BP M4 Spoliation Sanctions Against HESI (Rec Doc 8977) With Attachments Amd Memo

Case 2:10-md-02179-CJB-SS Document 8977 Filed 03/21/13 Page 1 of 3
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: OIL SPILL BY THE OIL RIG * MDL NO. 2179 DEEPWATER HORIZON IN THE * GULF OF MEXICO, ON APRIL 20, 2010 * SECTION: J * * THIS DOCUMENT RELATES TO ALL * JUDGE BARBIER MAGISTRATE JUDGE SHUSHAN CASES **************************************************************************** BPS MOTION FOR SANCTIONS RESULTING FROM HALLIBURTONS DESTRUCTION AND SPOLIATION OF EVIDENCE BP Exploration & Production Inc. and BP America Production Company (BP) respectfully move this Court, pursuant to Federal Rule of Civil Procedure 37 and this Courts inherent authority, for sanctions resulting from Halliburton Energy Services, Inc.s destruction and spoliation of evidence. As confirmed by Halliburtons own employees and documents, Halliburton has destroyed and spoliated critical evidence concerning the role of the Halliburton cement slurry design in the events of April 20, 2010. Halliburtons conduct has undermined the integrity of these proceedings and severely prejudiced BP and the other parties. This prejudice to BP and other parties has been reaffirmed and magnified by events during the trial, including Halliburtons recent disclosure that it has just discovered a cement sample taken off the Deepwater Horizon rig from the same batch used in the Macondo cement job. WHEREFORE, for the foregoing reasons and those set forth in the accompanying Memorandum in Support of Motion for Sanctions Resulting from Halliburtons Destruction and Spoliation of Evidence, BP respectfully requests that the Court enter an order: (1) finding that Halliburtons final cement design was unstable and caused hydrocarbons to enter the wellbore, (2) finding that the off the side tests conducted by Rickey Morgan and Tim Quirk in April/May
2010 establish that the cement used on the Macondo well on April 20, 2010 was not stable, and (3) allowing opinion testimony by deposition designations of Greg Garrison and Craig Gardner regarding their post-incident testing.
Dated: March 21, 2013
Respectfully submitted, /s/ Don K. Haycraft Don K. Haycraft (Bar #14361) R. Keith Jarrett (Bar #16984) LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139-5099 Telephone: (504) 581-7979 Facsimile: (504) 556-4108 J. Andrew Langan, P.C. Matthew T. Regan, P.C. Hariklia Karis, P.C. KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 312-862-2000 (Tel) 312-862-2200 (Fax) Robert C. Mike Brock COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004-2401 202-662-5985 Attorneys for Defendants BP Exploration & Production Inc. and BP America Production Company
CERTIFICATE OF SERVICE I hereby certify that the above and foregoing pleading 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, on this 21st day of March, 2013.
/s/ Don K. Haycraft
Case 2:10-md-02179-CJB-SS Document 8977-1 Filed 03/21/13 Page 1 of 25
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: OIL SPILL BY THE OIL RIG * MDL NO. 2179 DEEPWATER HORIZON IN THE * GULF OF MEXICO, ON APRIL 20, 2010 * SECTION: J * * THIS DOCUMENT RELATES TO ALL * JUDGE BARBIER MAGISTRATE JUDGE SHUSHAN CASES **************************************************************************** BPS MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS RESULTING FROM HALLIBURTONS DESTRUCTION AND SPOLIATION OF EVIDENCE The Court will never see certain critical evidence relating to the failure of Halliburtons cement at the Macondo well on April 20, 2010. As confirmed by Halliburtons own employees and documents, Halliburton has destroyed and spoliated that evidence. Halliburtons conduct has undermined the integrity of these proceedings and severely prejudiced BP and the other parties. This prejudice has been reaffirmed and magnified by events during the trial, including Halliburtons recent disclosure that it has just discovered a cement sample taken from the Deepwater Horizon rig from the same batch used to cement the Macondo well. Under well-established case law, Halliburtons preservation and discovery dutieslike those of all other partiesextend beyond issuing a litigation hold to its employees. Halliburton has a duty to take appropriate affirmative steps to monitor the preservation and production of evidence. Halliburton has failed to do so here. Indeed, this rig sample was responsive to subpoenas and Halliburton should have produced it years ago so that it could have been tested on a timely basis for use at trial and before it deteriorated further. This is BPs second motion for sanctions relating to Halliburtons destruction of evidence in this case. In 2012, the Court granted-in-part BPs initial motion, ordering forensic testing and
