletter law, BPs use of attorneys to aid in its wrongdoing destroys any privilege for the communications BP used in its criminal or fraudulent activity. This bedrock
principle of privilege law is known as the crime-fraud exception to the attorney-client privilege. As the Supreme Court has explained, [a] client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told. Clark v. United States, 289 U.S. 1, 15 (1933) (emphasis added). The exception applies
whether the attorneys had knowledge of the crime or not. See e.g., In re Grand Jury Proceedings, 680 F.2d 1026, 1028 (5th Cir. 1982) (The crime or fraud exception applies even where the attorney is completely unaware that his advice is sought in furtherance of such an improper purpose.).
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After BPs guilty plea was accepted by Judge Vance, the United States moved to compel production of all documents related to the preparation of BPs fraudulent statements to government officials and the public regarding the flow rate, specifically (1) fraudulent communications to Congress on May 4, 2010 and fraudulent letters to Congressman Markey dated May 24 and June 25, 2010; (2) a fraudulent statement to Federal On-Scene Coordinator Admiral Mary Landry on May 19, 2010; and (3) fraudulent securities statements on April 29 and 30 and May 4, 2010 (collectively referred to here as the Crime-Fraud Communications). On April 30, 2013, the Magistrate Judge ruled on the United States motion by ordering production of 22 documents sought by the United States and finding that 84 additional documents identified by BP as related to the Crime-Fraud Communications did not fall within the crime-fraud exception.1 The United States submits that the Magistrate Judge used the incorrect legal standard and applied the standard incorrectly. analysis in the Fifth Circuit. A court reviewing a crime-fraud assertion conducts a two-step
First, the reviewing court determines whether the party asserting
crime-fraud has made a prima facie case that its opponent intended to further an ongoing crime or fraud during the attorney-client relationship. In re Grand Jury Subpoena, 419 F.3d 329, 346 (5th Cir. 2005). Once that showing is made, the crime-fraud exception applies. Id.
The second step addresses which documents must be produced those reasonably related to the furtherance of the ongoing or future crime or fraud at issue. Id. at 347. The United States respectfully submits that the Magistrate Judge made three errors in her opinion. At the first step of the analysis, she applied the law to the facts incorrectly in concluding that the United States failed to make a prima facie showing of a crime or fraud with respect to BPs false statements to
1
BP identified a total of documents as related to the Crime-Fraud Communications. BP itself proposed to produce of those documents, while another had already been produced. See Ex. 2, BP Crime-Fraud Privilege Logs. The United States and Transocean contend that BP has addressed only a small subset of the documents responsive to the motion. The question is still being briefed before the Magistrate Judge.
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the SEC.
At the second step of the analysis, she both used an incorrect legal standard not
briefed by the Parties and then applied it incorrectly by using the involvement of a particular BP vice president as a proxy for whether the document was reasonably related to the furtherance of the crime or fraud. The Magistrate Judges decision was contrary to law, and the United States respectfully requests that the Court overturn that decision and grant the United States motion to compel in full. Specifically, the United States requests that the Court order the production of all The
documents reasonably related to the preparation of the Crime-Fraud Communications.
Parties would then work with the Magistrate Judge to define the universe of documents affected. We incorporate by reference our filings before the Magistrate Judge. See Dkt. No. 8417 and 8868 (unredacted versions to be provided as Attachments 1 and 2 to the unredacted version of this brief). BACKGROUND The Court is well aware of what happened at the Macondo well, and we will not revisit the basics of the blowout or the response here. Over the 87 days that followed the blowout, BP attempted to stop the flow of oil under the oversight of the United States. Most of the source
control and collection attempts BP employed were dependent in part or in whole on the flow rate from the well. See Ex. 3, Robert Sanders Deposition at 127:20-128:3, 212:10-213:1; Ex. 4,
Thad Allen Deposition at 514:16-516:22; Ex. 5, Simon Bishop Deposition at 230:6-12, 242:25-243:9, 486:5-10, 488:24-489:7; Ex. 6, Trevor Hill Deposition at 293:17-294:12. In
order to effectively oversee these flow-dependent response efforts, the United States needed truthful and accurate flow information. In the legal proceedings that BP knew would follow,
substantial civil penalties can be assessed under the Clean Water Act on a per barrel basis for oil
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discharged in the Gulf of Mexico in connection with activities under the Outer Continental Shelf Lands Act. I. 33 U.S.C. 1321(b)(7)(D).2
The Criminal And Fraudulent Communications At Issue A. False and Misleading Statements to the Public through SEC Filings In that filing,
One week after the rig exploded, BP submitted a form 6-K to the SEC.
BP stated that the oil flow was currently estimated at up to 5,000 barrels a day. Ex. 7, April 29, 2010 Form 6-K at 6 (emphasis added). The following day, BP issued a press release as a SEC Form 6-K and included the flow estimate as up to 5,000 barrels a day. Ex. 8, April 30, 2010 Form 6-K. On May 4, 2010, BP issued another press release as a Form 6-K and stated that current estimates by [NOAA] suggest some 5,000 barrels . . . of oil per day are escaping from the well. Ex. 9, May 4, 2010 Form 6-K. The SEC filed a civil complaint against BP that alleged material misrepresentations and omissions in the three Form 6-K statements. Securities and Exchange Commission v. BP p.l.c., Civil Action No. 2:12-cv-02774 (E.D. La.), Complaint, Dkt. No. 1. pay $525 million to settle the SEC civil action. Id. Dkt. No. 2-1. B. False and Misleading Statements to Congress 1. May 4, 2010 presentation to Congressional Subcommittee claiming flow rate was 5,000 BOPD On May 4, 2010, BP Vice President David Rainey made a presentation to a House Subcommittee (Subcommittee) in which he stated that 5,000 BOPD was the best estimate of the flow rate, and that the worst case discharge was 60,000 BOPD. See Ex. 10, May 14, 2010 Letter E. Markey to L. Mackay. Subcommittee Chairman Markey responded by letter on May 14, 2010. BP later agreed to
By way of example, penalties of up to $4,300 per barrel of oil can be assessed in the event BP is found grossly negligent or to have exercised willful misconduct. Thus the difference between a spill of 5,000 BOPD and 50,000 BOPD is nearly $200 million in penalty liability per day.
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Chairman Markey noted that other, public estimates of the spill were greater than BPs alleged worst case discharge figure, and stated, I am concerned that an underestimation of the flow may be impeding the ability to solve the leak and handle management of the disaster. We have already had one estimate that grossly underestimated the amount of oil being released and we cannot afford to have another. Id. (emphasis added). The import of Chairman Markeys letter was that BP misled the Subcommittee in the May 4, 2010 briefing. 2. May 24, 2010 letter to Congressional Subcommittee claiming flow rate was 5,000 BOPD BP responded with a letter signed by BP attorney Kevin Bailey to Chairman Markey on May 24, 2010. In that letter, BP represented that the 5,000 BOPD flow rate was the most scientifically informed judgment and that subsequent flow rate estimates had yielded consistent results. Ex. 11, May 24, 2010 Letter, K. Bailey to E. Markey, Dep. Ex. 1651. In
fact, BP later admitted that its own internal estimates at the time showed the flow rate was as high as 96,000 BOPD. Ex. 12, United States v. BP Exploration and Production, Inc., Criminal
Case 2:12-cr-00292-SSV-DEK (E.D. La.) Dkt. No. 2 (BP Guilty Plea Agreement) at 16-17. In pleading guilty to obstruction of Congress based in part upon the May 24 letter, BP stated that it agree[d] that if the case were to proceed to trial, the Government could establish beyond a reasonable doubt the following facts related to the May 24 letter: On or about May 24, 2010, in the Eastern District of Louisiana and elsewhere, BP did corruptly, that is, with an improper purpose, endeavor to influence, obstruct, and impede the due and proper exercise of the power of inquiry under which an inquiry and investigation was being had by a Committee of the United States House of Representatives into the amount of oil flowing from the Macondo Well (flow rate) through the following omissions and false and misleading statements in its May 24, 2010 response (Markey Response) to the Committee on Energy and Commerce: 1. BP, through a former vice president, withheld information and documents relating to multiple flow-rate estimates prepared by BP engineers that showed flow rates far higher than 5,000 BOPD, including as high as 96,000 BOPD -5-
2.
BP, through a former vice president, withheld information and documents relating to internal flow-rate estimates he prepared using the Bonn Agreement analysis, that showed flow rates far higher than 5,000 BOPD, and that went as high as 92,000 BOPD. BP, through a former vice president, falsely represented that the flow-rate estimates included in the Response were the product of the generally-accepted ASTM methodology. At the time that this false representation was made, BPs former vice president knew that those estimates were the product of a methodology he devised after, among other things, a review of a Wikipedia entry about oil spill estimation. BP, through a former vice president, falsely represented that the flow-rate estimates included in the Markey Response had played an important part in Unified Commands decision on April 28, 2010, to raise its own flow-rate estimate to 5,000 BOPD. At the time this false representation was made, BPs former vice president knew that those flow-rate estimates had not played an important part in Unified Commands decision to raise its flow-rate estimate and had not even been distributed outside of BP prior to that decision. BP falsely suggested, in its May 24, 2010 letter, that the Unified Commands flow rate estimate of 5,000 barrels of oil per day (BOPD) was the most scientifically informed judgment and that subsequent flow rate estimates had yielded consistent results. In fact, as set forth above, BP had multiple internal documents with flow rate estimates that were significantly greater than 5,000 BOPD that it did not share with the Unified Command.
3.
4.
5.
Ex. 12, BP Guilty Plea Agreement at 16-17 (emphasis added). 3. June 25, 2010 letter to Congressional Subcommittee misstating basis for BPs worst case discharge estimate On June 25, 2010, BP sent another letter to the Subcommittee, this time from David Nagle, who at the time led BPs government relations group. In the June 25 letter, BP attempted to explain why the company had told the Subcommittee on May 4 that the worst case discharge was 60,000 BOPD, while later saying it was 100,000 BOPD. The June 25 letter stated that the 100,000 BOPD worst case discharge estimate was developed after subsequent pressure data was obtained from the BOP stack. Ex. 13, June 25, 2010 Letter, D. Nagle to E. Markey at 1. This
statement too was false, as BP admitted in its plea agreement:
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On or about June 25, 2010, in a BP letter to Congressman Markey, BPs former vice president inserted language that falsely stated that BPs worst case discharge estimate was raised from 60,000 BOPD to 100,000 BOPD after subsequent pressure data was obtained from the BOP stack. At the time this false representation was made, BPs former vice president knew that the 100,000 BOPD figure was not first derived after subsequent pressure data had been obtained, but instead, he had been aware of a 100,000 BOPD worst case discharge since as early as on or about April 21, 2010. Ex. 12, BP Guilty Plea Agreement at 17-18. C. False and Misleading Statements to the National Incident Command
In the midst of BPs false statements to Congress, it provided the same false information to the National Incident Command. On May 17, 2010, then-Rear Admiral Mary Landry, the
Federal On-Scene Coordinator (FOSC) for the Macondo oil spill appealed to Doug Suttles, BP America Inc.s Chief Operating Officer and BPs representative to the Unified Command, to provide the Unified Command with full access to all information related to the oil discharge rate as soon as possible, in order to help us continue to hone our efforts to respond most effectively to the spill and to mitigate the ongoing threat to our environment and coastal communities. See Ex. 14, May 17, 2010 Letter, Admiral Landry to D. Suttles. Meanwhile, on May 16, 2010,
Mr. Suttles took the Rainey Memo and sent it to Admiral Landry by email on May 19, 2010. Ex. 18, May 19, 2010 Email, D. Suttles to Admiral Landry, Dep. Ex. 3218. letter to the Subcommittee. The Rainey Memo was also submitted as part of BPs May 24
As described above, BP admitted that it obstructed justice by -7-
omitting relevant internal information and making false representations in the May 24 letter, including the Rainey Memo. II. BP Used Attorneys To Direct Its Crime-Fraud Communications There can be no doubt that BPs attorneys played a leading role in the Crime-Fraud Communications BP repeatedly told the Magistrate Judge precisely that. In defending against
earlier privilege challenges before the Magistrate Judge, BP made clear that the companys responses to Congressional inquiries were led and directed by attorneys: Congressional requests received by the company in this time period were handled through a process organized and directed by lawyers in which information was gathered from personnel within the company. Congressional responses were then drafted in a collaborative process led by WilmerHale and involving both in-house and external lawyers along with appropriate BP personnel. Although not every communication regarding the effort to collect information and to respond to requests involved the direct participation of an attorney, the overall process was a lawyer-directed effort seeking to ensure that BP received appropriate legal advice with respect to the requests and the companys responses. Dkt. No. 7009 at 5 (emphasis added).
III.
BPs Internal Flow Rate Estimates Were Far Higher Than Those Shared With The Government And The Public At the same time BP was telling Congress, the National Incident Command, and the
public that the flow rate was 5,000 BOPD, BP was performing internal modeling showing the flow rate could be as high as 100,000 BOPD. BP employees recognized the difference between
the companys public statements and its private modeling. On May 15, 2010, then company Vice President Mike Mason, who led various well performance and modeling efforts during the blowout response, wrote an email to BP Chief Executive Andy Inglis warning against standing behind the 5,000 BPD estimate. Ex. 19, May 15, 2010 Email, M. Mason to A. Inglis, Dep. Ex. 3220. Mason added that our modelling shows that this well could be making anything up to ~ -8-
100,000 bopd depending on a number of unknown variables . . . We can make the case for 5,000 bopd only based on certain assumptions. Id. Mr. Masons email was forwarded to BP General Counsel John Lynch Jr. Id.
While Mr. Masons email to the top of the company hierarchy was perhaps the most dramatic internal repudiation of the BPs public 5,000 BOPD flow rate, the companys engineers were conducting work from the very first days of the spill that made clear that the flow rate could be much higher than BP was telling the government or the public.
Ex. 22, Timothy Lockett Deposition at 29:22-30:1; 89:22-91:24; Ex. 23, April 27, 2010 Email, T. Lockett to F. Saidi, Dep. Ex. 9445.
On May 3, 2010 the day before Mr. Raineys presentation to the Subcommittee offering 5,000 BOPD as the best estimate Ex. 24, May 3, 2010 Email, T. Lockett to T. Hill, Dep. Ex. 9446. Ex. 22, Lockett Dep. at 155:4-156:16; 425:23-428:24; Ex. 24, May 3, 2010 Email, T. Lockett to T. Hill, Dep. Ex. 9446 at 3.3
We focus here on estimates predating the SEC 6-Ks and the May 4 presentations. Further modeling showing similar results continued until the end of the response. BP has claimed privilege over any flow rate calculations performed after July 17, 2010.
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Notably, when BPs source control efforts required a best estimate of flow rate for internal modeling work, the company used not 5,000 but 70,000 BOPD. Early in the response, BP hired Stress Engineering to perform computation fluid dynamics modeling (known as CFD) in order to consider the potential for the BOP on BOP source control option. Ex. 25, Charles Holt Deposition at 261:1-18. Stress Engineering needed a flow rate estimate to do the work, and Stress Engineering Principal Christopher Matice stated that the computer runs would take 10-12 hours each. He added: We should start with our best [flow rate] estimate. Ex. 26, April 30, 2010 Email Exchange, Dep. Ex. 10518 (emphasis added). At that point, BP employee Richard Simpson replied: For the first run, use 70,000 bpd[.] For the second run, 35,000 bpd[.] Third run, 17,500 bpd. Id. In that April 30, 2010 exchange, BP demonstrates that, when BP needed a flow rate estimate for important work, the company used a much higher flow rate than it was reporting to the public. As Mr. Lockett said in a May 17 email about Top Kill modeling, the 5,000 BOPD number had little if no origin. . . . From all the different ways we have looked at flowrate, [5,000 BOPD] would appear to err on the low side. Ex. 27, May 17, 2010 Email, T. Lockett to T. Hill, Dep. Ex. 8865. IV. Procedural History BP has previously settled charges related to its misleading statements to Congress and the public. On October 3, 2013, BP settled a civil complaint filed by the SEC that alleged that BPs
April 29, April 30, and May 4 SEC Form 6-K statements included material misrepresentations and omissions. Securities and Exchange Commission v. BP p.l.c., Civil Action The United States filed a criminal case against BP
No. 2:12-cv-02774 (E.D. La.), Dkt. No. 2-1.
on November 15, 2012. United States v. BP Exploration and Production, Inc., Criminal Case 2:12-cr-00292-SSV-DEK (E.D. La.). 2013. - 10 Judge Vance accepted BPs guilty plea on January 29,
On January 30, 2013, the United States filed the instant motion to compel. 8417. Transocean joined the motion.
Dkt. No.
In its opposition, BP effectively conceded documents in
which Mr. Rainey played an active role and that related to the communications addressed in BPs guilty plea (called Category A documents) were subject to the crime-fraud exception. Dkt.
No. 8715 (BP Opposition) at 1-2. On April 4, 2013, the Magistrate Judge ordered that subset of the documents to be produced. Dkt. No. 9115. As part of its response, BP also prepared lists of the withheld documents that the company contends are related to each of the Crime-Fraud Communications, which it provided to the Magistrate Judge and later to the Parties. After ordering production of the Category A documents, the Magistrate Judge reviewed the remaining documents on BPs lists in camera, and issued a ruling on the motion on April 30, 2013. Dkt. No. 9592 (Magistrate Judge Opinion). The Magistrate Judge ordered BP to
produce 22 documents based on the application of the crime-fraud doctrine, and found another 84 documents remained privileged. Also in that ruling, the Magistrate Judge directed the Parties to conduct further briefing on whether BP identified the entire universe of related documents in the lists it provided to the Court. The United States and Transocean contend that BP has vastly underreported the documents potentially responsive to the motion to compel. For
instance, BP failed to consider any documents in the custodial files of internal or outside counsel despite the fact that the very workstreams at issue were organized and directed by counsel. The briefing on that issue will be complete on May 24, 2013, to be followed by a ruling from the Magistrate Judge. The United States motion to appeal addresses the Magistrate Judges decision applying the crime-fraud doctrine to documents identified by BP. Whether BP identified the full
universe of documents related to the Crime-Fraud Communications is an issue still before the Magistrate Judge. - 11 -
ARGUMENT When a party seeks to involve its attorney in an ongoing or future crime or fraud, any privilege is destroyed. For the crime-fraud exception to apply, the party challenging privilege must show two things: evidence of a crime or fraud and that the underlying communications relate to the illicit activity. The United States has made that showing here for all documents
reasonably related to preparation of the Crime-Fraud Communications, and all such documents should be ordered produced. The Magistrate Judge found that the United States had demonstrated a crime or fraud for all Crime-Fraud Communications except those made to the SEC. However, she found that
many of the documents identified by BP as related to preparation of the Crime-Fraud Communications did not qualify for the exception. three errors that merit reversal. In doing so, the Magistrate Judge made
First, all of the Crime-Fraud Communications involved BP
publically providing a flow rate estimate that bore little relation to the companys best, internal estimates. All of the Crime-Fraud Communications, including the SEC 6-K statements, should qualify for application of the crime-fraud doctrine. Second, and even more important, the
Magistrate Judge used the wrong standard for determining whether a given document was sufficiently related to the crime or fraud to qualify for the crime-fraud exception. Finally, she
applied the legal standard incorrectly at step two by focusing on Mr. Raineys involvement with the documents, rather than how they were related to the Crime-Fraud Communications at issue. Evaluated correctly, all documents related to the preparation of the Crime-Fraud Communications should be produced, including all the documents identified by BP and others yet to be identified.
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I.
Applicable Legal Standards A. Standard for Appeal of a Magistrate Judge Decision Rulings on non-dispositive motions
The standard of review for this appeal is de novo.
by magistrate judges are reviewed under a clearly erroneous or contrary to law standard. 28 U.S.C. 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). Under that standard, issues of law are Matter of Toyota of
reviewed de novo and findings of fact under the clearly erroneous standard. Jefferson, Inc., 14 F.3d 1088, 1090 (5th Cir. 1994).
Mixed questions of law and fact, including Payne v. United States, 289
the application of the law to the facts, are also reviewed de novo.
F.3d 377, 381 (5th Cir. 2002) (describing standard of review for appellate court reviewing district court decision); Sandhu v. Bransom, 932 F. Supp. 822, 826 (N.D. Tex. 1996) (citing Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986)) (describing standard of review for district court reviewing magistrate decision). The appeal involves questions of law and questions of the application of law to facts. The standard of review for both is de novo. B. Standard Applicable To The Crime-Fraud Exception
The crime-fraud exception is a generally recognized exception to the attorney-client privilege. United States v. Zolin, 491 U.S. 554, 556 (1989).4 Once established, the
crime-fraud exception renders communications that otherwise were privileged subject to disclosure the privilege takes flight if the relation is abused. Clark v. United States, 289 U.S. 1, 15 (1933). As the Court noted in Zolin, courts long have viewed [the attorney-client
privileges] central concern as one to encourage full and frank communication between attorneys
Although generally referred to as an exception to attorney-client privilege and work product doctrine, the crime-fraud exception is not truly an exception. Instead, it is an exclusion of activity from the protective reach of the privilege given that the attorney-client privilege does not attach in the first instance if the legal services are sought for the purpose of committing or furthering a crime or a tort. See, e.g., Rambus, Inc. v. Infineon Technologies AG, 222 F.R.D. 280, 287 (E.D. Va. 2004). Nevertheless, because most cases use the term crime-fraud exception, we use that term here.
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and their clients and thereby promote broader public interests in the observance of law and administration of justice. 491 U.S. at 562 (internal quotes and citations omitted). This Id.
rationale applies to clients making full disclosure to their attorneys of past wrongdoings. (emphasis added, internal quotes and citations omitted).
However, the reason for the protection
of attorney-client communications ceas[es] to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. (emphasis added, internal quotes and citations omitted). Id. at 562-63
Where the attorney-client privilege See, e.g., United
communication relates to future wrongdoing, the privilege is destroyed.
States v. Ballard, 779 F.2d 287, 292-293 (5th Cir. 1987) (Once the party seeking disclosure makes a prima facie case that the attorney-client relationship was used to promote an intended criminal activity, the confidences within the relationship are no longer shielded.). Demonstrating that the crime-fraud doctrine applies to a particular communication requires a two-step analysis. First, the party challenging privilege must make a prima facie
case that the client intended to further an ongoing crime or fraud during the attorney-client relationship.5 In re Grand Jury Subpoena, 419 F.3d 329, 346 (5th Cir. 2005). Once that
showing is made, the crime-fraud doctrine applies.
Id. The second element establishes
which communications must be produced as a result of the crime or fraud shown in the first step. The communications captured by the crime-fraud exception are those that hold some valid relationship to the prima facie violation such that they reasonably relate to the fraudulent activity. Id. (internal citations and quotation marks omitted). To summarize the analysis, the
The communications need not facilitate a crime per se in order to be subject the crime-fraud exception. The exception applies to the facilitation of wrongdoing that is not specifically criminal or fraudulent. Deborah F. Buckman, Annotation, Crime-Fraud Exception Work Product Privilege in Federal Courts, 178 A.L.R. Fed. 87, 2[a] (2002). The exception can include crime, fraud, or other type of misconduct fundamentally inconsistent with the basic premises of the adversary system, Coleman v. American Broadcasting Cos., 106 F.R.D. 201, 208 (D.D.C. 1985) (quoting In re Sealed Case, 676 F.2d 793, 812 (D.C. Cir. 1982)).
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first question is whether the crime-fraud doctrine applies at all. addresses what set of communications must be produced. II.
If it does, the second question
The Crime-Fraud Exception Is Triggered By BPs Knowingly False Flow Rate Statements The initial question is whether the United States has provided prima facie evidence that a
crime or fraud occurred.
The Magistrate Judge found that the United States made a prima facie
case that the May 4, May 24, and June 25 communications to Congress were criminal or fraudulent, along with the May 19 email to Admiral Landry.6 She found that the United States Properly
did not make a prima facie case of crime or fraud for the SEC Form 6-K statements.
considered, the evidence shows that each of the Crime-Fraud Communications, including the SEC Form 6-K statements, was in fact a criminal or fraudulent misstatement satisfying the prima facie requirement. The prima facie evidence requirement is not an onerous one. In order to make the
necessary prima facie showing for the application of the crime-fraud exception . . . , the government must produce evidence such as will suffice until contradicted and overcome by other evidence . . . a case which has proceeded upon sufficient proof to that stage where it will support [a] finding if evidence to the contrary is disregarded. Grand Jury Subpoena, 419 F.3d at
336-37 (upholding application of the crime-fraud exception where, based on the government's submitted affidavits and exhibits and the in camera examination of [attorney], the district court found that the government had made a prima facie showing . . . .). This standard is easily met for most of the Crime-Fraud Communications. BP admitted
that it committed a crime in the May 24 and June 25 letters to Congress by making false statements and omitting information.
6
The May 19 email to Admiral Landry included some of
The Magistrate Judge did not explicitly rule that the prima facie case of crime or fraud was satisfied for the May 19 email, but her opinion proceeds as though it was. See Magistrate Judge Opinion at 38-39. The lack of a statement that the prima facie requirement was satisfied appears to be an oversight.
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the same false statements and omissions and provided them to the National Incident Command. BPs brief opposing the motion to compel essentially conceded that the United States satisfied the prima facie requirement for showing the May 24 and June 25 letters to Congress and the May 19 email to Admiral Landry were criminal or fraudulent. BP Opposition at 1-2 (stating
willingness to produce some documents related to preparation of May 19 email and May 24 and June 25 letters). The Magistrate Judge agreed that the United States met the prima facie Magistrate Judge Opinion at 22, 31.
requirement for those documents.
Turning to the communications for which BP challenged application of the crime-fraud doctrine, the May 4 presentation to Congress and the SEC Form 6-Ks, BPs own internal flow rate communications demonstrate that it mislead Congress and the public by presenting numbers flagrantly at odds with its best modeling. As described above, from the first days of the spill, In BPs
BPs engineers were calculating that the flow rate could be as high as 100,000 BOPD.
internal analyses, the 5,000 BOPD estimate was, at best, the very lowest point in a range of potential values. As BP employee Mr. Lockett said at the time, the 5,000 BOPD number had
little if no origin. . . . From all the different ways we have looked at flowrate, [5,000 BOPD] would appear to err on the low side. Ex. 27, May 17, 2010 Email, T. Lockett to T. Hill, Dep. Ex. 8865. But when BP spoke publically about flow rate, the company took its lowest estimate and called it the companys best estimate. The Magistrate Judge found that the United States had
proved the critical fact: BPs internal documents demonstrate that its flow rate estimates were several times higher than 5,000 BOPD. Magistrate Judge Opinion at 40. The dichotomy between BPs internal flow rate estimates and its public statements satisfies the prima facie requirement of showing a crime or fraud. Just as BP pled guilty to
making false statements in and critical omissions from its letters to Congress, it made the same false statements and omissions in its May 4 presentation and SEC Form 6-Ks. - 16 The Magistrate
Judge found that the United States had made its prima facie case for the May 4 presentation, but not the SEC Form 6-Ks. Magistrate Judge Opinion at 20, 41. In both cases, the United States
showed that BPs actual knowledge of the flow rate was at odds with its public statements, misleading Congress and the investing public in violation of law.7 In its opposition, BP failed
to provide any contrary evidence or explanation for the gulf between its public and internal estimates. The Court should find that the prima facie requirement of a crime or fraud has been satisfied for all the Crime-Fraud Communications. III. All Documents Reasonably Related To Preparation of the Crime-Fraud Communications Should Be Produced Once a prima facie showing is made, the question becomes what universe of documents must be produced. On this point, the Parties agreed on the appropriate standard. Both BP and
the United States cited the 5th Circuits formulation: [T]he proper scope of the crime-fraud exception must necessarily be limited to those attorney-client communications and work products reasonably related to the furtherance of the ongoing or future crime or fraud at issue. Grand Jury Subpoena, 419 F.3d at 347 (emphasis added); see Dkt. No. 8417 at 17 (US Initial Brief citing Grand Jury Subpoena); BP Opposition at 10 (same). However, the Magistrate
Judge erred by using a different standard for determining which documents were related. A. The Documents Sought by the United States Meet the Standard
The second element of the crime-fraud inquiry takes the fact of a crime or fraud as a given and establishes what materials must be produced as a result. As the Fifth Circuit has
explained, once the prima facie showing of crime or fraud is made, the crime-fraud doctrine applies. Grand Jury Subpoena, 419 F.3d at 346. The remaining question is simply what
documents it applies to. A communication is related where there is some valid relationship
BP pled guilty to obstruction of Congress. Its misleading statements to the SEC could violate Sections 10(b) and 13(a) of the Securities Exchange Act of 1934 and Rules 10b-5, 12b-20, and 13a-6 thereunder. See 15 U.S.C. 78j(b) & 78m(a); 17 C.F.R. 240.10b-5, 240.12b-20, & 240.13a-16; see also Securities and Exchange Commission v. BP p.l.c., Civil Action No. 2:12-cv-02774 (E.D. La.), Complaint, Dkt. No. 1.
7
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between the crime or fraud and the material sought. In re International Systems & Controls Corp. Securities Litigation., 693 F.2d 1235, 1242 (5th Cir. 1982) (quoted in Grand Jury Subpoena, 419 F.3d at 336 n.7). The Fifth Circuit makes clear that the exact formulation of a test for relatedness is less important than an understanding of what the [scope] test must accomplish; easy differentiation between material for which the law should not furnish the protections of a privilege and material for which a privilege should be respected. F.3d at 346-47 (internal citations and quotation marks omitted). Grand Jury Subpoena, 419 The breadth of what qualifies
as related must also be considered in light of the alternative before the Fifth Circuit. In drawing the line that there must be some valid relationship between the communication and the illicit act, the Fifth Circuit was responding to the proposal that the entire privilege be destroyed. Id. at 346. The United States is not seeking a broad repudiation of BPs attorney-client privilege. Instead, we seek only documents related8 to the preparation of the Crime-Fraud Communications. This is perfectly consistent with controlling Fifth Circuit precedent. The
courts United States v. Dyer case involved the defendants conversations with two lawyers, and a letter that the district court determined was criminal. 722 F.2d 174, 177-79 (5th Cir. 1983).
The Dyer court found that the criminal purpose of the letter meant that the communications with the lawyer who helped draft that letter were not privileged, but the communications with a separate lawyer who did not participate in the meeting concerning the criminal letter remained privileged. Id. at 177. In describing Dyer, the Fifth Circuit has since explained that the events immediately surrounding the preparation of the letter at issue fall within the crime-fraud exception. Grand Jury Subpoena, 419 F.3d at 347 (emphasis added). That
The Magistrate Judge noted that the United States briefing often said related rather than reasonably related. Magistre Judge Opinion at 14 n.6. We did simply out of convenience. To the extent there is a substantive difference by including reasonably, we agree that reasonably related is the standard.
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description neatly captures the issue here: BP has numerous privileged communications, only some of which related to the Crime-Fraud Communications. It is those documents immediately surrounding the preparation of the [communication] at issue that the United States seeks here. For each of the Crime-Fraud Communications, BP deliberately made false statements and omissions regarding flow rate. Each document that was part of the process of drafting and
discussing those Crime-Fraud Communications therefore is in furtherance of the crime or fraud, because those documents were part of the process of preparing the final, fraudulent letter. document related to the preparation of the Crime-Fraud Communications satisfies the Fifth Circuit standard for production. B. The Magistrate Judge Employed the Incorrect Standard Each
The Magistrate Judge erred at the second step of the crime-fraud analysis by adding a new intent requirement, contrary to Fifth Circuit precedent and the Parties briefing. After addressing whether the prima facie case of crime or fraud was made, the Magistrate Judge conducted two additional inquiries for each document: (1) whether it was related to the violation; and (2) whether there is probable cause to believe that the particular communication with counsel was intended in some way to facilitate or to conceal the criminal activity. Magistrate Judge Opinion at 21. In essence, the Magistrate Judge took the inquiry to be made at step 1, This is incorrect as a matter of law.
and applied it to each document at step 2.
First, as described above, the Magistrate Judges standard deviates significantly from Grand Jury Supoena and its predecessors. The Magistrate Judge relied on the Second Circuits
Richard Roe case for the intent component of her standard. But Richard Roe appears to be discussing the first step of the crime-fraud analysis: whether there was evidence of a crime or fraud at all. As the court there explained, the precise factual basis of the alleged crime or fraud - 19 -
is unclear. 68 F.3d 38, 41 (2d Cir. 1995).9
The Fifth Circuit makes clear that a party need
only show that a crime or fraud was attempted and not that each document demonstrated independent intent to further the illicit act. Grand Jury Subpoena (2005), 419 F.3d at 346 (in addition to an initial showing that the client intended to further an ongoing or future crime or fraud during the attorney-client representation, a secondary showing of some valid relationship between the work product under subpoena and the prima facie violation is required) (internal quotation marks and citations omitted). As Magistrate Judge Knowles has explained, evidence
of the intent to deceive is part of the prima facie case. Southern Scrap Metal Co.. v. Fleming, No. Civ.A. 012554, 2003 WL 21474479, at *2 (E.D.La. June 18, 2003). Once that showing is made, the challenging party need only show that the communication bears a relationship to the alleged crime or fraud. Id. Applying the intent standard to each individual document also proves incompatible with two fundamental aspects of crime-fraud case law. First, precedent establishes that attorneys
need not be aware of the crime or fraud for the doctrine to apply. See, e.g., In re Grand Jury Proceedings, 680 F.2d 1026, 1028 (5th Cir. 1982) (The crime or fraud exception applies even where the attorney is completely unaware that his advice is sought in furtherance of such an improper purpose.); In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir. 1994) (The test is whether the clients purpose is the furtherance of a future fraud or crime.) (emphasis in original, citations omitted). Second, case law shows that a judge need not perform an in
camera review before ordering production of documents. United States v. Kaplan, No. 02 CR. 883(DAB), 2003 WL 22880914, at *10 (S.D.N.Y. Dec. 5, 2003) (Zolin and its progeny make clear that in camera review is a discretionary alternative to establishing the crime-fraud
9
The Richard Roe case is very different from the facts of this matter, as a second appellate opinion makes clear. In Richard Roe, the government had alleged that the defense of the underlying lawsuit itself was fraudulent, the briefs were filed under seal and not even shared with the parties, and portions of the decision itself were redacted. 168 F.3d 69, 71 (2nd Cir. 1999). To the extent the opinion can be read more broadly to encompass the second step of the inquiry, Richard Roe would be in conflict with the controlling Fifth Circuit case law described in the text.
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exception with independent evidence.). employed by the Magistrate Judge here.
These principles are incompatible with the standard The first principle means that documents may not
show a criminal intent because the author might not even know about the crime or fraud, but an attorneys innocence does not mean the document does not fall within the crime-fraud doctrine. The second principle means that the document-by-document search for intent cannot be required because no individual document review is required at all. C. The Magistrate Judge Erred in Using Mr. Raineys Involvement to Determine whether Individual Documents Must Be Produced
In its brief to the Magistrate Judge, BP attempted to lay the blame for its false statements and omissions entirely at the feet of Mr. Rainey. See, e.g., BP Opposition at 4-6. In an apparent consequence of using the wrong standard for the second step of the crime-fraud analysis, the Magistrate Judge relies on Mr. Raineys involvement in determining whether the crime-fraud exception applies to individual documents. Some documents she orders produced
by saying, With the active involvement of Rainey, these documents reasonably relate to the furtherance of the ongoing crime or fraud at issue. Magistrate Judge Opinion at 29. For
others, she upholds the privilege, saying Rainey was not an active participant. Id. at 30. This reliance on Mr. Raineys involvement reflects two errors: use of the incorrect legal standard and the misapplication of that standard to the facts. First, relying on Mr. Raineys involvement to determine applicability of the exception only makes sense using the Magistrate Judges incorrect standard for judging whether individual documents should be produced. As described above, the issue for individual documents is Mr. Raineys involvement is
simply whether they are reasonably related to the illicit activity. irrelevant to that question.
In fact, BPs own crime-fraud document logs answer the question
by describing each document on the list as being related to the preparation one of the Crime-Fraud Communications. - 21 -
Ex. 2, BP Crime-Fraud Privilege Logs. Under the appropriate legal test for the second step of the crime-fraud analysis, BPs logs themselves demonstrate that the documents are sufficiently related to be produced. Second, Mr. Raineys involvement cannot serve as a proxy for criminal intent because the evidence shows that Mr. Rainey is not the sole instrument of the obstruction. It was BP the corporation that pled guilty to obstruction of justice, based largely on a letter signed by BP attorney Kevin Bailey and a process that BP has maintained was managed and led by its lawyers. BP admitted that the company did corruptly, that is, with an improper purpose, endeavor to influence, obstruct, and impede the due and proper exercise of the power of inquiry [into the flow rate] through the following omissions and false and misleading statements in its May 24, 2010 [letter]. Ex. 12, BP Guilty Plea Agreement at 16-17. One of the express misstatements
BP admitted was falsely suggest[ing] that the 5,000 BOPD estimate was the most scientifically informed judgment and that subsequent flow rate estimates had yielded consistent results. Id. That statement was in the letter signed by Mr. Bailey, not the attached Rainey Memo. Moreover, BP itself has explained that outside counsel from WilmerHale led
the process of responding to Congressional requests and that the overall process was a lawyer-directed effort. Dkt. No. 7009 at 5. CONCLUSION BP made false statements and omissions to Congress, the National Incident Command, the SEC, and the public regarding the flow rate from the well during the response. Now that BP has pled guilty to the crime of obstruction of justice and produced the documents demonstrating that its internal estimates were several times higher than its public statements, there can be no - 22 -
privilege for any documents reasonably related to the preparation of those Crime-Fraud Communications. The United States moved to compel production of all documents reasonably related to the preparation of BPs fraudulent statements and representations to United States government officials, BPs shareholders, and the public regarding the flow rate, specifically (1) fraudulent communications to Congress on May 4, 2010 and fraudulent letters to Congressman Markey dated May 24 and June 25, 2010; (2) a fraudulent statement to Federal On-Scene Coordinator Admiral Mary Landry on May 19, 2010; and (3) fraudulent securities statements on April 29 and 30 and May 4, 2010. We respectfully request this Court reverse the Magistrate Judges April
30, 2013 opinion and find that (1) the prima facie showing of a crime or fraud has been made for BPs flow rate statements addressed in the motion and (2) that all documents reasonably related to the preparation of those statements should be produced, including all documents identified by BP so far and documents identified after the conclusion of the briefing on scope before the Magistrate Judge.
Respectfully submitted,
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BRIAN HAUCK Deputy Assistant Attorney General Civil Division PETER FROST Directory, Torts Branch, Civil Division Admiralty and Aviation STEPHEN G. FLYNN Assistant Director MICHELLE DELEMARRE SHARON SHUTLER JESSICA SULLIVAN JESSICA MCCLELLAN MALINDA LAWRENCE Trial Attorneys
IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division SARAH HIMMELHOCH Senior Litigation Counsel NANCY FLICKINGER SCOTT CERNICH THOMAS BENSON Senior Attorneys DEANNA CHANG A. NATHANIEL CHAKERES JUDY HARVEY ABIGAIL ANDRE RACHEL HANKEY BETHANY ENGEL Trial Attorneys /s/ Steven ORourke STEVEN OROURKE Senior Attorney Environmental Enforcement Section U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044 Telephone: 202-514-2779 Facsimile: 202-514-2583 E-mail: steve.orourke@usdoj.gov DANA J. BOENTE United States Attorney Eastern District of Louisiana SHARON D. SMITH Assistant United States Attorney Eastern District of Louisiana 650 Poydras Street, Suite 1600 New Orleans, LA 70130 Telephone: (504) 680-3000 Facsimile: (504) 680-3184 E-mail: sharon.d.smith@usdoj.gov
/s/ R. Michael Underhill R. MICHAEL UNDERHILL, T.A. Attorney in Charge, West Coast Office Torts Branch, Civil Division U.S. Department of Justice 7-5395 Federal Bldg., Box 36028 450 Golden Gate Avenue San Francisco, CA 94102-3463 Telephone: 415-436-6648 Facsimile: 415-436-6632 E-mail: mike.underhill@usdoj.gov
Attorneys for the UNITED STATES OF AMERICA
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CERTIFICATE OF SERVICE I hereby certify that the above and foregoing document has been served on all counsel by electronically uploading the same to Lexis Nexis File & Serve in accordance with Pretrial Order No. 12, and that the foregoing was electronically filed with the Clerk of Court of the United States District Court for the Eastern District of Louisiana by using the CM/ECF System, which will send a notice of electronic filing in accordance with the procedures established in MDL 2179. Date: May 15, 2013. /s/ Steve ORourke U.S. Department of Justice
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ____________________________________ IN RE: OIL SPILL BY THE OIL MDL No. 2179 RIG DEEPWATER HORIZON IN THE GULF OF MEXICO, SECTION: J ON APRIL 20, 2010 JUDGE BARBIER ___________________________________ MAG. JUDGE SHUSHAN THIS DOCUMENT RELATES TO ALL CASES ORDER ON THE UNITED STATES MOTION TO APPEAL DECISION OF THE MAGISTRATE JUDGE REGARDING CRIME-FRAUD MOTION TO COMPEL Upon consideration of the briefs of the Parties concerning the United States Motion to Appeal Decision of the Magistrate Judge Regarding Crime-Fraud Motion to Compel, and the attachments thereto, this Court finds that the United States has demonstrated that the crime-fraud exception applies, and the United States motion to compel should be granted in full. Therefore, BP shall produce all documents on which it previously asserted privilege, regardless of whether those documents were included on a privilege log, that relate to the development of (1) BPs statements to Congress on May 4, 2010, and BPs correspondence with Congress on May 24, 2010 and June 25, 2010; (2) the May 19, 2010 email from Doug Suttles to Adm. Landry; and (3) the Forms 6-K furnished to the SEC on April 29 and 30 and May 4, 2010 by BP p.l.c.
IT IS SO ORDERED this ________ day of _________, 2013, at New Orleans, Louisiana.
____________________________________ THE HONORABLE CARL J. BARBIER UNITED STATES DISTRICT JUDGE
Exhibit 1
Case Case 2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document 10002-3 7009 Filed Filed 07/30/12 05/15/13 Page Page 12 ofof 10 11
655 Fifteenth Street, N.W. Washington, D.C. 20005 Robert R. Gasaway To Call Writer Directly: (202) 879-5175 robert.gasaway@kirkland.com (202) 879-5000 www.kirkland.com Facsimile: (202) 879-5200
July 19, 2012 By Electronic Mail The Honorable Sally Shushan United States District Court Eastern District of Louisiana United States Courthouse 500 Poydras Street New Orleans, LA 70130 Re: MDL 2179 United States Challenges to Schedule I Privilege Documents; Order Regarding In Camera Inspection of BPs Claimed Privilege in Schedule I
Dear Judge Shushan: On July 13, 2012, the Court ruled on the United States, Halliburtons, Transoceans, and Louisianas challenges to BPs assertion of attorney-client privilege and work product protection. (Dkt. No. 6904.) As discussed on the recent calls of July 17 and July 19, there were several documents for which BP asserted attorney-client privilege and work-product protection, but the United States challenged only BPs assertion of work product, and the Court did not address BPs attorneyclient claim. For example, for In Camera Submission No. 28, a document for which BP asserted attorney-client privilege, the Court stated that BP does not argue that the document is protected by the attorney-client privilege. (Dkt. No. 6904, at 27.) BP noted its attorney-client privilege assertion for No. 28 in an attachment BP submitted to the Court and the parties via Rob Gasaways email of June 26, 2012, at 11:42 pm CT (the Attachments).1 (See Ex. 1, Document Showing BPs Claim of Attorney Client Privilege on No. 28, Included as Attachment to R.
1
BP noted all privileges claimed over each of the challenged documents in the three attachments it submitted to the Court on June 27, 2012: BP Responses to US-LA AC Challenges (documents for which the United States and Louisiana had challenged attorney-client privilege); BP Responses to US-LA WP Challenges (documents for which the United States and Louisiana had challenged work product protection); and BP Responses to HESI-TO Challenges (documents for which Halliburton and Transocean had challenged attorney-client privilege or work product protection). BPs attorney-client privilege and work product protection assertions are included here as Exhibit 1.
Chicago
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Shanghai
The Honorable Sally Shushan July 19, 2012 Page 2
Gasaways Email on June 26, 2012). However, considering the large size of the parties submissions and attachments, the Court may not have noticed all the privilege assertions in this attachment, thus explaining the Courts statement that BP does not argue that the document is protected by the attorney-client privilege. (Dkt. No. 6904, at 27.) On this basis, the Court ordered BP to produce No. 28, although the attorney-client privilege assertion had not been addressed. Similarly, for a number of other documents for which BP asserted both attorney-client privilege and work-product protection, but the United States challenged only work product, the Court did not address the attorney-client privilege issue, and ordered that at least some2 of the documents be produced. The documents at issue are Nos. 26, 28, 30, 45, 46, 51, and 54. Citing Document No. 28, the United States asserts in its letter of July 18: This appears to be an isolated issue related to this one document. Respectfully, this is speculative. The fact that the Court did not state that BP did not assert a privilege claim does not mean that the Court considered such a claim. For each document, only the Court knows whether it considered (1) the challenges asserted by the U.S.; or (2) also all of BPs privilege assertions, which were attached to Rob Gasaways email of June 26, 2012, at 11:42 pm CT (and are attached hereto as Exhibit 1). Given the procedural history of the representative privilege challenges, there is a significant difference between the United States challenges to representative documents and BPs assertions. The Courts May 11, 2012 Order limited the United States to 50 representative challenge documents for attorney-client privilege, and 50 for work product production. (Dkt. No. 6510, at 4.) On June 16, 2012 the United States provided with its brief a list of 81 representative documents, and broke those documents into two non-overlapping lists representative challenges to BPs claims of attorney-client privilege and representative challenges to BPs claims of work-product protection. (See Exhibit 2, Document Listing Representative Challenges by the United States.) The United States could have covered its bases by challenging both attorney-client privilege and work-product protection for each documentwhich would have limited the number of BP documents at issue to approximately 50but the United States chose not to. Under the alternative strategy the United States adopted, it covered a significantly greater range of BP documents (81 instead of 50), but could not challenge both attorney-client privilege and work-product protection for each sample document, given the limits of the May 11, 2012 Order.
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It is not always clear. Compare Order at 29 (Document 51 is not protected from disclosure.) with id. (Document 54 is not protected from disclosure by the work-product doctrine.) and Order at 26 (For the reasons discussed with Document 25, Document 46 is not protected as work-product.).
On the parties July 18 call, the United States claimed for the first time that for each of the 81 representative documents, the United States on June 16 actually challenged all privileges asserted by BP, even where the United States expressly challenged only work product for a particular document. For example, Exhibit 2 shows that on June 16 the United States only expressly challenged BPs work-product assertion for Doc. No. 28, although the United States now claims it was contemporaneously challenging attorney-client privilege for Doc. No. 28 and every other document on the list. BP disagrees with the United States position. If the United States on June 16 challenged attorney-client privilege even where it only expressly challenged work-product protection, this would have meant that the United States exceeded the Courts Order by challenging attorney-client privilege for 81 representative documents, and by challenging work product for 81 representative documents. But the Courts Order only permitted 50 representative challenges for work product, and 50 for attorney-client privilege. The United States should not be permitted to have more representative challenges than the Courts Order allowed. In any event, the United States indicated on the call this morning that it does challenge BPs assertion of attorney-client privilege with respect to Doc. No. 28, and believes the balance of the documents should be produced. Assuming arguendo that the Court considers the submission of representative attorney-client challenges to these documents to be appropriate as part of the pre-extrapolation process, BP requests that the Court proceed to the merits of the claims and rule that documents 26, 28, 30, 45, 46, 51, and 54 are attorney-client privileged.3 (BP suggests that the United States be permitted to file a response on July 24, 2012, and that BP be permitted to reply on July 27.) I. Documents for Which BP Claimed Attorney-Client Privilege But The U.S. Did Not Challenge Attorney-Client Privilege A. Documents Relating to Congressional Responses
The following are documents relating to Congressional responses for which: (1) BP claimed attorney-client privilege and work-product protection (as set forth in one of BPs Attachments submitted with Mr. Gasaways June 26 email, which is attached as Exhibit 1 hereto); (2) the United States challenged only work-product protection (Exhibit 2); and (3) the Court ruled only on the work-product challenge and did not address the claim of attorney-client privilege.
In that event, BP also requests that the Court rule that Document No. 11 is protected by the work-product doctrine.
Document No. 30 May 22, 2010 email from Jeffrey Morgheim to Trevor Hill. (Morgheims role as the primary person tasked to assist the lawyers working on congressional responses is discussed below.) The redacted portion of this document contains a request from Morgheim, which he again indicates is being made at the direction of counsel for BP as part of the process of gathering information relevant to the May 24 response to Congressman Markey. This communication is covered by the attorney-client privilege. Document No. 46 May 22, 2010 email chain between Morgheim and Hill. The initial email in this chain is the same as Document No. 30. Following the request that Morgheim made on behalf of counsel in connection with the Markey response, Hill provided information for Morgheim to evaluate for potential use in constructing the response to Congressman Markey. Document No. 26 Hard copy document from David Raineys custodial files. The redacted portion of this document is on the first page; it contains Raineys draft answer to Request No. 4 in Congressman Markeys May 14 request. Rainey drafted this answer after Morgheim emailed him for assistance with the Markey response; in the email to Rainey, Morgheim explicitly stated that he was working at the direction of counsel for BP. Rainey sent his draft answers, prepared following the request from counsel transmitted by Morgheim, to Rainey, Kirkland & Ellis attorney Brian Kavanaugh, BP attorney Frank Monago, and BP employee Doug Suttles. Raineys draft answers were then forwarded to other attorneys working on the May 24 response to Congressman Markey. Document No. 45 May 25, 2010 email chain. In the initial email in the chain, in connection with preparing a response to Congressman Cassidy, Morgheim wrote to Mike Mason, with a copy to Kirkland & Ellis attorney Mark Nomellini, with the subject line: ATTORNEY-CLIENT PRIVELEDGE [sic] Urgent: Congressional response and a request [o]n direction of counsel. Mason then forwarded the request Morgheim made on behalf of BPs counsel to Hill. Document No. 28 June 22, 2010 email chain. A WilmerHale attorney, Tonya Robinson, emailed a draft letter regarding Representative Markeys release of two pages related to worst-case discharge calculations that were attachments to BPs May 24 response to Congressman Markey. Robinson sent the draft letter for comment to a BP attorney, Kevin Bailey, and three BP non-attorneys, Elizabeth Reicherts, Morgheim, and Kathleen Lucas, all of whom were involved in the process of preparing congressional responses. The email also copied two other
WilmerHale attorneys. The chain includes responses from Lucas and Bailey providing comments on the draft letter. In the final email, Morgheim forwarded the email chain and the draft response to another BP employee, Rainey, and requested that Rainey also review the letter. The drafting and review of a letter to Congress by and at the direction of counsel falls within the protections of the attorney-client privilege. Below, in summary form, are key points regarding why Document Nos. 26, 28, 30, 45, and 46 are attorney-client privileged (assuming again that the Court does not adopt BPs argument that the U.S. was limited to 50 representative challenges for attorney-client privilege): During the relevant period in which these documents were created, oil was still flowing from the damaged Macondo well. BPs energies were focused primarily on efforts to cap the well and contain the spill. Engineers with relevant expertise, along with 40,000 other BP employees and personnel from the government and other companies in the oil industry, were working around-the-clock in that effort. At the same time, BP was receiving a steady stream of requests for information from members of Congress and other public officials. In May 2010 alone, BP received more than 70 requests from members or committees of Congress, and the Company was already facing dozens of lawsuits and many government investigations. BP retained several law firms, including WilmerHale and Kirkland & Ellis, shortly after the incident to assist in various respects with responding to these many lawsuits, investigations, and information requests. Congressional requests received by the company in this time period were handled through a process organized and directed by lawyers in which information was gathered from personnel within the company. Congressional responses were then drafted in a collaborative process led by WilmerHale and involving both in-house and external lawyers along with appropriate BP personnel. Although not every communication regarding the effort to collect information and to respond to requests involved the direct participation of an attorney, the overall process was a lawyer-directed effort seeking to ensure that BP received appropriate legal advice with respect to the requests and the companys responses. Given the number and urgency of the requests BP received, lawyers at and for the company had to rely on non-attorney BP employees, who were familiar with BPs operations and personnel, to facilitate the collection of potentially responsive information. Communications by and to these individuals as part of that process were made for the purpose of securing or providing legal advice and are covered by the
The Honorable Sally Shushan July 19, 2012 Page 6 attorney-client privilege, just as they would be if made directly by or to an attorney.4 Most relevant to the documents discussed herein, Jeffrey Morgheim was the primary nonattorney who was tasked to work with counsel in connection with congressional responses. At the time, Morgheim was BPs Director of Climate Change and had no independent reason to participate in the effort aside from his efforts to assist the attorneys coordinating these responses, including the May 24 letter to Congressman Markey that BP sent in response to a May 14 request from the Congressman. In his role as an agent of the attorneys, Morgheim contacted BP employees who may have had relevant information to respond to Markeys May 14 request, including David Rainey and Trevor Hill. Rainey was at the time BP vice president for Gulf of Mexico Exploration and BPs Deputy Incident Commander within the Unified Command, and Hill was heavily involved in efforts to address the spill; thus, Morgheims participation helped to ensure that responding to Congress did not interfere with BPs primary mission of stopping the leak and containing the spill. B. Document Nos. 51 and 54
The documents listed in Section A above relate to Congressional responses. There are two non-Congressional documents (Document Nos. 51 and 54) for which: (1) BP claimed attorney-client privilege and work product protection (see Exhibit 1); (2) the United States
See, e.g., United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961) (given the complexities of modern existence, attorney-client privilege must include all the persons who act as the attorneys agents). See also, e.g., Gucci America, Inc., v. Guess?, Inc., 271 F.R.D. 58, 70-74 (S.D.N.Y. 2010) (discussing principles and collecting cases regarding roles of in-house counsel, outside counsel, and non-attorney agents for purposes of attorney-client privilege); id. at 71 (privilege applied where employee was deputized to gather information from [client] employees to assist in the litigation); Ferko v. National Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 134 (E.D. Tex. 2003) (when an attorney direct[s] the client . . . to tell his story in the first instance to an [agent, in this case, an accountant] engaged by the lawyer . . . so that the lawyer may better give legal advice, communications by the client reasonably related to th[ose] purpose[s] ought to fall within the privilege. (quoting Kovel, 296 F.2d at 922 (certain alterations in original) (internal quotation and citation omitted)). Even where a document or information is itself not privileged, BP is entitled to protect from disclosure the fact that a particular piece of information or document was shared with the attorney for the purpose of seeking legal advice or collected by one client-representative from another for the same reason. See, e.g., United States v. Hankins, 631 F.2d 360, 364-65 (5th Cir. 1980) (attorney-client privilege prevented disclosure of what documents client sent lawyer for examination, even where no privilege was claimed over the documents themselves).
challenged only work-product protection (see Exhibit 2); and (3) the Court ruled only on the work-product challenge and did not address the claim of attorney-client privilege. Document No. 51 - September 21, 2010 draft of a presentation by Doug Suttles to the National Commission. Document No. 51A is an email from a BP attorney, Stephen Palmer, circulating an earlier draft version of the presentation to attorneys from BP, WilmerHale, and Kirkland & Ellis. Mr. Palmer states: I am attaching the draft written statement for Dougs appearance before the Presidential Commission . . . . Document No. 54 - BP sought approval from the Coast Guard for the Top Hat procedure and another option. Document No. 54 is a draft of the letter which was prepared by BP attorney Karen Westall. The Court ruled that Document 54 is not protected from disclosure by the work-product doctrine. (July 13 Order at 29.)
When BP employees were required to make official responses to the many inquiries from other government entities, such as the U.S. Coast Guard or the Presidential Commission, they sometimes sought legal advice from both BP attorneys and outside counsel. BP attorneys and outside counsel were intimately involved in drafting and revising such submissions. Such drafts, as in the case of Document Nos. 51 and 54, are covered by the attorney-client privilege under applicable law.5 II. Document For Which BP Claimed Work-Product Protection But the United States Did Not Challenge Work Product
The Court has ruled that the Flow Rate Team was an attorney-directed project that began on July 18, 2010, and that it was an attorney-client privileged investigation entitled to work product protection. (Dkt. No. 6904, at 14-24.)
5
See, e.g., July 13, 2012 Order, (Dkt. No. 6904), at 27 (An attorneys editorial changes to such documents intended for eventual public disclosure should be privilege protected); In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 802-803 (E.D. La. 2007) (noting that, in the context of responding to warning notices from a Government regulator, attorney-client privilege covers (1) the attorneys drafts of those responses, (2) communications in which the attorney sought information from corporate employees in her efforts to prepare those drafts, and (3) the responsive comments solicited from the corporate employees on the drafts. Following the trigger of the warning letter, every communication to and from the attorney and among corporate employees that were primarily in furtherance of legal assistance on that matter were considered privileged, even if the initial draft of the response was prepared for the lawyer by a non-lawyer.) (emphasis added) (footnotes omitted).
The following is a document for which: (1) BP claimed attorney-client privilege and work product protection (see Exhibit 1); (2) the United States challenged only attorney-client privilege (see Exhibit 2); and (3) the Court ruled only on the attorney-client privilege challenge, but not on BPs assertion of work product protection. Document No. 11 - Document No. 11A is an October 15, 2010, email from Tim Lockett to Kurt Mix, copying BP attorney Stephen Palmer, and BP non-attorneys Trevor Hill and Farah Saidi. Hill and Saidi were initial members of the privileged flow rate estimation team, and Lockett joined later. The email contains [p]rivileged and confidential in the subject line, and Lockett asked Mix for information about top kill mud for the flow rate work he was performing with Hill and Saidi. Document No. 11B includes a reply to 11A from Mix, indicating that Daryl Patterson and Bonsall Wilton may have relevant information. It demonstrates that a meeting between these individuals was scheduled for that day. Document No. 11 is an October 18-20, 2010, email string beginning with an email from Lockett to Mix, including Patterson and Wilton, and copying Saidi, Hill, and Palmer, concerning Top Kill mud. It references a previous discussion. It includes a specific request for information from Add Energy. On October 18, 2010, Mix emailed Ole B. Rygg of Add Energy (a third-party contractor for BP in the effort to control the well), highlighting Locketts specific request for information from Add Energy. On October 20, Rygg replied. BP asserted work product, but the U.S. did not challenge BPs work product assertion, and the Court did not address BPs work product assertion in its ruling.
Assuming arguendo that a work-product protection challenge to this document is properly included in the representative sample, the work-product assertion should be sustained: In not adopting BPs attorney-client privilege assertion, the Court ruled that any privilege was waived because the document was shared with Add Energy, a thirdparty contractor to BP. (Dkt. No. 6904, at 22.) However, unlike the attorneyclient privilege, the work product doctrine is not waived by virtue of a document being shared with a third party: [M]ore than once, the Fifth Circuit has held that the mere voluntary disclosure of work-product to a third person is insufficient in itself to waive the work product privilege. PBC Mgmt., Inc. v. Roberson, No. 10798, 2010 WL 4553507, at *2 n.2 (E.D. La. Oct. 28, 2010) (citing In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994); Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989).
Case Case 2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SSDocument Document 10002-3 7009 Filed Filed07/30/12 05/15/13 Page Page910 of of 1011
Indeed, the Court found that the United States has not waived work product protection for certain communications with third-party members of the FRTG plume team (not all of whom, to BPs knowledge, were then retained experts) and over which the United States claimed work-product protection. See, e.g., Dkt. No. 6905, at 2 (discussing NOA023-001598). The Courts Order described NOA023-001598 as an email string concerning a lawyers request for a category of information. Similarly, Document No. 11 is a request for a category of information for use in preparation for litigation by Tim Lockett, an internal BP expert, who copies two attorneys. That request is then forwarded to a third-party contractor for BP. * * *
For the foregoing reasons, we respectfully request that the Court find that BP does not have to produce representative documents 11, 26, 28, 30, 45, 46, 51, and 54. We would be pleased to answer any questions the Court has about this letter at the Courts convenience.
Sincerely,
Robert R. Gasaway Exhibits cc (via electronic mail): R. Michael Underhill Steven ORourke Sarah D. Himmelhoch Scott M. Cernich A. Nathaniel Chakeres Bethany Engel Thomas A. Benson Joel M. Gross Allison B. Rumsey Don K. Haycraft Plaintiffs Liaison Counsel Defense Liaison Counsel (dsc2179@liskow.com)
Case Case 2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document 10002-3 7009 Filed Filed 07/30/12 05/15/13 Page Page 10 11 ofof 10 11
Exhibit 2
to
UNITED STATES= MEMORANDUM IN SUPPORT OF ITS MOTION TO APPEAL DECISION OF THE MAGISTRATE JUDGE REGARDING CRIME-FRAUD MOTION TO COMPEL (Dkt. No. 9592)
[PENDING MOTION TO FILE UNDER SEAL]