modeling but denying BPs request for an adverse inference based on Halliburtons destruction of the results of post-incident cement testing. In denying BPs request for an adverse inference at that time, the Court found [f]or the reasons presented by Halliburton, BP has not demonstrated that it has been prejudiced. (Order at 1, Jan. 20, 2012, Rec. Doc. 5307 (Rec. Doc. 5307).) One of the reasons presented by Halliburton in opposing BPs adverse inference request was that the test results Halliburton destroyed were not critical because they were done on a cement sample made using ingredients from a lab (lab stock) and not a sample actually taken from the rig (rig stock or rig blend) and, thus, the destroyed test results could be replicated using additional available lab stock. (Halliburton Energy Services, Inc.s Surreply in Oppn to Mot. for Spoliation Sanctions at 4, Jan. 5, 2012, Rec. Doc. 5082 (The lab stock that was used for the post-incident tests was not used in either the final pre-incident testing or in the Macondo well itself. And because the lab stock differed in composition from the rig stock, tests using lab stock cannot evidence how the slurry pumped on April 19, 2010, performed downhole.).)1 Notably, in opposing BPs prior sanctions motion in December 2011, Halliburton assured the Court that the actual rig samples that it contends are critical were preserved: Shortly after the Incident, HESI also secured all sample cement ingredients received from the Deepwater Horizon under lock and key. (Halliburton Energy Services, Inc.s Resp. in Oppn to Mot. for Spoliation Sanctions at 9, Dec. 19, 2011, Rec. Doc. 4961 (Rec. Doc. 4961) (emphasis added).) However, as has now been revealed in the midst of trial, Halliburton did not disclose until March 13, 2013 that a
According to Halliburton, Halliburtons position is that [rig stock is] the most relevant for testing purposes. (Tr. 3172:23-24) (emphasis added). But, even if Halliburton were correct that rig stock is the most relevant, that certainly does not mean that lab stock is irrelevant. BPs position is that the lab stock testing is highly probative evidence. Indeed, Halliburton employee Tommy Roth testified that results of lab stock testing would be good information to know. (Tr. 3266:4).
significant amount of the sample cement ingredients received from the Deepwater Horizon had in fact not been produced. Since BPs first sanctions motion, the prejudice to BP from Halliburtons conduct has been reaffirmed and magnified by subsequent events, including: First, on March 13, 2013nearly three years after the blowout and three weeks into the Phase One trialHalliburton disclosed that it had discovered a sample of cement taken from the Deepwater Horizon rig, which it referred to as Kodiak well cement. (Exhibit 2, E-mail from D. Godwin to J. Shushan (Mar. 13, 2013).) Five days later, on March 18, 2013, in an unsigned and unverified update, Halliburton disclosed that this Kodiak well cement (Sample #63981) was, in fact, a sample of the cement blend used at the Macondo well that had traveled with the Deepwater Horizon from the Kodiak well to the Macondo well on January 31, 2010.2 (Exhibit 3, E-Mail from Jenny Martinez to J. Shushan (Mar. 18, 2013) (HESI Update Regarding Kodiak Materials).) Sample #63981 was then sent to the Halliburton laboratory on February 23, 2010. Id. A photograph produced with the update shows that the 5-gallon bucket of undisclosed cement was labeled From DW Horizon. (Exhibit 4, D-3257 (TREX-023056).) Compounding the significance of this disclosure, Halliburton has asserted since 2010 that the Cementing Components deteriorate over time. (Rec. Doc. 494 at 5) (emphasis added). Needless to say, the newly disclosed Sample #63981 likely has been deteriorating over time according to Halliburton. The importance of Halliburtons disclosure is heightened by the fact that, in its Opening Statement and throughout the trial, Halliburton has contended that Non-Rig Samples Are Not Representative of Rig Cement Testing. (Exhibit 1, D-8008.1; see also Tr. 183:21-184:2). In other
As discussed below, Halliburtons March 18, 2013 disclosure incorrectly asserts that the Deepwater Horizon arrived at the Macondo well on February 20, 2010.