The United States has moved to attach Exhibit 2 as a sealed appendix per Paragraph 8.B of MDL No. 2179 Pre-Trial Order # 13 (Order Protecting Confidentiality), which mandates that documents which have been designated as Confidential or Highly Confidential must be filed under seal as an appendix to the instrument that refers to them.
Exhibit 3
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: OIL SPILL ) BY THE OIL RIG ) "DEEPWATER HORIZON" IN ) THE GULF OF MEXICO, ON ) APRIL 20, 2010 ) ) MDL NO. 2179 SECTION "J" JUDGE BARBIER MAG. JUDGE SHUSHAN
***************** VOLUME 1 *****************
30(b)(6) Deposition of Robert Sanders, BP, Inc., taken at the Pan-American Building, 601 Poydras Street, 11th Floor, New Orleans, Louisiana, 70130, on the 5th day of November, 2012.
Worldwide Court Reporters, Inc. PURSUANT TO CONFIDENTIALITY ORDER
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MR. BENTSEN: scope of the designation. MR. EPPEL: A.
Objection, beyond the
Objection, form.
I was not party to all of the particular From the relief well
calculations of flow rate.
perspective, we take a range of pump rates that are calculated by other parties as our design basis. Q. (By Ms. Himmelhoch) So you -- BP, in
an -- analyzing the flow rate of hydrocarbons from the MC252, relied on other parties? MR. EPPEL: MR. BENTSEN: scope. A. I wasn't party to all of the type of I know Objection, form. Objection, beyond the
calculations that were done and by whom.
that there were calculations done by a variety of entities for the flow -- for -- not for the flow rate, but for the pump rate. Q. (By Ms. Himmelhoch) In your over 30 years
of experience, is it your understanding that in order to identify the pump rate, you need to assume a flow rate from the well you are trying to dym -- dynamically kill? MR. EPPEL: Objection, form.
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MR. BENTSEN:
Objection, form.
Objection, beyond the scope. A. Q. It is one of the inputs, I believe. (By Ms. Himmelhoch) And where did the
input for the analysis for the relief well for the MC252 -- let me start that question again. That was horrible. Did BP assume any particular flow rate in conducting the analysis of how to perform the dynamic kill using relief wells? MR. EPPEL: MR. BENTSEN: scope. kill. A. Again, I was not party to all of the -Objection, form. Objection, beyond the
The witness is not designated on bottom
the interactions and calculations of bottomhole flowing pressure or rates. Q. (By Ms. Himmelhoch) Are you telling me
that BP did not do any analysis of the flow rate of hydrocarbons from the MC252 Well when it was designing the dynamic kill or the relief wells? MR. EPPEL: MR. BENTSEN: Objection, form. Objection, form.
Objection, beyond the scope. A. I'm not saying that. I'm saying I was
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includes relief wells. A. Again, the use that I believe I'm here to
represent is the dynamic kill, the rates that were predicted, the pressures that were predicted, how we executed the relief well, and any potential dynamic kill that we would execute, together with the cement isolation. Q. I'm sorry. You believe you're here to
testify on beha -- on behalf of BP with respect to the dynamic kill? A. The -MR. BENTSEN: Objection, scope.
He's not designated to talk about any kill operations. MR. WILLIAMS: I -- I'm just looking
at his answer to my last question. MR. BENTSEN: I understand, but what
he's designated is what he's designated on. Q. (By Mr. Williams) Okay. I think we all
agree you're designated to testify about relief wells and Topic 12 with respect to relief wells. So I'm taking that to be: Did BP use flow rates
in designing, analyzing, considering, or executing relief wells? A. Flow rates would have been a -- a
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component of a dynamic kill calculation. Q. Would flow rates have been a component in
any other way, of a relief well? MR. EPPEL: MR. BENTSEN: A. Object to form. Same objection.
Outside of the dynamic kill, I -- I
wouldn't -- wouldn't know, sir. Q. (By Mr. Williams) So as BP's Corporate
Representative on Topic 12 with respect to the relief wells, you're not aware of any analysis, calculations, assumptions, or modeling of the flow rate of hydrocarbons from the MC252 Well undertaken by or on behalf of BP? A. I don't have specific knowledge of all
the different methods and techniques used to calculate flow rates. What I am aware of is what
I noted in the technical summary of rates to dynamically kill the well, that would use flow rate as one of its inputs. Q. Just to be clear, and I apologize if I'm Was there any analysis of
belaboring a point:
flow rate conducted by or on behalf of BP in connection with the analysis, consideration, or execution of the relief wells? MR. BENTSEN: Objection, form.
Exhibit 4
***************** VOLUME 2 *****************
Continuation of the 30(b)(6) Deposition of Admiral Thad William Allen, United States of America, taken at the Pan-American Building, 601 Poydras Street, 11th Floor, New Orleans, Louisiana, 70130, on the 25th day of September, 2012.
514
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MR. FROST: MR. BROCK: A. that. Q. (By Mr. Li) Okay.
Object to form. Form.
I -- I'm not sure should be my answer at
On June 10th, you
announced that the Federal Government had -well, strike that. On June 10th, you announced that, as the NIC, you had directed a Federal Scientific Group to develop an estimate of how much oil was flowing from BP's well, correct? A. Q. Correct. And as -- as we've already discussed,
this is the Flow Rate Technical Group? A. Q. Correct. And you said that developing an accurate
and scientifically grounded oil flow rate information is vital, correct? MR. FROST: A. Q. Correct. (By Mr. Li) You said it was vital both in Object to form.
regards to the continued response and recovery, correct? A. Q. Correct. And by "response," you meant source
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control, well control, all of the various responses that the -- that you would employ to deal with the well, correct? MR. FROST: MR. BROCK: MR. FROST: A. Yeah. Object to form. Objection compound. Compound.
I would -- I would separate this
from well control and the response to the well. Q. word. A. Q. A. Q. A. I -What did you mean by it? I -- I said that, myself, earlier. Yeah. So what did you mean by it? (By Mr. Li) "Response" is a very broad
What I said earlier was, flow rate became
important in terms of trying to size the equipment needed for the surface response in terms of skimming equipment boom, in situ burning equipment, and that sort of thing. And,
therefore, sooner or later, you had to reconcile supply and demand with the amount of oil that was out there versus the equipment that would be needed to deal with it. In that -- that portion
of the response, flow rate is consequential. Q. Okay. Was flow rate also consequential
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for source control options that you might select? A. As it relates to the pressure in the
well, and the various procedures associated with capping containment, and so forth, and the potential integrity of the wellbore itself, yes. Q. Okay. It was also important to whether
various source control methods would -- strike that. Whether various well control methods would succeed, correct? MR. BROCK: MR. FROST: A. Objection, form. Object to form.
As I said earlier, it was -- it was
consequential, in that the different interventions at the well had different affects on the pressure inside the well, and, therefore, the integrity of the wellbore. Q. A. Q. (By Mr. Li) Okay. From that standpoint, yes. So I -- so it was important -- the flow
rate was important in determining whether certain well control techniques would succeed, correct? MR. BROCK: A. Objection, form.
Again, I'm not an Expert in well control.
I think there's a difference in flow rate and
Exhibit 5
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: OIL SPILL BY THE OIL RIG "DEEPWATER HORIZON" IN THE GULF OF MEXICO, ON APRIL 20, 2010 ) ) ) ) ) ) MDL NO. 2179 SECTION "J" JUDGE BARBIER MAG. JUDGE SHUSHAN
***************** VOLUME 1 *****************
Deposition of 30(b)(6) DEPOSITION OF BP, BY AND THROUGH SIMON BISHOP, taken at Pan-American Building, 601 Poydras Street, 11th Floor, New Orleans, Louisiana, 70130, on the 27th day of September, 2012.
230
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02:36
Q.
Okay.
And you recall another
possible explanation was loss of integrity in the wellbore? A. Would be consistent with a lower
5 6 7 8 9
wellhead pressure, yes, sir. Q. Okay. So it would be a good
idea to know whether that low wellhead pressure was a result of a loss of integrity or a high flow rate; is that fair? MR. ROMAN: A. Object to the form.
02:37
10 11 12 13 14
I personally agree that that
would be a very important condition. Q. (BY MR. CHAKERES) Okay. Let us
look at -- before we go there, did you review in the -- and concede, no need to -- to object on this basis -- that the actual shut-in protocol for -- for shutting in the well, did you -- did you review that procedure? topic. it. A. Q. No, sir, I have not seen it. Okay. So you're not familiar It's not within your 30(b)(6)
02:37
15 16 17 18 19
02:37
20 21 22 23 24
I'm -- I'm just asking if you've seen
with the precise order of operations in shutting in the well?
02:37
25
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02:58
here.
I would need information -- more
information to make a proper comment on this, sir. Q. (BY MR. CHAKERES) Well, there
5 6 7 8 9
is the -- the phrase "Estimates of flowrate will be made"; is there not? A. Q. There is, sir. Okay. Is one possible read of
this phrase that estimates of flow rate will be made? MR. ROMAN: beyond the scope. A. It certainly states here Object to the form, also
02:58
10 11 12 13 14
estimates of flow rate so you're correct. Q. (BY MR. CHAKERES) Okay. And I
02:58
15 16 17 18 19
think we just stated before that if there is going to be a low shut-in pressure observed when the well was shut-in, that knowing what the flow rate was would be helpful in differentiating whether a low shut-in pressure was a result of high flow rate or well integrity failure? MR. ROMAN: A. Q. Same objections.
02:58
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Yes, sir. (BY MR. CHAKERES) Okay. And so
02:58
25
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02:59
it would make sense to estimate flow rate at the time of shut-in to potentially rule out or -- or provide notice of well integrity problems? MR. ROMAN: Q. A. Same objections. Right?
5 6 7 8 9
(BY MR. CHAKERES)
So if it would be possible to
measure flow rate, that, obviously, would be a very valuable piece of information. Q. Okay. Do you have an opinion
02:59
10 11 12 13 14
about whether it was possible to measure flow rate once the capping stack was installed? MR. ROMAN: Object to the form;
objection, way beyond the scope. A. Sir, this is not something that
02:59
15 16 17 18 19
I -- I undertake in my -- my personal discipline; therefore, I would find it very difficult to comment on that to my satisfaction. Q. (BY MR. CHAKERES) I don't know
02:59
20 21 22 23 24
if that quite -- my question -- my question is do you know if it was possible to -- to calculate flow rate when the capping stack was -- was put on? MR. ROMAN: Same -- same objections.
02:59
25
***************** VOLUME 2 *****************
Deposition of 30(b)(6) DEPOSITION OF BP, BY AND THROUGH SIMON BISHOP, taken at Pan-American Building, 601 Poydras Street, 11th Floor, New Orleans, Louisiana, 70130, on the 28th day of September, 2012.
486
1 2 3 4
11:54
you're far away from zero, how would you know how long to extend the line? Did I read that correctly? A. Q. Yes, sir, you did. And does this just reflect the
5 6 7 8 9
fact that had BP known the flow rate at that point, it would have been a useful data point in interpreting shut-in top hole pressure? MR. ROMAN: A. Q. Object; form and scope.
11:54
10 11 12 13 14
Yes, sir. (BY MR. CHAKERES) Okay. And
I'd like to now go to Tab 112, which I think you have in the other binder. And do you
have in front of you an e-mail -- the top e-mail from Mr. Merrill to Kelly McAughan and others dated July 20th, 2010? A. Q. Yes, sir, I do. Okay. We're going to go ahead And first
11:55
15 16 17 18 19
and mark this as Exhibit 9340.
11:55
20 21 22 23 24
ask, do you recall reviewing this e-mail in preparation for your deposition? A. Q. A. May I just read it, sir, please? Go ahead. Sorry, I don't recall seeing
11:56
25
this specific e-mail before, but the -- I've
488
1 2 3 4
11:57
Did I read that correctly? A. Q. Yes, sir, you did. And does this reflect that had
BP known the flow rate at that point in time, it would inform its ability to interpret the pressure response of the reservoir after shut-in? MR. ROMAN: A. Objection; form and scope.
5 6 7 8 9
Sir, in the pressure transient
11:57
10 11 12 13 14
analysis that's being referenced here, then the -- an input for that pressure transient analysis is rated in order to be able to determine reservoir properties, sir. Q. (BY MR. CHAKERES) And it would
11:58
15 16 17 18 19
be -- it would be beneficial if BP had as much confidence as possible in that input; is that correct? MR. ROMAN: A. Same objections.
Sir, if a -- if a rate were
11:58
20 21 22 23 24
available, that would allow pressure transient analysis that is -- with that rate as an input to provide information about the reservoir. Q. (BY MR. CHAKERES) And
11:58
25
understanding more precisely the actual rate
489
1 2 3 4
11:58
of flow would likely lead to a better pressure transient analysis than having to assume a range of rates; is that fair? MR. ROMAN: A. Same objections.
5 6 7 8 9
As a -- as an input, the more
accurate the input, clearly the more accurate the output. Q. you. I'd like now if you could go with me to Tab 87. And we did mark that Yes. So, yes, I agree. (BY MR. CHAKERES) Okay, thank
11:58
10 11 12 13 14
document as an exhibit?
Do you have in front of you an e-mail from Kate Baker to Roberta Wilson, Trevor Hill, and Paul Tooms, dated July 4, 2010? A. Q. Yes, sir, I do. Okay. We'll go ahead and mark And
11:59
15 16 17 18 19
that as document -- as Exhibit No. 9341.
11:59
20 21 22 23 24
I'll go ahead and ask if you're familiar with this e-mail chain. A. sir. I've read it, sir, thank you. Q. And are you familiar with this Again, if I may read it, please,
12:01
25
Exhibit 6
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: OIL SPILL ) ) ) ) ) ) JUDGE BARBIER MAG. JUDGE SHUSHAN SECTION "J" MDL NO. 2179
BY THE OIL RIG "DEEPWATER HORIZON" IN THE GULF OF MEXICO, ON APRIL 20, 2010
******************* VOLUME 1 ******************
Deposition of TREVOR J. HILL, taken at Kirkland & Ellis International, 30 St. Mary Axe, 22nd Floor, London EC3A 8AF, England, United Kingdom, on the 14th of January, 2013.
293
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q.
(BY MR. CERNICH)
Even though the E-mail
references flow rate estimation work? MS. KARIS: A. Yeah. Object to the form.
I believe that title originated
with the E-mails before I was on the circulation list. Q. (BY MR. CERNICH) Okay. But -- but --
again, you never told anyone -- you never told Mr. Leonard that you were not engaged in flow rate estimation work; is that right? MS. KARIS: A. Q. Object to the form.
As a direct statement, no. (BY MR. CERNICH) You would -- you would
acknowledge that the influence of flow rate in the assessment of the likely overall or -- I'm sorry. Let me start that again. Strike that.
You would acknowledge the influence of flow rate in the assessment of the likely overall effectiveness of source control methods, right? MS. KARIS: A. Q. Yes. Yes. Okay. And so flow rate Object to form.
(BY MR. CERNICH)
was relevant to -- to source control? A. Flow rate was relevant to source control.
294
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q. A. Q.
Throughout the -- throughout the response? That's correct. And it was also relevant at the time of a
well integrity test, correct? A. At the -- yes. At the time of the test,
it was relevant. Q. Okay. Because having an idea of -- of the
flow rate would provide you with a better opportunity to -- to characterize the -- the reservoir and the depletion from the reservoir; is that right? A. Q. It -- it's a contributing factor, yes. Okay. And depletion of the reservoir was
a -- was a critical issue during the well integrity test, correct? MS. AVERGUN: A. Objection to form.
It's outside of my direct subject area, so
I -- to use the word "critical," I don't know that it was a factor. Q. (BY MR. CERNICH) Okay. Because in order
to try to determine whether the -- the shut-in wellhead pressure reflected a -- an integral well, you -- you -- you needed to characterize the -the depletion of the -- the reservoir. So, in
other words, if the reservoir had depleted
Exhibit 7
Case Case2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document8715-1 10002-9Filed Filed 02/28/13 05/15/13Page Page 59 2of of167 30
Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549
Form 6-K
Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934
for the period ended 31 March 2010 Commission File Number 1-06262
BP p.l.c.
(Translation of registrants name into English) 1 ST JAMESS SQUARE, LONDON, SW1Y 4PD, ENGLAND (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F Form 40-F o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes o No
If Yes is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82THIS REPORT ON FORM 6-K SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THE PROSPECTUS INCLUDED IN THE REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-157906) OF BP CAPITAL MARKETS p.l.c. AND BP p.l.c.; THE PROSPECTUS INCLUDED IN THE REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-155798) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-79399) OF BP p.l.c.,THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-67206) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-103924) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-102583) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-123482) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-123483) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-131583) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-131584) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-132619) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-146868) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-146870) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-146873) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-149778) OF BP p.l.c., AND TO BE A PART THEREOF FROM THE DATE ON WHICH THIS REPORT IS FURNISHED, TO THE EXTENT NOT SUPERSEDED BY DOCUMENTS OR REPORTS SUBSEQUENTLY FILED OR FURNISHED.
Case Case2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document8715-1 10002-9Filed Filed 02/28/13 05/15/13Page Page 60 3of of167 30
BP p.l.c. AND SUBSIDIARIES FORM 6-K FOR THE PERIOD ENDED 31 MARCH 2010(a)
Page
1. Managements Discussion and Analysis of Financial Condition and Results of Operations for the period January-March 2010
(b)
3-10, 17-19
2. Consolidated Financial Statements including Notes to Consolidated Financial Statements for the period January-March 2010 3. Signatures 4. Exhibit 99.1: Computation of Ratio of Earnings to Fixed Charges Exhibit 99.2: Capitalization and Indebtedness
(a)
11-16, 20-24 25 26 27
In this Form 6-K, references to the first quarter 2010 and first quarter 2009 refer to the three-month periods ended 31 March 2010 and 31 March 2009 respectively. This discussion should be read in conjunction with the consolidated financial statements and related notes provided elsewhere in this Form 6-K and with the information, including the consolidated financial statements and related notes, in BPs Annual Report on Form 20-F for the year ended 31 December 2009. EX-99.1 EX-99.2 2
(b)
Case Case2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Table of Contents

BP p.l.c. Group results First quarter 2010
Document Document8715-1 10002-9Filed Filed 02/28/13 05/15/13Page Page 61 4of of167 30
London 29 April 2010

First quarter 2010 2009 2010 vs 2009
$ million Profit for the period(a) Inventory holding (gains) losses, net of tax Replacement cost profit(b) Profit per ordinary share (cents) Profit per ADS (dollars) Replacement cost profit per ordinary share (cents) Replacement cost profit per ADS (dollars)
6,079 (481) 5,598 32.39 1.94 29.82 1.79
2,562 (175 ) 2,387 13.69 0.82 12.75 0.77
137% 135% 137% 134%
BPs first-quarter replacement cost profit was $5,598 million, compared with $2,387 million a year ago, an increase of 135%. Replacement cost profit for the group is a non-GAAP measure. For further information see pages 4 and 16. BPs profit for the first quarter was $6,079 million, compared with $2,562 million a year ago. Non-operating items and fair value accounting effects for the first quarter had a net $49 million unfavourable impact compared with a net $194 million unfavourable impact in the first quarter of 2009. Information on fair value accounting effects is non-GAAP and further details are provided on page 18. Finance costs and net finance income or expense relating to pensions and other post-retirement benefits were $228 million for the first quarter, compared with $368 million for the same period last year. The effective tax rate on replacement cost profit for the first quarter was 34%, compared with 37.5% a year ago. The effective tax rate on profit for the first quarter was 34%, compared with 37.1% a year ago. Net cash provided by operating activities for the first quarter was $7.7 billion, compared with $5.6 billion a year ago. Net debt at the end of the first quarter was $25.2 billion. The ratio of net debt to net debt plus equity was 19% compared with 23% a year ago. Net debt information is non-GAAP and is defined on page 5. Gross finance debt at the end of the quarter was $32.2 billion compared to $34.7 billion a year ago. The ratio of gross debt to gross debt plus equity was 23%, compared with 28% a year ago. Total capital expenditure, including acquisitions and asset exchanges, for the first quarter was $4.7 billion. Organic capital expenditure(c) in the first quarter was $3.8 billion. Disposal proceeds were $0.1 billion for the first quarter. For 2010 as a whole, we continue to expect organic capital expenditure of around $20 billion and disposal proceeds of $2-3 billion. The quarterly dividend, to be paid on 21 June 2010, is 14 cents per share ($0.84 per ADS), the same as a year ago. The corresponding amount in sterling will be announced on 8 June 2010. A scrip dividend alternative is available, allowing shareholders to elect to receive their dividend in the form of new ordinary shares and ADS holders in the form of new ADSs. Details of the scrip dividend programme are available at www.bp.com/scrip. Profit attributable to BP shareholders. Replacement cost profit reflects the replacement cost of supplies and is the measure of profit or loss for each operating segment that is required to be disclosed under International Financial Reporting Standards, as explained in more detail on page 16. The replacement cost profit for the period is arrived at by excluding from profit inventory holding gains and losses and their associated tax effect. Replacement cost profit for the group is not a recognized GAAP measure. Management believes this information is useful to illustrate to investors the fact that crude oil and product prices can vary significantly from period to period and that the impact on our reported result under IFRS can be significant. Inventory holding gains and losses vary from period to period due principally to changes in oil prices as well as changes to underlying inventory levels. In order for investors to understand the operating performance of the group excluding the impact of oil price changes on the replacement of inventories, and to make comparisons of operating performance between reporting periods, BPs management believes it is helpful to disclose this information.
(c)
(a) (b)
Organic capital expenditure excludes acquisitions and asset exchanges and the accounting for our transaction with Value Creation Inc. (see page 15).
Case Case 2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document 8715-1 10002-9 Filed Filed 02/28/13 05/15/13 Page Page 62 5of of167 30 The commentaries above and following should be read in conjunction with the cautionary statement on page 10.
3
Analysis of replacement cost profit before interest and tax and reconciliation to profit for the period
First quarter 2010
2009
$ million Exploration and Production Refining and Marketing Other businesses and corporate Consolidation adjustment RC profit before interest and tax(a) Finance costs and net finance income or expense relating to pensions and other post-retirement benefits Taxation on a replacement cost basis Minority interest Replacement cost profit attributable to BP shareholders Inventory holding gains (losses) Taxation (charge) credit on inventory holding gains and losses Profit for the period attributable to BP shareholders
8,292 729 (328) 208 8,901 (228) (2,966) (109) 5,598 705 (224) 6,079
4,320 1,090 (761 ) (405 ) 4,244 (368 ) (1,454 ) (35 ) 2,387 254 (79 ) 2,562
(a)
Replacement cost profit reflects the replacement cost of supplies. Replacement cost profit for the group is a non-GAAP measure. For further information see page 16. Total of non-operating items and fair value accounting effects(a)(b)
First quarter 2010
2009
$ million Exploration and Production Refining and Marketing Other businesses and corporate Taxation credit (charge)(c)
104 (60) (118) (74) 25 (49)
469 (459 ) (321 ) (311 ) 117 (194 )
(a) (b) (c)
An analysis of non-operating items by type is provided on page 17 and an analysis by region is shown on pages 7, 9 and 10. Information on fair value accounting effects is non-GAAP. For further details, see page 18. Tax is calculated using the quarters effective tax rate on replacement cost profit. 4