words, Halliburton has used the availability of rig samples for testing as both a sword and a shield: while contending that only testing on rig samples is relevant, Halliburton has prevented testing of the undisclosed and deteriorating rig blend through an affirmative decision to exclude those materials from the materials that were produced to the United States Government. (Tr. 49204922.) Moreover, Sample #63981 was by far the largest (over 3.75 gallon) rig sample available for testing in 2010more than twice the size of the identical (1.5 gallon) sample Halliburton turned over in November 2010 to the USCG/BOEM Joint Investigation Team (JIT) for testing (Sample #67314) by Oilfield Testing & Consulting (OT&C). Because the volume of Sample #67314 was very limited, it severely restricted post-incident testing on and investigation of the rig blend. (See, e.g., E-mail from Sarah Himmelhoch, DOJ, to Rob Gasaway (May 31, 2011), Rec. Doc. 2830-9 (You are asking us to choose BPs proposed 60% gas content testing over the JITs choice of tests for use on a very limited amount of sampleapprox. 1.5 gallons of Rig Sample . . . .) (emphasis added).) If the newly disclosed sample of rig stock had been available, the testing requested by BP and other additional testing could have been conducted for use at trial. Second, Tommy Roth, Halliburtons Vice-President of the Cementing Product Service Line at the time of the incident, provided new information at trial about post-incident tests that Halliburton failed to disclose to Congress and other investigative bodies during the May-September 2010 period. (Tr. 3250-3264). Roth testified that his notes of those tests, documenting WHEN ATTEMPT WAS MADE TO FOAM THE CEMENT, SLURRY WOULD NOT FOAM, were created in October 2010 and provided to Halliburtons attorneys by at least March 2011. (Tr. 3279:8-20; 3281:1-2). Yet Halliburton waited to produce Roths notes until October 17, 2011
after the July 2011 deposition of Roth and those of other Halliburton fact witnesses knowledgeable about testing issues. (Exhibit 5, E-mail from S. Kena Lopez to Anthony Irpino (Oct. 17, 2011).) Third, as the Court is aware, Halliburton conducted Displace 3D modeling of the cement job in May 2010, to determine if the spacer was sufficient to sweep the channel. After Halliburton evaluated the results of the Displace 3D Modeling, it deleted them. (Rec. Doc. 4961 at 9). When BP asked Halliburton for the Displace 3D modeling, Halliburton simply responded that it was gone. (Letter from Barbara Harding to Jenny Martinez (Nov. 11, 2011), Rec. Doc. 4799-12.) In its January 20, 2012 order, the Court granted BPs request for forensic examination of the computer hard drives used in the modeling. (Rec. Doc. 5307 at 2-3.) Since then, it has become clear that Halliburtons deletions left no remaining evidence: forensic examination of the hard drives yielded no trace of the Displace 3D modeling that Halliburton deleted. (Order [Regarding Jan. 20, 2012 Order on BPs Mot. for Spoliation Sanctions (Rec. Doc. 5307)], Rec. Doc. 7127 (Rec. Doc. 7127).) The cumulative effect of Halliburtons pattern of destruction and spoliation of evidence has been to deprive the Court and the parties of significant post-incident evidence relevant to the inherent quality and performance of the cement Halliburton provided for the job at the Macondo well, and the role of that Halliburton slurry design as a cause of the events of April 20, 2010. Accordingly, for the reasons explained further below, BP seeks appropriate sanctions including an order finding that: Halliburtons final cement design was unstable and caused hydrocarbons to enter the wellbore on April 20, 2010; The post-incident tests conducted by Rickey Morgan and Tim Quirk in April/May 2010 the results of which were destroyed by Halliburtonestablish that the cement used on the Macondo well on April 20, 2010 was not stable; and 5
The opinion deposition testimony of Chevron and OT&C witnesses regarding their postincident testing that Halliburton moved to exclude should now be admitted in light of the gap in cement testing evidence created by Halliburtons conduct. BACKGROUND A. Events Leading Up To The Courts January 2012 Ruling On BPs December 2011 Spoliation Motion.