Per share amounts
First quarter 2010
2009
Per ordinary share (cents)(a) Profit for the period RC profit for the period Per ADS (dollars)(a) Profit for the period RC profit for the period
32.39 29.82
13.69 12.75
1.94 1.79
0.82 0.77
(a)
See Note 4 on page 22 for details of the calculation of earnings per share. Net debt ratio net debt: net debt + equity
First quarter 2010
2009
$ million Gross debt Less: fair value asset (liability) of hedges related to finance debt Cash and cash equivalents Net debt Equity Net debt ratio
32,153 152 32,001 6,841 25,160 104,978 19%
34,698 (323) 35,021 8,360 26,661 91,179 23%
Net debt and net debt ratio are non-GAAP measures. Net debt includes the fair value of associated derivative financial instruments that are used to hedge foreign exchange and interest rate risks relating to finance debt, for which hedge accounting is claimed. The derivatives are reported on the balance sheet within the headings Derivative financial instruments. We believe that net debt and net debt ratio provide useful information to investors. Net debt enables investors to see the economic effect of gross debt, related hedges and cash and cash equivalents in total. The net debt ratio enables investors to see how significant net debt is relative to equity from shareholders. Dividends Dividends Payable BP has announced a dividend of 14 cents per ordinary share to be paid in June. The corresponding amount in sterling will be announced on 8 June 2010, and calculated from the average of the market exchange rates for the four dealing days commencing on 2 June 2010. Holders of American Depositary Shares (ADSs) will receive $0.84 per ADS. The dividend is payable on 21 June 2010 to shareholders and ADS holders on the register on 7 May 2010. A scrip dividend alternative is available, allowing shareholders to elect to receive their dividend in the form of new ordinary shares and ADS holders in the form of new ADSs. Details of the scrip dividend programme including the first quarter interim dividend and timetable are available at www.bp.com/scrip. Dividends Paid Dividends paid per ordinary share cents pence Dividends paid per ADS (cents) 5
First quarter 2010
2009
14.000 8.679 84.00
14.000 9.818 84.00

Exploration and Production
First quarter 2010
2009
$ million Profit before interest and tax(a) Inventory holding (gains) losses Replacement cost profit before interest and tax(b) By region US Non-US
8,316 (24) 8,292
4,286 34 4,320
2,762 5,530 8,292
1,143 3,177 4,320
(a) (b)
Includes profit after interest and tax of equity-accounted entities. See page 16 for information on replacement cost reporting for operating segments.
The replacement cost profit before interest and tax for the first quarter was $8,292 million, an increase of 92% compared with the first quarter of 2009. This increase was primarily due to higher realizations and higher earnings from equity-accounted entities (mainly TNK-BP), partly offset by a lower contribution from the gas marketing and trading business, higher production taxes and higher depreciation. Unit production costs were 3% lower than a year ago after adjusting for restructuring costs, and were 3% higher than a year ago including restructuring costs. Unit production costs after adjusting for restructuring costs is a non-GAAP measure see page 19 for details. The net non-operating gain of $41 million in the first quarter primarily relates to fair value gains on embedded derivatives, partly offset by restructuring costs. The corresponding quarter in 2009 included a net non-operating gain of $311 million. Additionally, in the first quarter, fair value accounting effects had a favourable impact of $63 million compared with a favourable impact of $158 million a year ago. Production for the quarter was 4,010mboe/d, broadly flat with the first quarter of 2009 reflecting continued strong operational performance. After adjusting for entitlement impacts in our production-sharing agreements (PSAs) production was 1% higher. As previously indicated, we expect production in 2010 to be slightly lower than in 2009. The actual outcome will depend on a number of factors including the oil price and its impact on PSAs and OPEC quota restrictions. In the second quarter, we expect a normal seasonal turnaround effect of around 100mboe/d. These turnaround activities are planned for some of our higher-margin areas including the North Sea and the Gulf of Mexico, where activity is currently under way at Thunder Horse. This will impact costs and margins as well as volumes. Two major projects started up during the first quarter. In the ultra-deepwater Gulf of Mexico, first oil was achieved from the Great White field (BP 33.3%). In Canada, the Noel major project commenced exporting and selling gas. During the quarter, we announced that BP will pay Devon Energy $7.0 billion for assets in Brazil, Azerbaijan and the US deepwater Gulf of Mexico. These include ten exploration blocks in Brazil; a major portfolio of deepwater exploration acreage and prospects in the US Gulf of Mexico; and an interest in the ACG development in the Caspian Sea. Completion of certain of these transfers is subject to regulatory approvals and other thirdparty consents. In addition, BP will sell to Devon Energy a 50% stake in our Kirby oil sands interests in Alberta, Canada, for $500 million. The parties have agreed to form a 50:50 joint venture, operated by Devon, to pursue the development of Kirby. Devon will commit to fund an additional $150 million of capital costs on BPs behalf. Also during the quarter, BP and Value Creation Inc. (VCI) of Calgary agreed to form a partnership to explore and develop the Terre de Grace oil sands acreage, in the Athabasca region of Alberta, Canada, using in-situ techniques. BP will hold a 75% interest and VCI a 25% interest in a newly formed partnership. BP has agreed to pay $900 million for the interest with $500 million paid in cash at closing. Furthermore, on behalf of our partners, BP announced the first major contracts to support the expansion of production from the Rumaila field in southern Iraq (BP has a 38% working interest). After the end of the quarter, BP agreed with Total to acquire its 15.7% interest in Valhall and its 25% interest in Hod, both fields located in the southern part of the Norwegian continental shelf, for the sum of $991 million to be paid in cash. The agreement will deepen BPs position as operator by giving BP a 43.8% interest in Valhall and 50% in Hod, subject to third-party consents and government approval. The deal has an effective date of 1 January 2010. On 20 April 2010, the semi-submersible drilling rig Deepwater Horizon owned and operated by Transocean Limited caught fire in the US Gulf of Mexico and subsequently sank. The rig was drilling an exploration well (Mississippi Canyon 252) in which BP has a 65% interest. As operator under the MC 252 lease, BP is committed to doing everything in its power to contain the environmental consequences of the incident. BP is currently ramping up preparations for a major cleaning effort on the shorelines of Louisiana, Mississippi, Alabama and Florida. Efforts continue to stem the flow of oil from the well, currently estimated at up to 5,000 barrels a day. Preliminary estimates indicate that current efforts to contain the spill and secure the well are costing the MC 252 owners about $6 million per day. This figure is expected to rise as activity increases. It is too early to quantify other potential costs and liabilities associated with the incident. 6

Exploration and Production
First quarter 2010
2009
$ million Non-operating items US Non-US
(62) 103 41
71 240 311
Fair value accounting effects(a) US Non-US
81 (18) 63
208 (50 ) 158
Exploration expense US Non-US
69 51 120
44 75 119
Production (net of royalties)(b) Liquids (mb/d) (net of royalties)(c) US Europe Russia Rest of World Of which equity-accounted entities Natural gas (mmcf/d) (net of royalties) US Europe Russia Rest of World Of which equity-accounted entities Total hydrocarbons (mboe/d)(d) US Europe Russia Rest of World Of which equity-accounted entities Average realizations(e) Total liquids ($/bbl) Natural gas ($/mcf) Total hydrocarbons ($/boe)
665 215 849 798 2,527 1,132 2,221 599 673 5,107 8,600 1,093 1,048 318 965 1,679 4,010 1,320 71.86 4.26 49.16
643 212 822 827 2,504 1,116 2,335 838 642 4,952 8,767 1,072 1,046 357 933 1,680 4,016 1,301 41.26 3.63 31.40
(a)
These effects represent the favourable (unfavourable) impact relative to managements measure of performance. Further information on fair value accounting effects is provided on page 18. Includes BPs share of production of equity-accounted entities. Crude oil and natural gas liquids. Natural gas is converted to oil equivalent at 5.8 billion cubic feet = 1 million barrels. Based on sales of consolidated subsidiaries only this excludes equity-accounted entities.
(b) (c) (d) (e)
Because of rounding, some totals may not agree exactly with the sum of their component parts. 7
Case Table of Contents
2:10-md-02179-CJB-SS Document 10002-9 8715-1 Filed Filed 02/28/13 05/15/13 Page Page 67 10 of of 167 30
Refining and Marketing
First quarter 2010
2009
$ million Profit before interest and tax(a) Inventory holding (gains) losses Replacement cost profit before interest and tax(b) By region US Non-US
1,408 (679) 729
1,417 (327 ) 1,090
(63) 792 729
308 782 1,090
(a) (b)
The replacement cost profit before interest and tax for the first quarter was $729 million, compared with $1,090 million for the same period last year. The first quarters result included a net non-operating charge of $70 million compared with a net charge of $350 million a year ago. Fair value accounting effects had a favourable impact of $10 million in the first quarter compared with an unfavourable impact of $109 million in the first quarter of 2009. Compared with a year ago, the result reflected a significantly weaker supply and trading contribution in contrast to the particularly strong contribution in the first quarter of last year. The result was also impacted by a weaker refining environment, with the indicator margin at around half the level of the same period in 2009, and marketing margins for some products compressed by rising crude prices. These factors were partially offset by operational improvements and further cost efficiencies in the fuels value chains, and continued strong performance in the international businesses. In addition, BPs actual refining margins fell by less than the indicator would suggest as a result of BPs highly upgraded refining portfolio. In the fuels value chains, Solomon refining availability was up by three percentage points year on year to 95.3%, the highest level since 2004. Refining throughput increased by over 8% compared with the same quarter last year and by over 5% compared with the previous quarter, principally driven by increased throughputs in our US refineries. In the international businesses, our petrochemicals business had a particularly strong quarter with production volumes up almost 40% compared with the same period last year and 12% on the previous quarter. In February, BP announced that it had received an offer from Delek Europe B.V. for the retail fuels and convenience business and selected fuels terminals in France. As a result, BP has agreed a period of exclusivity with Delek Europe B.V. to negotiate the terms for the sale and to allow consultation with the relevant works councils. Any transaction will be subject to regulatory approval and is expected to include a BP brand licence agreement. In March, BP announced that in sub-Saharan Africa it intends to sell its marketing businesses in Namibia, Malawi, Tanzania, Zambia and Botswana and focus its fuel marketing activities on South Africa and Mozambique. There has been some improvement in refining margins in the early part of the second quarter although we expect opportunities for further improvement to be limited. BPs refinery turnaround activities are expected to be higher in the second quarter than in the first. Continued low market volatility would limit the supply and trading contribution in the quarter. In the international businesses, we expect the current petrochemicals margins to come under some pressure as new capacity comes onstream. 8
Refining and Marketing
First quarter 2010
2009
$ million Non-operating items US Non-US
(3) (67) (70)
(134 ) (216 ) (350 )
Fair value accounting effects(a) US Non-US
16 (6) 10
65 (174 ) (109 )
Refinery throughputs (mb/d) US Europe Rest of World Total throughput Refining availability (%)(b) Sales volumes (mb/d)(c) Marketing sales by region US Europe Rest of World Total marketing sales Trading/supply sales Total refined product sales Global Indicator Refining Margin (GIM) ($/bbl)(d) US Gulf Coast US Midwest US West Coast North West Europe Mediterranean Singapore BP Average GIM Chemicals production (kte) US Europe Rest of World Total production
1,366 780 282 2,428 95.3
1,164 783 299 2,246 92.3
1,418 1,428 629 3,475 2,622 6,097
1,402 1,529 617 3,548 2,312 5,860
3.50 1.86 3.32 4.29 3.11 0.97 3.08
6.69 7.03 9.96 4.67 3.56 2.51 6.20
940 981 1,887 3,808
713 788 1,244 2,745
(a)
These effects represent the favourable (unfavourable) impact relative to managements measure of performance. Further information on fair value accounting effects is provided on page 18. Refining availability represents Solomon Associates operational availability, which is defined as the percentage of the year that a unit is available for processing after subtracting the annualized time lost due to turnaround activity and all planned mechanical, process and regulatory maintenance downtime. Does not include volumes relating to crude oil. The Global Indicator Refining Margin (GIM) is the average of regional indicator margins weighted for BPs crude refining capacity in each region. Each regional indicator margin is based on a single representative crude with product yields characteristic of the typical level of upgrading complexity. The regional indicator margins may not be representative of the margins achieved by BP in any period because of BPs particular refinery configurations and crude and product slate. 9
(b)
(c) (d)
Other businesses and corporate
First quarter 2010 2009
$ million Profit (loss) before interest and tax(a) Inventory holding (gains) losses Replacement cost profit (loss) before interest and tax(b) By region US Non-US
(326 ) (2 ) (328 )
(800 ) 39 (761 )
(231 ) (97 ) (328 )
(279 ) (482 ) (761 )
Results include Non-operating items US Non-US
(106 ) (12 ) (118 )
(116 ) (205 ) (321 )
(a) (b)
Other businesses and corporate comprises the Alternative Energy business, Shipping, the groups aluminium asset, Treasury (which includes interest income on the groups cash and cash equivalents), and corporate activities worldwide. The replacement cost loss before interest and tax for the first quarter was $328 million, compared with a loss of $761 million a year ago. The net non-operating charge for the first quarter was $118 million, compared with a net charge of $321 million a year ago. In addition, there were favourable foreign exchange effects and lower costs, and improved margins in Alternative Energy. In Alternative Energy, our solar business achieved sales of 54MW in the first quarter. In March, BP Solar announced the closure of manufacturing at its Frederick facility, in Maryland, US, as it moves its manufacturing to lower-cost locations. BP Solar will maintain its US presence in sales and marketing, research and technology, project development, and key business support activities. In our US wind business, construction has commenced at the 125MW Goshen North wind farm (BP 50%) in Bonneville County, Idaho. BPs net wind generation capacity(c) at the end of the first quarter was 711MW (1,237MW gross), compared with 678MW (1,113MW gross) at the end of the same period a year ago. Net wind capacity is the sum of the rated capacities of the assets/turbines that have entered into commercial operation, including BPs share of equity-accounted entities. The gross data is the equivalent capacity on a gross-JV basis, which includes 100% of the capacity of equityaccounted entities where BP has partial ownership.
(c)
Cautionary statement regarding forward-looking statements: The foregoing discussion contains forward-looking statements particularly those regarding production and quarterly phasing of production, second quarter seasonal turn-around effect and its impact on costs, margins and volumes; refining and petrochemicals margins; refinery turnaround activities; expected supply and trading contribution in the second quarter; dividend and optional scrip dividend. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will or may occur in the future. Actual results may differ from those expressed in such statements, depending on a variety of factors including the timing of bringing new fields onstream; future levels of industry product supply; demand and pricing; OPEC quota restrictions; PSA effects; operational problems; general economic conditions; political stability and economic growth in relevant areas of the world; changes in laws and governmental regulations; regulatory or legal actions; exchange rate fluctuations; development and use of new technology; the success or otherwise of partnering; the actions of competitors; natural disasters and adverse weather conditions; changes in public expectations and other changes to business conditions; wars and acts of terrorism or sabotage; and other factors discussed in this Announcement. For more information you should refer to our Annual Report and Accounts 2009 and our 2009 Annual Report on Form 20-F filed with the US Securities and Exchange Commission. 10
Group income statement
First quarter 2010 2009
$ million Sales and other operating revenues (Note 2) Earnings from jointly controlled entities after interest and tax Earnings from associates after interest and tax Interest and other income Gains on sale of businesses and fixed assets Total revenues and other income Purchases Production and manufacturing expenses (Note 3) Production and similar taxes (Note 3) Depreciation, depletion and amortization Impairment and losses on sale of businesses and fixed assets Exploration expense Distribution and administration expenses Fair value (gain) loss on embedded derivatives Profit before interest and taxation Finance costs Net finance (income) expense relating to pensions and other post-retirement benefits Profit before taxation Taxation Profit for the period Attributable to BP shareholders Minority interest
73,071 403 763 142 38 74,417 51,641 5,740 1,276 2,996 164 120 3,020 (146 ) 9,606 238 (10 ) 9,378 3,190 6,188 6,079 109 6,188
47,296 220 285 203 81 48,085 30,777 5,894 674 2,823 137 119 3,349 (186 ) 4,498 318 50 4,130 1,533 2,597 2,562 35 2,597
Earnings per share cents (Note 4) Profit for the period attributable to BP shareholders Basic Diluted 11
32.39 31.99
13.69 13.54
Group statement of comprehensive income
First quarter 2010
2009
$ million Profit for the period Currency translation differences Available-for-sale investments marked to market Available-for-sale investments recycled to the income statement Cash flow hedges marked to market Cash flow hedges recycled to the income statement Cash flow hedges recycled to the balance sheet Taxation Other comprehensive income Total comprehensive income Attributable to BP shareholders Minority interest
6,188 (526) (93) (162) (94) 13 (119) (981) 5,207 5,105 102 5,207
2,597 (1,011 ) 74 2 (211 ) 239 71 (82 ) (918 ) 1,679 1,668 11 1,679
Group statement of changes in equity