I.
On April 29, 2010, BP requested that Halliburton provide Halliburton Cement samples and data . . . Cement and additive samples used in the 9-7/8 x 7 casing string. (These are required for laboratory testing of the cement slurry.) (Exhibit 6, E-mail from James Lucari to James Ferguson, Rec. Doc. 8878-1.) Halliburton declined. (Letter from Stephanie Bragg to James Lucari (July 15, 2010), Rec. Doc. 8757-4.) BP then sought the JITs assistance. On August 24, 2010, at a JIT hearing, BPs counsel asked whether the rig stock being held could degrade over time and Jesse Gagliano responded: Yes, they could potentially degrade over time, yes. (Exhibit 7, Gagliano MBI Testimony at 300:10-16.) BP then appealed to the JIT panel: I think the witness has given me the answer that the sooner the test is run, the better, since it has the possibility of degrading . . . over time. (Id. at 301:14-17.) The JIT issued a subpoena to Halliburton for the cement on August 12, 2010. The JIT subpoena requested materials identified in Attachment C to Halliburtons Response to a U.S. Chemical Safety & Hazard Investigation Board subpoena. In Attachment C, Halliburton stated that HESI has secured the following physical samples from the Deepwater Horizon project, but Halliburton failed to identify Deepwater Horizon Sample #63981 (the sample Halliburton recently disclosed). On August 30, 2010, Halliburton received a separate subpoena from the United States Office of the Inspector General, which requested all cement or cement samples or fragments from the Block 252 Lease or the Deepwater Horizon. (Exhibit 8) (emphasis added).
After numerous delays (detailed in BPs March 12, 2013 timeline submission (Rec. Doc. 8878)), Halliburton on November 16, 2010 provided Sample #67314 (approximately 1.5 gallons) to the United States. But Halliburton did not provide the United States with Sample #63981 (approximately 3.75 gallons), even though it also was from the Deepwater Horizon and taken from the same batch of cement blend as Sample #67314. In December 2011, BP brought to the Courts attention that Halliburton had destroyed evidence of various post-incident cement tests. First, in late April or early May 2010, Halliburton manager Ronnie Faul contacted Rickey Morgan in Halliburtons Duncan facility, and asked him to test the Macondo well cement design. (Exhibit 9, Morgan Dep. 15-16.) Roths notes describing this testing contradict Halliburtons litigation position that the cement slurry design used at the Macondo well formed a stable foam: WHEN ATTEMPT WAS MADE TO FOAM THE CEMENT, SLURRY WOULD NOT FOAM. (TREX-007718). Morgan did not document the test and threw out the slurry afterward. Morgan admitted that part of the reason for doing so was because [he was] worried about it being misinterpreted in the litigation. (Exhibit 9, Morgan Dep. 101:9-23.) Second, after hearing of the failed test in Duncan, Faul contacted Tim Quirk at Halliburtons Broussard Lab to request further testing on the Macondo well cement design. (See Tr. 4757:7-4758:9; Exhibit 10, Faul Dep. 263:12-265:6.) Faul instructed Quirk to conduct the tests off the side, which Quirk found a little unusual. See Tr. 4769-70; (Exhibit 10, Faul Dep. 387:1-388:8). Although Quirk made notes of his testing, he threw the notes in the trash after reporting the testing results to Faul over the phone. (See Tr. 4767.) Likewise, Quirk discarded the physical cement test samples after the tests. (Id. at 4769:8-11.) Third, in May 2010, Tommy Roth requested that Mark Savery conduct Displace 3D modeling of the Macondo well cement job. (Tr. 3169:20-22.) After Halliburton ran the Displace 3D modeling, it deleted the results. When BP requested the documents, Halliburtons attorney reported that they were gone. (Rec. Doc. 4799-12). BPs initial sanctions motion requested an adverse inference as well as forensic testing. In January 2012, the Court granted-in-part BPs motion, ordering the forensic testing but not the adverse inference. (See Rec. Doc. 5307.) To the extent the Court denied BPs motion, it relied on 7
the reasons presented by Halliburton. (Id. at 1.) As discussed above, in opposing BPs motion, Halliburton repeatedly stressed that the testing performed by both Morgan and Quirk was on lab stock not on rig stock: [T]he post-incident tests were performed on lab samples, not the actual ingredients contained in the slurry that was tested before the incident or that was pumped in the Macondo well. . . . The lab samples differ in composition from the rig stock that was tested pre-incident and pumped into the well. Therefore, as in Zubulake, the materials BP complains of are not direct evidence of the main claims in this suit, and sanctions are not warranted. (Rec. Doc. 5082 at 5.) Although Halliburton had contended in its December 2011 response that only rig stock matters, it did not disclose that it had failed to produce the largest sample of that rig stock (Sample #63981) to the JIT for testing. Halliburton instead stated exactly the opposite: that it had secured all sample cement ingredients received from the Deepwater Horizon under lock and key. (Rec. Doc. 4961 at 4). Halliburton neither identified nor provided all samples for testing, and instead left critical rig stock from the Deepwater Horizon deteriorating in Halliburtons possession in contravention of the Courts preservation order. (Pretrial Order #1, Setting Initial Conference, Rec. Doc. 2 at 9-11 (PTO No. 1).) B. Events Since BPs First Motion Reaffirm The Significant Prejudice to BP.
Since the Court ruled on BPs sanctions motion in January 2012, events have reaffirmed the significant prejudice to BP and the other parties from Halliburtons destruction and spoliation of evidence. 1. On March 13, 2013, Following Questions By Judge Barbier, Halliburton Announced the Discovery Of A Sample Taken From The Deepwater Horizon. a. Halliburtons Discovery Of The Additional Rig Sample
After Halliburton continued to stress during trial the importance of rig stock, Judge Barbier asked Halliburtons counsel on March 12, 2013: What happened to the sample from the rig, the 8
rig sample itself? (Tr. 3172:16-17.) Halliburtons counsel responded: It is in the possession of the U.S. government. (Tr. 3173:3-4.) One day later, at 10:53 p.m. on March 13, 2013, Halliburton announced by email that it had discovered a rig sample from the Deepwater Horizon (Sample #63981) that was not in the possession of the U.S. government, contrary to what Halliburton had told the Court only a day earlier. Rather, Sample #63981 was still in Halliburtons possession. Halliburton represented, however, that this rig sample was Kodiak well cement. (Exhibit 2.) On March 14, 2013, Judge Barbier questioned Halliburtons counsel about the significance of that in relation to the trial, noting that we know from the prior testimony that there was, quote, leftover cement from the Kodiak well that was ultimately used to create the slurry for the Macondo well. (Tr. 3861:12-21.) Halliburtons counsel responded that our judgment is they have nothing to do with this trial. (Tr. 3862:11-13.) On March 18, 2013, Halliburton disclosed that the so-called Kodiak well cement in fact had the same chemical composition as the cement blend used on the Macondo well. (Exhibit 3.) Halliburton also admitted that the Kodiak well cement had in fact been brought onshore from the Deepwater Horizon when the rig was at the Macondo well. (Id. at 2.) But Halliburtons March 18 disclosure was still inaccurate: Halliburton claimed that the Kodiak well cement was only at the Macondo well for three days (February 20-23, 2010) when, in fact, Sample #63981 was at the Macondo well for over three weeks (January 31, 2010-February 23, 2010). See discussion infra. Halliburtons nearly three-year delay in disclosing Sample #63981 has been profoundly prejudicial to BP and the other parties. As discussed above, Halliburton has contended since 2010 that the Cementing Components deteriorate over time. (Rec. Doc. 494 at 5; see also Exhibit 7, Gagliano MBI Tr. at 300:10-16.) By Halliburtons own assessment, the harm to BP and this 9
proceeding from Halliburtons failure to disclose this sample when it was first requested is irreparable. Further, the amount of newly discovered material is significant. According to Halliburton, Sample #63891 consists of approximately three-quarters of a five gallon bucket, equating to approximately 3.75 gallons. (Exhibit 3 at 1.) By comparison, the total amount of rig sample that Halliburton previously produced for testing was only 1.5 gallons. In other words, over 70% of the rig sample available for post-incident testing was withheld by Halliburton for over three years. The small amount of the previously available sample was significant: because Sample #67314 was a very limited amount of sample, the U.S. Government declined to run certain tests requested by BP. (See, e.g., Rec. Doc. 2830-9.) b. Halliburtons Explanation For Failing To Produce This Critical Evidence Is Inadequate.