BP shareholders equity
Minority interest
Total equity
$ million At 31 December 2009 Total comprehensive income Dividends Share-based payments (net of tax) Transactions involving minority interests At 31 March 2010
101,613 5,105 (2,626) (13) 104,079

BP shareholders equity
500 102 (3) 300 899
102,113 5,207 (2,629) (13) 300 104,978
Minority interest
Total equity
$ million At 31 December 2008 Total comprehensive income Dividends Share-based payments (net of tax) At 31 March 2009 12
91,303 1,668 (2,619) 121 90,473
806 11 (111) 706
92,109 1,679 (2,730) 121 91,179
Group balance sheet
31 March 2010 31 December 2009
$ million Non-current assets Property, plant and equipment Goodwill Intangible assets Investments in jointly controlled entities Investments in associates Other investments Fixed assets Loans Other receivables Derivative financial instruments Prepayments Deferred tax assets Defined benefit pension plan surpluses Current assets Loans Inventories Trade and other receivables Derivative financial instruments Prepayments Current tax receivable Cash and cash equivalents Total assets Current liabilities Trade and other payables Derivative financial instruments Accruals Finance debt Current tax payable Provisions Non-current liabilities Other payables Derivative financial instruments Accruals Finance debt Deferred tax liabilities Provisions Defined benefit pension plan and other post-retirement benefit plan deficits Total liabilities Net assets Equity BP shareholders equity Minority interest
108,232 8,409 12,675 15,484 13,396 1,459 159,655 982 2,216 4,770 1,359 464 1,494 170,940 236 23,221 31,159 5,355 2,647 238 6,841 69,697 240,637 38,146 5,530 5,482 8,356 2,624 1,646 61,784 3,206 3,899 656 23,797 20,156 12,752 9,409 73,875 135,659 104,978 104,079 899 104,978
108,275 8,620 11,548 15,296 12,963 1,567 158,269 1,039 1,729 3,965 1,407 516 1,390 168,315 249 22,605 29,531 4,967 1,753 209 8,339 67,653 235,968 35,204 4,681 6,202 9,109 2,464 1,660 59,320 3,198 3,474 703 25,518 18,662 12,970 10,010 74,535 133,855 102,113 101,613 500 102,113
13
Condensed group cash flow statement
First quarter 2010
2009
$ million Operating activities Profit before taxation Adjustments to reconcile profit before taxation to net cash provided by operating activities Depreciation, depletion and amortization and exploration expenditure written off Impairment and (gain) loss on sale of businesses and fixed assets Earnings from equity-accounted entities, less dividends received Net charge for interest and other finance expense, less net interest paid Share-based payments Net operating charge for pensions and other post-retirement benefits, less contributions and benefit payments for unfunded plans Net charge for provisions, less payments Movements in inventories and other current and non-current assets and liabilities(a) Income taxes paid Net cash provided by operating activities Investing activities Capital expenditure Acquisitions, net of cash acquired Investment in jointly controlled entities Investment in associates Proceeds from disposal of fixed assets Proceeds from disposal of businesses, net of cash disposed Proceeds from loan repayments Other Net cash used in investing activities Financing activities Net issue of shares Proceeds from long-term financing Repayments of long-term financing Net decrease in short-term debt Dividends paid BP shareholders Minority interest Net cash used in financing activities Currency translation differences relating to cash and cash equivalents Increase (decrease) in cash and cash equivalents Cash and cash equivalents at beginning of period Cash and cash equivalents at end of period
9,378 3,017 126 (669) 46 (146) (490) (48) (1,940) (1,581) 7,693 (4,289) (82) (6) 108 56 (4,213) 128 342 (2,495) (247) (2,626) (3) (4,901) (77) (1,498) 8,339 6,841
4,130 2,849 56 (252 ) 89 86 26 281 32 (1,725 ) 5,572 (4,817 ) (103 ) (47 ) 311 117 47 (4,492 ) 35 4,619 (2,580 ) (182 ) (2,619 ) (111 ) (838 ) (79 ) 163 8,197 8,360
Includes (a) Inventory holding (gains) losses Fair value (gain) loss on embedded derivatives
(705) (146)
(254 ) (186 )
Inventory holding gains and losses and fair value gains and losses on embedded derivatives are also included within profit before taxation. 14
Capital expenditure and acquisitions
First quarter 2010
2009
$ million By business Exploration and Production US Non-US(a) Refining and Marketing US Non-US Other businesses and corporate US Non-US
1,133 2,815 3,948 528 144 672 28 39 67 4,687 1,689 2,998 4,687
1,670 2,035 3,705 567 226 793 56 41 97 4,595 2,293 2,302 4,595
By geographical area US Non-US(a) Included above: Acquisitions and asset exchanges
(a)
First quarter 2010 included capital expenditure of $900 million in Exploration and Production relating to the formation of a partnership with Value Creation Inc. to develop the Terre de Grace oil sands acreage in the Athabasca region of Alberta, Canada. Exchange rates
First quarter 2010
2009
US dollar/sterling average rate for the period US dollar/sterling period-end rate US dollar/euro average rate for the period US dollar/euro period-end rate 15
1.56 1.51 1.38 1.34
1.43 1.42 1.30 1.32
Analysis of replacement cost profit before interest and tax and reconciliation to profit before taxation(a)
First quarter 2010
2009
$ million By business Exploration and Production US Non-US Refining and Marketing US Non-US Other businesses and corporate US Non-US
2,762 5,530 8,292 (63 ) 792 729 (231 ) (97 ) (328 ) 8,693 208 8,901 24 679 2 9,606 238 (10 ) 9,378
1,143 3,177 4,320 308 782 1,090 (279 ) (482 ) (761 ) 4,649 (405 ) 4,244 (34 ) 327 (39 ) 4,498 318 50 4,130
Consolidation adjustment Replacement cost profit before interest and tax(b) Inventory holding gains (losses)(c) Exploration and Production Refining and Marketing Other businesses and corporate Profit before interest and tax Finance costs Net finance (income) expense relating to pensions and other post-retirement benefits Profit before taxation Replacement cost profit (loss) before interest and tax By geographical area US Non-US
2,590 6,311 8,901
854 3,390 4,244
(a)
IFRS requires that the measure of profit or loss disclosed for each operating segment is the measure that is provided regularly to the chief operating decision maker for the purposes of performance assessment and resource allocation. For BP, this measure of profit or loss is replacement cost profit before interest and tax. In addition, a reconciliation is required between the total of the operating segments measures of profit or loss and the group profit or loss before taxation. Replacement cost profit reflects the replacement cost of supplies. The replacement cost profit for the period is arrived at by excluding from profit inventory holding gains and losses and their associated tax effect. Replacement cost profit for the group is not a recognized GAAP measure. Inventory holding gains and losses represent the difference between the cost of sales calculated using the average cost to BP of supplies acquired during the period and the cost of sales calculated on the first-in first-out (FIFO) method after adjusting for any changes in provisions where the net realizable value of the inventory is lower than its cost. Under the FIFO method, which we use for IFRS reporting, the cost of inventory charged to the income statement is based on its historic cost of purchase, or manufacture, rather than its replacement cost. In volatile energy markets, this can have a significant distorting effect on reported income. The amounts disclosed represent the difference between the charge (to the income statement) for inventory on a FIFO basis (after adjusting for any related movements in net realizable value provisions) and the charge that would have arisen if an average cost of supplies was used for the period. For this purpose, the average cost of supplies during the period is principally calculated on a monthly basis by dividing the total cost of inventory acquired in the period by the number of barrels acquired. The amounts disclosed are not separately reflected in the financial statements as a gain or loss. No adjustment is made in respect of the cost of inventories held as part of a trading position and certain other temporary inventory positions. Management believes this information is useful to illustrate to investors the fact that crude oil and product prices can vary significantly from period to period and that the impact on our reported result under IFRS can be significant. Inventory holding gains and losses vary from period to period due principally to changes in oil prices as well as changes to underlying inventory levels. In order for investors to understand the operating performance of the group excluding the impact of oil price changes on the replacement of inventories, and to make comparisons of operating performance between reporting periods, BPs management believes it is helpful to disclose this information. 16
(b)
(c)
Case 2:10-md-02179-CJB-SS Document 10002-9 8715-1 Filed Filed 02/28/13 05/15/13 Page Page 76 19 of of 167 30
Non-operating items(a)
First quarter 2010
2009
$ million Exploration and Production Impairment and gain (loss) on sale of businesses and fixed assets Environmental and other provisions Restructuring, integration and rationalization costs Fair value gain (loss) on embedded derivatives Other Refining and Marketing Impairment and gain (loss) on sale of businesses and fixed assets Environmental and other provisions Restructuring, integration and rationalization costs Fair value gain (loss) on embedded derivatives Other Other businesses and corporate Impairment and gain (loss) on sale of businesses and fixed assets Environmental and other provisions Restructuring, integration and rationalization costs Fair value gain (loss) on embedded derivatives Other
(13 ) (104 ) 146 12 41 (45 ) 12 (37 ) (70 ) (68 ) (38 ) (12 ) (118 ) (147 ) 50 (97 )
73 (1 ) 243 (4 ) 311 (21 ) (263 ) (57 ) (9 ) (350 ) (108 ) (75 ) (71 ) (67 ) (321 ) (360 ) 135 (225 )
Total before taxation Taxation credit (charge)(b) Total after taxation for period
(a) (b)
An analysis of non-operating items by region is shown on pages 7, 9 and 10. Tax is calculated using the quarters effective tax rate on replacement cost profit.
Non-operating items are charges and credits arising in consolidated entities that BP discloses separately because it considers such disclosures to be meaningful and relevant to investors. These disclosures are provided in order to enable investors better to understand and evaluate the groups financial performance. 17
Non-GAAP information on fair value accounting effects
First quarter 2010
2009
$ million Favourable (unfavourable) impact relative to managements measure of performance Exploration and Production Refining and Marketing Taxation charge(a)
63 10 73 (25 ) 48
158 (109 ) 49 (18 ) 31
(a)
Tax is calculated using the quarters effective tax rate on replacement cost profit.
BP uses derivative instruments to manage the economic exposure relating to inventories above normal operating requirements of crude oil, natural gas and petroleum products as well as certain contracts to supply physical volumes at future dates. Under IFRS, these inventories and contracts are recorded at historic cost and on an accruals basis respectively. The related derivative instruments, however, are required to be recorded at fair value with gains and losses recognized in income because hedge accounting is either not permitted or not followed, principally due to the impracticality of effectiveness testing requirements. Therefore, measurement differences in relation to recognition of gains and losses occur. Gains and losses on these inventories and contracts are not recognized until the commodity is sold in a subsequent accounting period. Gains and losses on the related derivative commodity contracts are recognized in the income statement from the time the derivative commodity contract is entered into on a fair value basis using forward prices consistent with the contract maturity. IFRS requires that inventory held for trading be recorded at its fair value using period end spot prices whereas any related derivative commodity instruments are required to be recorded at values based on forward prices consistent with the contract maturity. Depending on market conditions, these forward prices can be either higher or lower than spot prices resulting in measurement differences. BP enters into contracts for pipelines and storage capacity that, under IFRS, are recorded on an accruals basis. These contracts are risk-managed using a variety of derivative instruments which are fair valued under IFRS. This results in measurement differences in relation to recognition of gains and losses. The way that BP manages the economic exposures described above, and measures performance internally, differs from the way these activities are measured under IFRS. BP calculates this difference for consolidated entities by comparing the IFRS result with managements internal measure of performance, under which the inventory and the supply and capacity contracts in question are valued based on fair value using relevant forward prices prevailing at the end of the period. We believe that disclosing managements estimate of this difference provides useful information for investors because it enables investors to see the economic effect of these activities as a whole. The impacts of fair value accounting effects, relative to managements internal measure of performance, are shown in the table above. A reconciliation to GAAP information is set out below. Reconciliation of non-GAAP information
First quarter 2010
2009
$ million Exploration and Production Replacement cost profit before interest and tax adjusted for fair value accounting effects Impact of fair value accounting effects Replacement cost profit before interest and tax Refining and Marketing Replacement cost profit before interest and tax adjusted for fair value accounting effects Impact of fair value accounting effects Replacement cost profit before interest and tax Total group Profit before interest and tax adjusted for fair value accounting effects Impact of fair value accounting effects Profit before interest and tax 18
8,229 63 8,292
4,162 158 4,320
719 10 729
1,199 (109 ) 1,090
9,533 73 9,606
4,449 49 4,498
Realizations and marker prices
First quarter 2010
2009
Average realizations(a) Liquids ($/bbl)(b) US Europe Rest of World BP Average Natural gas ($/mcf) US Europe Rest of World BP Average Total hydrocarbons ($/boe) US Europe Rest of World BP Average Average oil marker prices ($/bbl) Brent West Texas Intermediate Alaska North Slope Mars Urals (NWE cif) Russian domestic oil Average natural gas marker prices Henry Hub gas price($/mmBtu)(c) UK Gas National Balancing Point (p/therm)
69.77 75.71 72.94 71.86 4.84 4.91 3.90 4.26 54.54 60.39 42.20 49.16 76.36 78.84 79.14 75.85 75.31 35.52 5.30 35.65
39.47 47.59 40.89 41.26 3.38 5.56 3.41 3.63 31.83 41.36 28.35 31.40 44.46 43.20 45.40 43.83 43.65 19.52 4.91 46.80
(a) (b) (c)
Based on sales of consolidated subsidiaries only this excludes equity-accounted entities. Crude oil and natural gas liquids. Henry Hub First of Month Index. Non-GAAP information on unit production costs adjusted for restructuring costs(a)
First quarter 2010
2009
$ million Production costs Restructuring costs included in production costs Production costs adjusted for restructuring costs Production (net of royalties)(b) Total hydrocarbons (mboe/d)(c) Unit production costs adjusted for restructuring costs ($/boe)(d)
1,524 (86) 1,438
1,499 1,499
2,690 5.94
2,715 6.13
(a)
Production costs are costs incurred by Exploration and Production to operate and maintain wells and related equipment and facilities. Amounts do not include ad valorem and severance taxes. Restructuring costs are included within non-operating items. Further information on non-operating items is provided on page 17. Excludes BPs share of production of equity-accounted entities. Natural gas is converted to oil equivalent at 5.8 billion cubic feet = 1 million barrels. For first quarter 2009, there were no restructuring costs within production costs. 19
(b) (c) (d)
Notes
1.
Basis of preparation The interim financial information included in this report has been prepared in accordance with IAS 34 Interim Financial Reporting. The results for the interim periods are unaudited and in the opinion of management include all adjustments necessary for a fair presentation of the results for the periods presented. All such adjustments are of a normal recurring nature. This report should be read in conjunction with the consolidated financial statements and related notes for the year ended 31 December 2009 included in BP Annual Report and Accounts 2009 and in BP Annual Report on Form 20-F 2009 . BP prepares its consolidated financial statements included within its Annual Report and Accounts on the basis of International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB), IFRS as adopted by the European Union (EU) and in accordance with the provisions of the UK Companies Act 2006. IFRS as adopted by the EU differs in certain respects from IFRS as issued by the IASB, however, the differences have no impact on the groups consolidated financial statements for the periods presented. The financial information presented herein has been prepared in accordance with the accounting policies expected to be used in preparing the Annual Report and Accounts and the Annual Report on Form 20-F for 2010, which do not differ significantly from those used in the BP Annual Report and Accounts 2009 or in BP Annual Report on Form 20-F 2009 . BP has adopted the revised version of IFRS 3 Business Combinations, with effect from 1 January 2010. The revised standard still requires the purchase method of accounting to be applied to business combinations but introduces some changes to the accounting treatment. Assets and liabilities arising from business combinations that occurred before 1 January 2010 were not required to be restated and thus there was no effect on the groups reported income or net assets on adoption. In addition, BP has adopted the amended version of IAS 27, Consolidated and Separate Financial Statements, also with effect from 1 January 2010. This requires the effects of all transactions with minority interests to be recorded in equity if there is no change in control. When control is lost, any remaining interest in the entity is remeasured to fair value and a gain or loss recognized in profit or loss. There was no effect on the groups reported income or net assets on adoption. 20
Notes 2. Sales and other operating revenues

First quarter 2010
2009
$ million By business Exploration and Production Refining and Marketing Other businesses and corporate
18,080 64,286 790 83,156
12,343 40,573 584 53,500
Less: sales between businesses Exploration and Production Refining and Marketing Other businesses and corporate
9,746 135 204 10,085
5,800 111 293 6,204
Third party sales and other operating revenues Exploration and Production Refining and Marketing Other businesses and corporate Total third party sales and other operating revenues By geographical area US Non-US Less: sales between areas
8,334 64,151 586 73,071
6,543 40,462 291 47,296
26,108 54,009 80,117 7,046 73,071
17,580 33,586 51,166 3,870 47,296
3.
Production and similar taxes

First quarter 2010
2009
$ million US Non-US
313 963 1,276
79 595 674
Comparative figures have been restated to include amounts previously reported as production and manufacturing expenses amounting to $213 million for the first quarter 2009, which we believe are more appropriately classified as production taxes. There was no effect on the group profit for the period or the group balance sheet. 21
Notes
4. Earnings per share and shares in issue Basic earnings per ordinary share (EpS) amounts are calculated by dividing the profit for the period attributable to ordinary shareholders by the weighted average number of ordinary shares outstanding during the period. The calculation of EpS is performed separately for each discrete quarterly period, and for the year-to-date period. As a result, the sum of the discrete quarterly EpS amounts in any particular year-to-date period may not be equal to the EpS amount for the year-to-date period. For the diluted EpS calculation the weighted average number of shares outstanding during the period is adjusted for the number of shares that are potentially issuable in connection with employee share-based payment plans using the treasury stock method.
First quarter 2010
2009
$ million Results for the period Profit for the period attributable to BP shareholders Less: preference dividend Profit attributable to BP ordinary shareholders Inventory holding (gains) losses, net of tax RC profit attributable to BP ordinary shareholders Basic weighted average number of shares outstanding (thousand)(a) ADS equivalent (thousand)(a) Weighted average number of shares outstanding used to calculate diluted earnings per share (thousand)(a) ADS equivalent (thousand)(a) Shares in issue at period-end (thousand)(a) ADS equivalent (thousand)(a)
6,079 6,079 (481) 5,598 18,769,888 3,128,315 19,004,740 3,167,457 18,784,361 3,130,727
2,562 2,562 (175) 2,387 18,720,354 3,120,059 18,920,515 3,153,419 18,724,785 3,120,798
(a)
Excludes treasury shares and the shares held by the Employee Share Ownership Plans and includes certain shares that will be issuable in the future under employee share plans. 22
Notes
5. Analysis of changes in net debt

First quarter 2010
2009
$ million Opening balance Finance debt Less: Cash and cash equivalents Less: FV asset (liability) of hedges related to finance debt Opening net debt Closing balance Finance debt Less: Cash and cash equivalents Less: FV asset (liability) of hedges related to finance debt Closing net debt Decrease (increase) in net debt Movement in cash and cash equivalents (excluding exchange adjustments) Net cash outflow (inflow) from financing (excluding share capital) Other movements Movement in net debt before exchange effects Exchange adjustments Decrease (increase) in net debt 6. TNK-BP operational and financial information
34,627 8,339 127 26,161
33,204 8,197 (34 ) 25,041
32,153 6,841 152 25,160 1,001 (1,421) 2,400 7 986 15 1,001
34,698 8,360 (323 ) 26,661 (1,620 ) 242 (1,857 ) 7 (1,608 ) (12 ) (1,620 )
First quarter 2010
2009
Production (Net of royalties) (BP share) Crude oil (mb/d) Natural gas (mmcf/d) Total hydrocarbons (mboe/d)(a) $ million Income statement (BP share) Profit (loss) before interest and tax Finance costs Taxation Minority interest Net income Cash flow Dividends received
849 673 965
822 642 933
788 (38) (168) (39) 543 256

31 March 2010
419 (68 ) (185 ) (32 ) 134

31 December 2009
Balance sheet Investments in associates
9,428
9,141
(a)
Natural gas is converted to oil equivalent at 5.8 billion cubic feet = 1 million barrels. 23
Notes
7. Inventory valuation A provision of $46 million was held at 31 December 2009 to write inventories down to their net realizable value. The net movement in the provision during the first quarter 2010 was a decrease of $22 million (first quarter 2009 was a decrease of $1,163 million). 8. Post balance sheet event On 20 April 2010, the semi-submersible drilling rig Deepwater Horizon owned and operated by Transocean Limited caught fire in the US Gulf of Mexico and subsequently sank. The rig was drilling an exploration well (Mississippi Canyon 252) in which BP has a 65% interest. As operator under the MC 252 lease, BP is committed to doing everything in its power to contain the environmental consequences of the incident. BP is currently ramping up preparations for a major cleaning effort on the shorelines of Louisiana, Mississippi, Alabama and Florida. Efforts continue to stem the flow of oil from the well, currently estimated at up to 5,000 barrels a day. Preliminary estimates indicate that current efforts to contain the spill and secure the well are costing the MC 252 owners about $6 million per day. This figure is expected to rise as activity increases. It is too early to quantify other potential costs and liabilities associated with the incident. 9. Second-quarter results BPs second-quarter results will be announced on 27 July 2010. 10. Statutory accounts The financial information shown in this publication, which was approved by the board of directors on 26 April 2010, is unaudited and does not constitute statutory financial statements. 24
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
BP p.l.c. (Registrant) Dated: 29 April 2010 /s/ D J Pearl D J PEARL Deputy Company Secretary
25
Exhibit 99.1 Computation of ratio of earnings to fixed charges
First quarter 2010 $ million, except ratio
Profit before taxation Groups share of income in excess of dividends of equity-accounted entities Capitalized interest, net of amortization Profit as adjusted Fixed charges: Interest expense Rental expense representative of interest Capitalized interest
9,378 (669) 11 8,720
144 312 51 507 9,227 18.2
Total adjusted earnings available for payment of fixed charges Ratio of earnings to fixed charges 26
Exhibit 99.2 Capitalization and indebtedness The following table shows the unaudited consolidated capitalization and indebtedness of the BP group as of 31 March 2010 in accordance with IFRS:
31 March 2010 $ million
Share capital Authorized share capital (1) Capital shares (2-3) Paid-in surplus (4) Merger reserve (4) Own shares Available-for-sale investments Cash flow hedges Foreign currency translation reserve Treasury shares Share-based payment reserve Profit and loss account BP shareholders equity Finance debt (5-7) Due within one year Due after more than one year Total finance debt Total capitalization (8)
9,021 5,183 11,033 27,206 (71) 661 (164) 4,117 (21,263) 1,397 75,980 104,079
8,356 23,797 32,153 136,232
(1) (2)
Authorized share capital comprises 36 billion ordinary shares, par value US$0.25 per share, and 12,750,000 cumulative preference shares, par value 1 per share. Issued share capital as of 31 March 2010 comprised 18,777,884,384 ordinary shares, par value US$0.25 per share, and 12,706,252 preference shares, par value 1 per share. This excludes 1,866,287,922 ordinary shares which have been bought back and held in treasury by BP and 112,803,287 ordinary shares which have been bought back for cancellation. These shares are not taken into consideration in relation to the payment of dividends and voting at shareholders meetings. Capital shares represent the ordinary shares of BP which have been issued and are fully paid. Paid-in surplus and merger reserve represent additional paid-in capital of BP which cannot normally be returned to shareholders. Finance debt recorded in currencies other than US dollars has been translated into US dollars at the relevant exchange rates existing on 31 March 2010. Obligations under finance leases are included within finance debt in the above table. As of 31 March 2010, the parent company, BP p.l.c., had outstanding guarantees totalling US$27,834 million, of which US$27,801 million related to guarantees in respect of borrowings by its subsidiary undertakings. Thus 86% of the finance debt had been guaranteed by BP. BP had, as of 31 March 2010, no material outstanding contingent indebtedness and there have been no material changes since that date. All of BPs debt is unsecured. There has been no material change since 31 March 2010 in the consolidated capitalization and indebtedness of BP. Except for the matters disclosed in note 8 on page 24 in connection with the Deepwater Horizon drilling rig, there has been no material change since 31 March 2010 in relation to the contingent liabilities of BP. 27
(3) (4) (5) (6) (7)
(8)
Exhibit 8
Case Case2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document8715-1 10002-10 Filed Filed 02/28/13 05/15/13 Page Page 89 of 2 of 167 4 SECURITIES AND EXCHANGE COMMISSION
Form 6-K
Report of Foreign Issuer
Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934
for the period ended 30 April 2010
BP p.l.c. (Translation of registrant's name into English)
1 ST JAMES'S SQUARE, LONDON, SW1Y 4PD, ENGLAND (Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F |X| ---------------
Form 40-F ----------------
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes ---------------
No
|X| ----------------
press release
April 30, 2010
Case Case2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document8715-1 10002-10 Filed Filed 02/28/13 05/15/13 Page Page 90 of 3 of 167 4
This press release was issued last night in the United States. BP STEPS UP SHORELINE PROTECTION PLANS ON US GULF COAST
BP announced today it has launched the next phase of its effort to contain and clean up the Gulf of Mexico oil spill, with a significant expansion of onshore preparations in case spilled oil should reach the coast. The company is today ramping up preparations for a major protection and cleaning effort on the shorelines of Louisiana, Mississippi, Alabama and Florida. To supplement its Houma, Louisiana incident command post, which oversees the offshore containment effort and onshore response in Louisiana, BP is now establishing a similar onshore incident command post in Mobile, Alabama to oversee the onshore response in Mississippi, Alabama and Florida. Work will continue to complete installing marine protection booms along the coast. As well as 180,000 feet of boom already in the water, an additional 300,000 feet is staged or in the process of being deployed, with more on the way. BP is mobilizing its full resources to fight the oil spill, which follows the sinking of the Transocean Deepwater Horizon drilling rig in the Mississippi Canyon 252 block. This includes efforts to stem the flow of oil into the water from the sub-sea well, to contain the spill offshore and to protect the Gulf coast. " We are doing absolutely everything in our power to eliminate the source of the leak and contain the environmental impact of the spill. We are determined to fight this spill on all fronts, in the deep waters of the Gulf, in the shallow waters and, should it be necessary, on the shore," said BP Group Chief Executive Tony Hayward. "In the past few days I have seen the full extent of BP's global resources and capability being brought to bear on this problem, and welcome the offers of further assistance we have had from government agencies, oil companies and members of the public to defend the shoreline and fight this spill. We are determined to succeed." The massive offshore operation that has been running for a week has been addressing the spill on the surface offshore, both by skimming and collecting oil and by applying dispersants. There is concern, however, that weather and current patterns will shift and move the sheen closer to shore or onshore in the coming days. The new onshore activity is focussed on five locations in the potentially affected states: Venice, Louisiana; Pascagoula and Biloxi, Mississippi; Mobile, Alabama; and Pensacola, Florida. Staging posts are in place stocked with people and material, including about 100,000 feet of boom, to protect the shoreline in each area. Each of the states has oil spill response plans already in place and trained community groups and volunteers will also be available to aid the response to the oil spill and deploy resources. Parallel to these, BP is today setting up offices in each of these communities manned by company staff to provide information on what is happening, what is being done and any developments. These will connect with local government officials, community and other groups to provide information on developments. To harness the many offers of help BP has received, these offices will also collect names of any people wanting to assist with the response, and will co-ordinate identification of activities with which untrained personnel may be able to assist.
Case Case2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document8715-1 10002-10 Filed Filed 02/28/13 05/15/13 Page Page 91 of 4 of 167 4 These efforts are in addition to the ongoing work with Transocean, MMS, the US Coast Guard, and the other organizations within the Unified Command to do everything possible to stop the flow of oil on the sea bed.
Efforts to stem the flow of oil from the well, currently estimated at up to 5,000 barrels a day, are continuing with six remotely-operated vehicles (ROVs) continuing to attempt to activate the blow out preventer (BOP) on the sea bed. By this weekend the Transocean Development Driller III is scheduled to spud a relief well intended to secure the existing well. Drilling of this well is expected to take two to three months. Work is also continuing to produce a subsea collection system capable of operating in deep water to funnel leaking oil to the surface for treatment. This is expected to be ready for deployment in the next few weeks. Preliminary estimates indicate that current efforts to contain the spill and secure the well are costing the MC252 owners about $6 million per day. This figure is expected to rise as activity increases. It is too early to quantify other potential costs and liabilities associated with the incident. Press enquiries : U.S. Coast Guard Joint Information Center 985-902-5231 BP Press Office London +44 20 7496 4076 www.deepwaterhorizonresponse.com - ENDS -
SIGNATURES
BP p.l.c. (Registrant)
Dated: 30 April 2010 /s/ D. J. PEARL .............................. D. J. PEARL Deputy Company Secretary
Exhibit 9
Case Case2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document8715-1 10002-11 Filed Filed 02/28/13 05/15/13 Page Page 93 of 2 of 167 4 SECURITIES AND EXCHANGE COMMISSION
Form 6-K
Report of Foreign Issuer
Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934
for the period ended 4 May 2010
BP p.l.c. (Translation of registrant's name into English)
1 ST JAMES'S SQUARE, LONDON, SW1Y 4PD, ENGLAND (Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F |X| ---------------
Form 40-F ----------------
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes ---------------
No
|X| ----------------
press release
May 4, 2010
WORK BEGINS TO DRILL RELIEF WELL TO STOP OIL SPILL
BP today announced that work has begun to drill a relief well to intercept and isolate the oil well that is spilling oil in the US Gulf of Mexico. The drilling began at 15:00CDT (21:00BST) on Sunday May 2. The new well, in 5,000 feet of water, is planned to intercept the existing well around 13,000 feet below the seabed and permanently seal it. The new drill site is about half a mile on the seabed from the leaking well in Mississippi Canyon block 252, and drilling is estimated to take some three months. "This is another key step in our work to permanently stop the loss of oil from the well," said BP Group Chief Executive Tony Hayward. "At the same time we are continuing with our efforts to stop the leak and control the oil at the seabed, to tackle the oil offshore, and to protect the shoreline through a massive effort together with government agencies and local communities." BP has also carried out a second approved trial injection of dispersants directly into the oil flow at a point close to the main leak on the seabed. The technique is intended to efficiently mix the oil and dispersant, breaking up and dispersing accumulations of oil and allowing it to degrade naturally and reduce surface impact. The suggestion for this innovative technique came from the companies across the oil industry that BP approached last week for further ideas and expertise to help BP control the well and tackle the spill. Rapid progress is also being made in constructing a coffer dam, or containment canopy. A 14 x 24 x 40 foot steel canopy has already been fabricated and other-sized canopies are under construction and being sourced. Once lowered over the leak site and connected by pipe, the canopy is designed to channel the flow of oil from the subsea to the surface where it could be processed and stored safely on board a specialist vessel. Weather permitting, first installation of a canopy on site is expected to start in a little over a week, allowing the process of testing and commissioning to begin. Only once this is complete will the effectiveness of the system be demonstrated. At the seabed, BP continues to use up to eight remotely operated vehicles (ROVs) to work on the blow-out preventer and subsea equipment. Accurate estimation of the rate of flow is difficult, but current estimates by the US National Oceanic and Atmospheric Administration (NOAA) suggest some 5,000 barrels (210,000 US gallons) of oil per day are escaping from the well. On the surface, weather hampered surface operations over the weekend but is forecast to improve in coming days. BP currently has 230,000 gallons of dispersant available to deploy once the sea state is calm enough and a further 208,000 gallons on order. Offshore booms and specialist oil spill response vessels, skimmers and barges will return to operation in calmer seas, treating and collecting as much oil as possible before it reaches the coast. The onshore activity is focused on six locations in the potentially affected states: Venice and Port Sulphur, Louisiana; Pascagoula and Biloxi, Mississippi; Mobile, Alabama; and Pensacola, Florida. Staging posts are in place stocked with people and material to help protect the shoreline in each area. Work is continuing to install marine protection booms along the coast. Hundreds of thousands of feet of boom have been deployed and, to date, 2,000 volunteers have been trained to assist in the response effort.
Whilst difficult to accurately estimate, the cost to the MC252 owners of the efforts to contain the spill and secure the well is currently estimated to be more than $6 million per day. This figure is rising as activity increases. It is too early to quantify other potential costs and liabilities associated with the incident. Press enquiries: BP Press Office London +44 20 7496 4076 BP Press office, US: +1 281 366 0265 U.S. Coast Guard Joint Information Center 985-902-5231 www.deepwaterhorizonresponse.com - ENDS -
SIGNATURES
BP p.l.c. (Registrant)
Dated: 4 May 2010 /s/ D. J. PEARL .............................. D. J. PEARL Deputy Company Secretary
Exhibit 10
Exhibit 11
Exhibit 12
Case Case 2:10-md-02179-CJB-SS 2:12-cr-00292-SSV-DEK Document Document 10002-14 2 Filed Filed 11/15/12 05/15/13 Page Page 1 of 21 of 58
Case Case 2:10-md-02179-CJB-SS 2:12-cr-00292-SSV-DEK Document Document 10002-14 2-1 Filed Filed 11/15/12 05/15/13 Page Page 1 of 3 56 of 58
Case Case 2:10-md-02179-CJB-SS 2:12-cr-00292-SSV-DEK Document Document 10002-14 2-1 Filed Filed 11/15/12 05/15/13Page Page 8 of 1056 of 58
Case Case 2:10-md-02179-CJB-SS 2:12-cr-00292-SSV-DEK Document Document 10002-14 2-1 Filed Filed 11/15/12 05/15/13Page Page 9 of 1156 of 58
Case Case 2:10-md-02179-CJB-SS 2:12-cr-00292-SSV-DEK Document Document 10002-14 2-1 Filed Filed 11/15/12 05/15/13 Page Page 10 12 of 56 of 58
Exhibit 13
Exhibit 14
Exhibit 15

1 1 2 3 4 5 6 7 IN RE: OIL SPILL by the OIL RIG, DEEPWATER HORIZON in the GULF OF MEXICO, April 20, 2010 MDL NO. 2179 SECTION "J" JUDGE BARBIER MAG. JUDGE SHUSHAN UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
13 14 VOLUME 1 15 16 17 18 19 20 21 22 23 24 25 Mr. Duke Williams Mr. Christopher Zainey WILLIAMS LAW GROUP 909 Poydras Street, Suite 1650 New Orleans, Louisiana 70112 (985) 876-7595 APPEARANCES: Deposition of DAVID RAINEY, taken at Pan - American Building, 601 Poydras Street, 11th Floor, New Orleans, Louisiana, 70130, on June 2, 2011.
GAUDET, KAISER, L.L.C. Board-Certified Court Reporters
Case 2:10-md-02179-CJB-SS Document 10002-17 Filed 05/15/13 Page 3 of 5 182
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
you could please turn to Tab 23 in your binder.

A. Q.
Okay. And this is an e-mail, it starts From Doug Suttles to John Lynch
at the top:
and Andy Inglis. But if we work down the e-mail chain, it starts with you forwarding a flow rate note to Mr. Suttles. And the attachment
to -- and this e-mail is dated May 19th, 2010. And the attachment is -- is a document that is entitled: Mississippi
Canyon 252 #1 Flow Rate Calculations. Mr. Rainey, is this the memo that you referred to earlier when you were discussing or we were discussing your May 17th calculations?
A.
I believe it is, yes.
I'm not
used to seeing it printed in this format but -Q.
Yeah, for whatever reason that's And if
the way it printed when we got it.
you take a look at that and tell me whether it appears that the memo and the attachments
GAUDET, KAISER, L.L.C.
Board-Certified Court Reporters
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
to that memo appear to be complete to you. (Discussion off the record.)

A.
Yes, this looks to be complete
at first glance.
Q.
(BY MR. CERNICH)
And did you
prepare this memo, Mr. Rainey?

A. Q.
Yes, I did. And did anyone assist you in
preparing this memo?

A. Q.
It was reviewed by Doug Suttles. Did he ask you to prepare this
memo?
A. Q.
No. Did someone ask you to prepare
this memo?
A.
A request was made.
This was my
response to the request, not a specific request to prepare a memo.

Q.
Okay.
And what was -- what was
the request? MR. LANCASTER: Object and ask you to
lay some additional foundation as to who, what and where because I'm going to be instructing the witness not to answer some questions based upon privilege grounds.
GAUDET, KAISER, L.L.C.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 memo.
MR. CERNICH:
Q.
Okay. Why did you
(BY MR. CERNICH)
prepare this memo? MR. LANCASTER: That would call for
disclosure of conversations with counsel, so I instruct the witness not to answer based upon privilege. You could get the "who" out
there, if you want.

Q.
(BY MR. CERNICH)
Who asked you
to prepare this memo?

A.
Nobody asked me to prepare the
I prepared the memo in response to a
request from BP's counsel.

Q. A. Q.
From BP's? Counsel. Counsel. Did BP's counsel
review drafts of this memo?

A. Q.
Yes, they did. And is this the final version of
that memo?
A.
I believe it is.
The only --
there was one edit that was made to the final sentence, and I can't remember whether this is the final or the original version.
Q.
Did you -GAUDET, KAISER, L.L.C.