On March 14, 2013, BP asked the Court to require Halliburton to respond to questions about the newly identified materials. (Exhibit 11 at 2, Letter from Andrew Langan to J. Shushan (Mar. 14, 2013).) The Court granted BPs request, and Halliburton agreed to respond by Monday, March 18.3 Halliburton did not respond to several of BPs questions. For example, BPs March 14 letter asked: Why were these materials not produced in response to subpoenas and discovery requests or at least identified? (Exhibit 11 at 2.) Halliburtons March 18 disclosure states: It is HESIs understanding that Sample I.D. #63981 was not identified as being responsive to discovery requests or the DOJs subpoena due to it having been labeled as #2 Kodiak Appraisal material as opposed to Macondo material. (Exhibit 3 at 3.)
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(Exhibit 14, March 15, 2013 Working Group Conf. Tr. at 10:21-24 (THE COURT: And in addition, I assume you are, but would you take a look at and answer the specific questions contained in that March 14th letter from BP? MR. GODWIN: Yes, your Honor, we will.).)
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Halliburtons response is a non-answer. As Tommy Roth testified, and is well known, [t]he cement that was used in the [Macondo] production casing was actually transferred from a prior well, the Kodiak well.4 (Tr. 3052:20-21.) In fact, the Court has aptly observed: we know from the prior testimony that there was, quote, leftover cement from the Kodiak well that was ultimately used to create the slurry for the Macondo well. (Tr. 3861:12-15.) Given that Halliburton knew from the outset that cement from the Kodiak well was used for the Macondo well, one of Halliburtons first priorities after April 20, 2010 should have been to ensure the relevant cement from the Kodiak well was made available for testing. Here, Sample #63981 was from the same batch and had the same composition as the cement used on the Macondo well. Furthermore, Sample #63981 had gone with the Deepwater Horizon to the Macondo well and remained there for three weeks before being sent to Halliburtons lab. More importantly, Tim Quirk testified at trial that, following the incident, Halliburton Operations Manager Tony Angelle instructed him to gather materials from the Horizon rig. (Tr. 4756.) Quirk inventoried these materialsincluding Sample #63981and stored them in his office. (Id. at 4757.) After Quirk provided Angelle with a list of everything that [he] had inventoried, (TREX-048002), Angelle told Quirk we just need to secure the Macondo well samples. (Tr. 4805.) So Quirk made a new list with just the Macondo well samples and put those samples into the locker and secured it. Everything else I put back into the storage area in our storage warehouse. (Id.) Only the materials in the locker were provided to the United States in response to its subpoenas; the materials in the storage warehouse (including Sample #63981) were not provided. (Exhibit 12, D-4611 (BP Hand-Drawn Demonstrative Used During Quirk Cross-
The cement batch used on the Kodiak and Macondo wells was created in 2009. (Tr. 3128:15-25).
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Examination).) This occurred at the express direction of Mr. Angelle, who had received the original list. (See TREX-048002.) Halliburton failed to take necessary and appropriate steps to monitor compliance with its preservation duties and production obligations. Quirk was not shown the subpoenas issued to Halliburton. (Tr. 4922-25.) He was not provided clear guidance on what to preserve and testified that he misunderstood Angelles instructions. (Tr. 4801-02.) In fact, Quirk was not even told that the Kodiak cement was used at the Macondo well. (Tr. 4787.) Quirk does not recall seeing any Halliburton attorneys involved in or supervising the gathering or preservation of evidence. (Tr. 4919-22; 4925-26.) Instead, he followed the directions of senior management. When Angelle asked Quirk to secure the Macondo samples, Quirk separated Sample #63981 (the newlydisclosed sample) from the other bucket of identical Kodiak cement used at the Macondo well. When Quirk was told to turn over the contents of the secure locker, he turned over those contents. (Tr. 4919-22, 4925-27.) A photo that Halliburton produced on March 18, 2013 shows that the 5gallon bucket of missing content was clearly labeled From DW Horizon. (Exhibit 4, D-3257 (TREX-023056).) It also had the date of February 23, 2010 on it. And it was used for testing in the Halliburton lab on March 7, 2010. (TREX-005595.) Had Halliburtons lawyers or management undertaken a reasonable search of the lab or consulted appropriately with Quirk, this rig sample would have been located and disclosed to the parties years ago. Whether Halliburtons failure to provide Sample #63981 for testing was intentional or unintentional, Halliburtons conduct in an accident of this magnitude is unconscionable. It is well established that [i]t is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. 12
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004); see also Yelton v. PHI, Inc., 279 F.R.D. 377, 387 (E.D. La. 2011) (Counsel must oversee compliance with the litigation hold, monitoring the partys efforts to retain and produce the relevant documents.) (quoting Zubulake). There is no evidence that Halliburtons counsel took such affirmative steps hereindeed, nobody (counsel or otherwise) even told Quirk that the samples of cement that were from Kodiak were used for Macondo. (Tr. 4787.) c. Halliburton Has Failed To Identify The Individuals Who Knew About Sample #63981.
BPs March 14 letter also requested that a list should be provided of the individuals at HESI who were aware of the existence of these materials. That list should indicate when each of those individuals became aware of the materials. (Exhibit 11 at 2.) Halliburtons March 18 submission disclosed Quirk and Richard DuBois as individuals who were aware of Sample #63981, but did not provide a comprehensive list of individuals with knowledge or state when they became aware. The inadequacy of Halliburtons March 18 disclosure became clear on March 19 when, during his trial testimony, Quirk identified Angelle as having knowledge of Sample #63981. (Tr. 4839-40; see also TREX-048002 (email transmitting list to Angelle).) Angelle was not disclosed in Halliburtons March 18 submission. At present, it remains unknown who else knew about the existence of Sample #63981. d. Halliburtons March 18 Disclosure Contains Numerous Other Deficiencies.
Halliburtons March 18 update was not signed or verified in any way. It contains virtually no citations or documentary support.5 Instead, Halliburtons March 18 update contains
Halliburtons March 18 submission also does not directly answer a separate question posed in BPs March 14 letter: When did HESI notify any representative of the United States of the existence of these materials? (Exhibit 11.) Halliburtons disclosure states only that on March 13, 2013 HESIs
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lawyerly phrases such as it is HESIs understanding that . . . . (Exhibit 3 at 3.) The March 18 update also contains statements that are contradictory or contrary to the evidence: Halliburton asserts that the Deepwater Horizon (carrying Sample #63981) arrived at the Macondo well on February 20, 2010. In fact the Deepwater Horizon and Sample #63981 arrived at the Macondo well on January 31, 2010, meaning that Sample #63981 was at the Macondo well for over three weeks (through February 23, 2010). (See TREX-041072 at 2.) The accurate dates make clear that the sample left the Deepwater Horizon when the Deepwater Horizon was drilling at the Macondo well, as confirmed by the March 7 Weigh-Up Sheet. (TREX-005595 at 1.) The lab documents relating to the tests on newly disclosed Sample #63981 bear the name Macondo. (TREX-005595 at 1). On page 4 of its March 18 update, Halliburton claims the March 2010 tests were marked Macondo because Jesse Gagliano used the Macondo pilot tests lab requests as a template. (Exhibit 3 at 4.) This assertion is unsupported and unverified. On page one of Halliburtons update, the 5-gallon bucket containing the D-AIR blend is listed as being approximately 3/4 full, whereas TREX-048002 (used at trial) lists it as approximately 1/2 remaining. (Exhibit 3 at 1; TREX-048002 at 2.)