Exhibit 16
to

Exhibit 17
to

Exhibit 18
Exhibit 19
Exhibit 20
to

Exhibit 21
to

Exhibit 22
***************** VOLUME 1 *****************
Deposition of Timothy Ph.D., BP, Inc., taken at the Building, 601 Poydras Street, Orleans, Louisiana, 70130, on December, 2012.
James Lockett, Pan-American 11th Floor, New the 18th day of
29
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q.
Okay.
You mentioned that you supervise a How many people do you
Team of Engineers. supervise?
MR. PAVLIS: currently? MR. BENSON: MR. PAVLIS: A.
You're asking
Yeah. Okay.
Right now, I supervise three people
directly. Q. people? A. In Sunbury, Ian Hudson. THE WITNESS: names? THE COURT REPORTER: Q. A. Sure. Do I need to spell (By Mr. Benson) Okay. And who are those
(By Mr. Benson) That would be helpful. Hudson, H-u-d-s-o-n. And Kieron Hopper. And in Houston,
That's K-i-e-r-o-n, H-o-p-p-e-r. Yong Qian Fan. surname F-a-n. THE COURT REPORTER: Q.
Yong Qian is Y-o-n-g, Q-i-a-n,
Thanks.
(By Mr. Benson) And did you say earlier
your title was Flow Assurance Engineer? A. My title at the time I joined BP was Flow
Assurance Engineer, and my title now would be
30
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Discipline Lead for Flow Assurance. Q. Okay. Has the substance of your job
changed since you've joined BP? A. The substance was not. The balance has
changed more in favor of supervisory rather than delivery. Q. A. Okay. Who do you report to now at BP?
Can you clarify whether you mean in a
managerial sense or in a technical sense? Q. A. I guess both. In a managerial sense, I currently report He's the In a
to John Osborne, who is my Team Leader. Team Leader for Subsea Floating Systems.
technical sense, much of my work is connected with Trevor Hill. And insofar as it concerns a
design project rather than a current operation, then much of my work relates to Farah Saidi. Q. Okay. THE WITNESS: Saidi? THE COURT REPORTER: got it. THE WITNESS: Q. Osborne. Thank you. No, sir. I've Do I need to spell
(By Mr. Benson) You mentioned John Can you briefly describe the management
89
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q.
Okay.
Well, let's go as you understood
it in May of 2010. MR. DRAKE: MR. PAVLIS: objection. A. Well, in -- in May 2010, I would have The same objection. I'll join in the
understood that higher resistance to flow would drive a higher differential pressure. And you
don't know what the size of that restriction is, so all you're talking about there is a scale of how resistance would play against other parameters that you don't know. MR. BENSON: record. THE VIDEOGRAPHER: 10:46 a.m. The time is Let's go off the
We're off the record, ending Tape 2.
(Recess from 10:46 a.m. to 11:00 a.m.) MR. BENSON: Ready. All set? We're
THE VIDEOGRAPHER:
The time is 11:00 o'clock a.m. back on the record, beginning Tape 3. Q. (By Mr. Benson) Okay.
Dr. Lockett, could This is an
you turn to Tab 1 in your book.
exhibit that's been previously marked as 9445. Can you take a look at this? And I want to ask
90
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
you a few questions about it. A. Q. A. Q. (Reviewing document.) Have you reviewed it? I'm comfortable with it, yes. Okay. Now, this -- the cover is an Okay.
E-mail that you sent to Farah Saidi, Trevor Hill, and Ian Stilwell on April 27th, 2010; is that right? A. Q. That is correct. Okay. And what analysis were you
providing here? A. We were starting to develop a -- an
analysis tool which would describe the system of well, BOP stack, and riser for the purpose of evaluating the option of using hydrates to block the top of the well. Q. Okay. I take it this is something that
Trevor Hill had asked you to work on? A. Q. Yes, it is. Okay. And this is sort of your initial
report to Mr. Hill and others about what you've found so far? A. Q. Yes, it is. Okay. And this is sort of what we talked
about earlier, that after you do a modeling run
91
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
or modeling analysis, you would summarize it in some kind of document to the person who asked for that run? A. This is the start of -- of that, yeah,
continuing that process of how it would normally work, yes. Q. Okay. Let me ask you to wor -- look at You say:
the E-mail, the cover E-mail here.
"This is from this morning and has as series of key points landing at the identification that we must either have a restriction to inflow (formation collapse) or restriction to outflow (crimp) in order to have realistic" flow -"flowrates in the range 5000" to "20000" barrels per day. Did I read that correctly? A. Q. You did. Okay. And so that was your conclusion on
April 27th, correct? A. You used the word "conclusion." I've
used the word "identification."
There may be
a -- a difference in our interpretation of those words, but in general form, that -- that's a summary of where this work takes me or took me. Q. Okay. When you say "(formation
155
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A. Q. A.
(Reviewing document.) If we could mark this as 10646. It's already marked. MR. PAVLIS: It's already marked. Oh, yes. Thank you.
Q. Okay. 9446.
(By Mr. Benson)
So this has been previously marked as
Dr. Lockett, do you recognize this document and the attachments? A. Q. A. Yes, I do. Okay. Describe what this analysis was. This E-mail
(Reviewing document.)
discusses methods of estimating flow rate from quantities that are measurable or could be measurable in the system as it existed at that time and explores how those methods would play out given certain assumptions about the system in order to provide -- to provide scales for velocity, thermal, and pressure measurements, to link those back to flow rates. Q. Okay. And why -- why was this something
you were working on on May 3rd? A. My recollection is that I was asked to
prepare a summary of methods that could be used by a phone call to Trevor.
156
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q. A. Q.
And so this was your response? And this is my response. Okay. And you -- you've titled the Best
E-mail, you've given it the "Subject: estimate."
It's fair to say this is your best
estimate at the time? MR. DRAKE: A. Objection, form.
I've titled the E-mail "Best estimate"
for the purposes of conveying the view that we have a number of different methods that can be deployed to provide an estimate of flow, and any one of them on their own constitutes an estimate, when a fact is used to interpret the scales that I've explored here. And a best estimate can be
derived when we have corroboration between those different methods. Q. (By Mr. Benson) Okay. And let's turn
to -- I think you should have a spreadsheet that looks sort of like this (indicating), with three plots and three tables. A. Q. Yes, I do. Okay. And is this the guts of the
analysis that you were just referring to? A. The guts of the analysis really exist
on -- on the pages behind this, and this is a
***************** VOLUME 2 *****************
Continuation of the Deposition of Timothy James Lockett, Ph.D., taken at the Pan-American Building, 601 Poydras Street, 11th Floor, New Orleans, Louisiana, 70130, on the 19th day of December, 2012.
425
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
my Counsel on a matter of privilege? Q. (By Mr. Davis-Denny) Yes. MR. DAVIS-DENNY: the clock, though. THE VIDEOGRAPHER: is two -- going off the record? MR. DAVIS-DENNY: THE VIDEOGRAPHER: We're off the record. (Recess from 2:49 p.m. to 2:54 p.m.) MR. DAVIS-DENNY: THE VIDEOGRAPHER: The time is 2:54 p.m. record, beginning Tape 15. A. Q. Can you repeat the question? (By Mr. Davis-Denny) Your analysis was Ready. All set? We're back on the Yes. It's 2:49 p.m. The time Can we please stop
that the flow rate had increased during the course of the Top Kill, correct? A. The opinion I formed at that time, based
on the work I had conducted at that time, was that the flow rate had increased between the start of Top Kill 1 and the end of Top Kill 3. Q. Okay. Could you please go back to U.S. This was the one we
Tab 13, Exhibit 9446?
started to look at earlier.
426
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A. Q.
Okay. This is your May 3rd E-mail to Trevor
Hill with the "Subject" line "Best estimate"? A. Q. That's correct. Okay. Now if you'll please turn to the
attachment, and I believe there's an attachment in there that's a long, legal-size piece of paper, correct? A. Q. A. Q. (Nodding.) And you're looking at that right now? Yes, I am. Okay. And I'd like to focus your
attention on the numbers that are in the tables on the -- towards the left-hand side of that legal-size piece of paper. Do you see that? A. Q. Yes, I do. Okay. And the second column in each of
your tables, is that a flow rate number in stock tank barrels per day that you are estimating? MR. DRAKE: A. Objection, form.
It's a flow rate in stock tank barrels
per day of the OilPhase, and I'm using it in a parametric study, so it is an output from that study as a function of hole size.
427
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q.
(By Mr. Davis-Denny) Okay.
And explain
to me, you have three different tables here, one of which says "Outlet of Riser," one of which says "BOP," one of which says Downstream "of Crimp." But there does not appear to be a
tremendous amount of difference between the flow rates in these tables, or what is the difference between these tables, or among these tables, I should say? MR. DRAKE: A. Objection, form.
I believe these three tables index a
common set of OLGA calculations, and what I'm doing in the three tables is pulling out information that's three different places, "Outlet of Riser," "BOP," downstream "of crimp," in order to form the three graphs that's shown on the right-hand side of the page. Q. (By Mr. Davis-Denny) Okay. So at "Outlet
of Riser," you have seven cases that vary based on the size of the hole; is that correct? A. Q. That's correct. And six of those seven cases yield flow
rates higher than 5,000 barrels of oil per day, correct? MR. DRAKE: Objection, form.
428
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A.
Six of those cases have flow rates higher
than 5,000 barrels per day in them, yes. Q. (By Mr. Davis-Denny) And four of the
seven cases, more than half, have flow rates higher than 20,000 barrels of oil per day, correct? MR. DRAKE: A. Objection, form.
Four of the seven cases have flow rates
higher than 20,000 barrels per day, yes. Q. (By Mr. Davis-Denny) And to arrive at a
flow rate under 20,000 barrels of oil per day, you have to assume that the hole size through which the oil is flowing is less than one inch; is that correct? MR. DRAKE: A. Objection, form.
Subject to the validity of the rest of
the modeling assumptions implicit in this work, yes, that's correct. Q. (By Mr. Davis-Denny) Okay. Did you have
any evidence that it was more likely than not that the hole size was less than one inch in May -- let's say in May of 2010? MR. DRAKE: A. Q. No, I did not. (By Mr. Davis-Denny) I'd like to show you Objection, form.
Exhibit 23
to

Exhibit 24
to

Exhibit 25
***************** VOLUME 1 *****************
Deposition of 30(b)(6) DEPOSITION OF BP, BY AND THROUGH CHARLES HOLT, taken at Pan-American Building, 601 Poydras Street, 11th Floor, New Orleans, Louisiana, 70130, on the 28th day of November, 2012.
261
1 2 3 4
02:37
exactly what the numbers were, but some kind of worst -- worst case modeling, because if we can stab it with some worst case numbers, then, you know, we'll always have lesser numbers. That's the way the modeling -- and
5 6 7 8 9
as it turns out, we would have been able to stab it with some worst case numbers, and so at the end of the day whatever the flow rate was wouldn't have affected because we used worst case numbers. I don't remember what
02:37
10 11 12 13 14
that number was specifically, but... Q. (BY MS. STRIPPOLI) But put --
putting the numbers aside and putting the actual flow rate aside, flow rate in and of itself, the stream of flow coming out of the well impacts whether or not you can exercise that source control option of putting a second BOP on that original BOP, correct? MR. DRAKE: MR. CASEY: A. Objection; form. Same.
02:37
15 16 17 18 19
02:37
20 21 22 23 24
Yes, there were -- there were
calculations done to determine the impact of the flow coming out of the first BOP and our ability to stab a second BOP, because of that concern.
02:38
25
Exhibit 26
[ To:
Cc:
chns Ma ce lChns Matice@streSS COml
Friday,Apl1 30,20104:34 PM Simpson,Richard:W am Burch: im We ings(BPli Cha ie Hon(BP)

Harbinder Pordal:Anup Pau! RE:Flow Rate for l mode ng run:BP Ma ndo PIume Modehng Parameters
Confidential
Sublect:
sensitivity:
Understood
christopher l. l.'lat ic e, Ph.0., PE.(*) Principal Stress Engineering Services, Inc

5380 Courseview Dr.
llason, OH 45044 Phone:5lf-335-5701

Fax:513-336-5817
chris. maticeostress - com An Employee o{ned company mlrlr. stress. com
t Licensed in
-----Original
OH
and Tx
Message-- - --
I mai lto: Ric hard. SimDsonobp. com] sent: Friday, April 30, 2O7O 5:29 PM To: Chris Hatice; t/iltiam Burch; lim tlellings (BP); charlie Holt (BP) cc: Harbinder Pordal.; Anup Paul Subject: Flow Rate for first modeling run : BP lilacondo Plume titodeling
From: Simpson, Richard
Parameters
Importan(e: High sensitivity: Confidential
chris,
l,lOTE
: Confidential information
7O,OOO bpd
For the first runJ use
For the second runr 35,000
bpd
Third run, 77,5oo
bpd
Regards,
Richard Simpson, tilaster Mariner /
HNI OIM
titarine Specialist, Canadian Beaufort sea, BP NME
l'larine Authority,
BP Canada
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Prol ect
2361049
RepO"
SES 00066315

Direct 1 281.366_2275 Hobile 1 713 357.8973 Richard.Simpson Bp.cOm
Original Message Fron: Chris Matice [malltO:Chris Maticonstress com] Sent: Friday, Apri1 30, 2010 4:19 PM To: Willian Burch Cc: Simpson, Richattd Hanbinder Pordal, Anup paul Subject: RE: BP Macondo Plune Modeling parameters V
Bill:
These runs wi11 likely take lo - 12 hours each

Thanks,
We should start with our best estimate
chris Christopher Matice, Ph D , p (*) Principal Stress Engineer ng Serv ces, In( 5380 Coursev ew Dr_ Ma50n, OH 45040 Phone: 513-336-6701 Fax: 513-336-6817 chris maticqpstress com An Emp10yee Owned Company www stress.com
Licensed in OH and Tx
Message Fronl: Will18m BurCh [mailtO:bburch wildwell com]
Original
Sent: Friday, Apri1 30, 2010 5:06 PM To: Chris Matice Cc: Simpson, Richard; Harbinder pOrdal; Anup Paul subject: Re: BP macOndo Plume modeling Parameters
Agreed I.ll get prelimiary still being worked_ nterprise stack drawings forwarded
the
design options are
Rate estimations are very unkown as we discussed 5,000 bbl m n mun then run some sens v ties on flow maybe 10,000, 20,000, 40,000, 80,000, 160,000 bbls if this is easy. If there is significant computational tine in each run, let's discuss the best way to capture the most value for the least number of runs
Bill
sent from my iPhone

On Apr 30, 20 0, at 4:01 P , Chris Matice.. Chris.Maticopstress.com mailto:chris.Maticeastress (om> wrote: Bill:
ProDect:
2361049
SES 00066316
Case 2:10-md-02179-CJB-SS Document 10002-28 Filed 05/15/13 Page 4 of 5 Thanks for this data. This gives us enough geometrical information to start modeling the Horizon BOP. We also have sufficient material data.
'
As we discussed, we will start the modeling effort at SOOO bpd flow rate, flowing vertically from the cut 18.75 inch riser. Based on the data pnovided we Hill use a gas-to-oil ratio of 29Og SCF /b61.
will simulate the stack with the Enterprise BoP in pl.ace and with flow existing the perforations in the riser. Please forrard dimensions of the Enterprise BOP and the perforatlon pattern on the riser as soon as you have these available.
Our second model
Thanks,
Chris
Christopher
Princ
ipal
l.
Matice, Ph.D., P.E.(")
Stness Engineering Services, Inc. 5380 Courseview Dr.

I.tason, OH 45040
Phone:513-336-6701 Fax:513-336-6817 <mailto: chris. maticeostress. com>chris. naticeostress. com<nailto: chris . mat iceostress. com> An Employee O{ned Company <httD: //wt,u. stress. com>wv,r. stress. com<httD ://wuu. stress.com>
Licensed
in
oH and Tx
From: !,lilliam Burch [mailto: bburchouildwel l. com] Sent: Friday, April 34, 2OlO )t37 PM To: Chris l.latice Cc: simpson, Richard subject: BP Macondo Plume l.lodeling Parameters
Chris,
See attached data requested
clarifications, please don't hesitate to call or email.

Bi 11
for
plume
modeling.
If
you have any questions or need Thanks very muchJ
william Burch wild Well Control, Inc. well control Engineer <mai lto: wburcl6,rildwe1l . com>wburcl6t{i om) I <http: //wwt,.wilduell. com>
wuw. r{i
1dwe11 . com<mailto: wburcl$r,{i1dwel1 . c
2A7.7a4.47OO phone + 281.784.4750 +ax "Experience Makes The Difference"
ldwel1 . com<http: ,//wr{tr. wildue1l.. com)
of this message are provided for informational purposes only. t{ild Hell Control, does not guarantee the accuracy or (ompleteness of the contents and assumes no liability whatsoever for loss or damage arising out of recipient's reliance on or use of the information provided herein. This message contains confidential information and is intended solely for the named recipient(s). If you are not the intended recipient, please immediately contact the sender by return e-mail and destroy all copies of the original, messa8e. Thank you.
The contents
Inc.
Project |
2361049
SES 00066317
Exhibit 27
From: Hill, Trevor Sent: Mon May 17 22: 14:51 2010 To: Wood, Douglas G Subject: FW: Pressure build-up Importance: Normal Attachments: image001.jpg Doug Please see point 1 as you interface with kill team ... Regards Trevor
From: Lockett, Tim Sent: 17 May 2010 23:00 To: Hill, Trevor Subject: RE: Pressure build-up
Trevor I have yet to review the ppt files from Ole. I am off-site tomorrow but be in on Wednesday to meet up. My thoughts (based on the covering email): 1) The apparent reliance in Ole's email on the 5 mbd number, which has little if no origin, is concerning. From all the different ways we have looked at flowrate, 5 mbd would appear to err on the low side. I will therefore be looking to see that the dynamic well kill modelling has been tested at higher well rates. If this hasn't been done, yet, then could you initiate this with Ole. 2) Maybe I am being pessimistic but my first thought when I heard of the fall in pressure upstream of the BOP is that this is bad news rather than good, my thought would go to reduced restriction within the BOP. The insertion of the insertion pipe has increased back-pressure at the kink - we should have seen an increase in pressure transmitted back to the upstream side of the BOP. Tim
From: Hill, Trevor Sent: 17 May 201015:31 To: Lockett, Tim Subject: FW: Pressure build-up
CONFIDENTIAL
BP-HZN-2179MDL04833812
From: Ole B. Rygg [mailto:Ole.Rygg@addenergy.no] Sent: 16 May 201017:26 To: Hill, Trevor Cc: Mix, Kurt; Thomas Selbekk Subject: RE: Pressure build-up
Hi Trevor, I have not yet, completed a report on all the findings due to the time contraints, but have instead included my findings in power point presentations. Please find two of those enclosed. As you can see (shut-in presentation), the last reduction in pressure drop at the weihe ad (Yesterday), will give more gas in the well and an increased gas cusion during shut-in. UNLESS, the reduction in wellhead pressure is due to an increased flow rate and the restrictions at the wellhead is giving away. This means a large hole in the BOP stack an less chance of ever being able to do a dynamic top kill, since the required rate through the stack to achieve the required pressure drop is to high. Be aware that we are working on the 5000 bopd case. That could be too optimistic. I am currently working on bullheading modelling for the top kill option. Please give me a call if you want to discuss. I have a local cell phone number: . 4093923095 Regards, Ole
cid:3310015153 18375562
Dr. Ole B. Rygg Managing Director, add wellflow as Vice President, Drilling & Production, add energy group
mob +47 91 1709041 dir +4766983291 1fax +4766983299 mail ole.rygg@addenergy.no

add wellflow as Billingstadsletta 19B 1P.O. Box 165 1N-1376 Billingstad 1Norway add energy. no
This message (including any attachments) contains confidential information intended for a specific
CONFIDENTIAL
BP-HZN-2179MDL04833813
individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this message and are hereby notified that any disclosure, copying, or distribution of this message, or the taking of any action based on it, is strictly prohibited.
From: Mix, KUli [mailto:KUli.Mix@bp.com] Sent: 16. mai 2010 17:48 To: Hill, Trevor Cc: Ole B. Rygg Subject: RE: Pressure build-up
Please include Trevor on the distribution of the latest modeling done on the current measured wellhead pressures. Kurt
From: Hill, Trevor Sent: Friday, May 14,20108:45 AM To: Mix, KUli Subject: Pressure build-up Kurt After the discussions yesterday I am keen to see any report produced by Ole Rygg on the flow modeling and pressure build-up please. I am happy to ask him directly, but wanted to check with you first. Regards Trevor Trevor Hill E&P Enghlee6ng Technical Authority - Flow Assurance +-1-1 (0)7879 -18697-1 BP Exploration Operating Co Ltd Registered oflice: Chelisey Road, Sunbury on Thames, Middlesex, TW16 7BP, United Kingdom Registered in England and Wales, number 305943 Flow Assurance BP Intranet Site Flow Assurance in BP Connect
CONFIDENTIAL
BP-HZN-2179MDL04833814

BP Oil Spill Litigation:U.S. Appeals Judge's Decision On Motion To Compel BP To Produce Documents Based On The Crime-Fraud Exception To The Attorney-Client Privilege

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Case 2:10-md-02179-CJB-SS Document 10002 Filed 05/15/13 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Case 2:10-md-02179-CJB-SS Document 10002 Filed 05/15/13 Page 2 of 5

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Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 1 of 32

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 2 of 32

False and Misleading Statements to the National Incident Command . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 3 of 32

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Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 7 of 32

Ex. 22 Ex. 23 Ex. 24 Ex. 25 Ex. 26 Ex. 27

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 8 of 32

attorneys, as BP itself explained to the Magistrate Judge in multiple filings.

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 9 of 32

First, the reviewing court determines whether the party asserting

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 10 of 32

documents reasonably related to the preparation of the Crime-Fraud Communications.

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 11 of 32

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 12 of 32

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 13 of 32

statement too was false, as BP admitted in its plea agreement:

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 14 of 32

As described above, BP admitted that it obstructed justice by -7-

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 15 of 32

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 16 of 32

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 17 of 32

No. 2:12-cv-02774 (E.D. La.), Dkt. No. 2-1.

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 18 of 32

In its opposition, BP effectively conceded documents in

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 19 of 32

First, all of the Crime-Fraud Communications involved BP

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 20 of 32

The standard of review for this appeal is de novo.

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 21 of 32

However, the reason for the protection

Where the attorney-client privilege See, e.g., United

communication relates to future wrongdoing, the privilege is destroyed.

showing is made, the crime-fraud doctrine applies.

Id. The second element establishes

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 22 of 32

If it does, the second question

crime or fraud occurred.

The May 19 email to Admiral Landry included some of

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 23 of 32

requirement for those documents.

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 24 of 32

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 25 of 32

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 26 of 32

and applied it to each document at step 2.

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 27 of 32

is unclear. 68 F.3d 38, 41 (2d Cir. 1995).9

The Fifth Circuit makes clear that a party need

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 28 of 32

IT IS SO ORDERED this day of _, 2013, at New Orleans, Louisiana.

* VOLUME 1 *

* VOLUME 2 *

* VOLUME 1 *