Rather than answering the concerns arising out of Halliburtons disclosure of Sample #63981, Halliburtons March 18 submission raises more questions. 2. Tommy Roths Testimony At Trial Confirms That Halliburton Improperly Withheld His Notes Of The Morgan Cement Testing.
As discussed in BPs initial sanctions motion, in late April or early May 2010, Ronnie Faul contacted Rickey Morgan and asked him to prepare a cement slurry with the same composition as the slurry pumped at the Macondo well. (Tr. 3059:6-12.) Roths notes describing this testing state: WHEN ATTEMPT WAS MADE TO FOAM THE CEMENT, SLURRY WOULD NOT FOAM. (TREX-007718 at 1.)
counsel informed Mike Underhill (DOJ) that Sample ID #63981 is located in HESIs Broussard lab. (Exhibit 3 at 3.)
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At trial, Roth testified that he did not know about Morgans tests when he made presentations to Congress and other investigative bodies between May and September 2010. (Tr. 3249:5-3252:1.) Thus, Roth represented to these investigative bodies that a stable foam cement system was designed, tested, delivered and quality assured. (TREX-000982 at 3.) At trial, Roth testified that was surprised in October 2010 when he learned of the discarded tests: Q. When you wrote that [SLURRY WOULD NOT FOAM] down in October 2010, you must have been surprised? A. Yes, sir. Q. You had spent six months going to Congressional investigators, going to the National Academy of Engineering, going to the Presidential Commission, talking to them about this accident, and no one had ever told you this? A. That is correct. Q. This indicated to you that there is a problem with the slurry, didn't it? A. This would not be in keeping with best practice. (Tr. 3253:9-19.) Several Halliburton employees who knew about the Morgan cement testingincluding Ronnie Faul, the person who asked for the off the side testing to be donehelped Roth prepare for his May-September 2010 Congressional testimony and presentations. But Roth testifiedfor the first time at trialthat no one told him about the Morgan tests at any time between May and September 2010. (Tr. 3162:4-13; 3249:5-3252:1.) When Roth learned in October 2010 about this problemarising from the difference between what he had represented to Congress and others and what Halliburtons secret internal tests showedRoth did not keep it to himself. Roth shared the issue with Halliburtons legal team, whom he trusted to take appropriate steps to rectify those errors:
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Q. Now, in October, when you first received the weigh-up sheets, did you request the opportunity to go back and make new presentations to the NAE or Congressional investigators or other bodies to provide that information? A. I did not. Q. Did you feel like you had been set up? A. In October, once I learned that, I was working with our legal team. I had confidence in our legal team to be able to make those declarations. (Tr. 3263:22-3264:5.) Remarkably, at the time of Roths deposition in July 2011, Halliburton still had not produced, and thus BP did not have, Roths October 2010 notes regarding the Morgan test and its failed foam stability result. (TREX-007718.) Thus, when BP filed its initial sanctions motion in December 2011, BP did not know when Roth had provided his notes to Halliburtons attorneys. At trial, Roth testified that he, in fact, prepared his notes in October 2010, and provided them to Halliburtons attorneys at least four or five months before his July 2011 deposition (i.e., at least by March 2011) and possibly in 2010. (Tr. 3280:11-3281:10.) By that point (no later than March 2011), when Roth was working with [Halliburtons] legal team, alarm bells should have been going off at all levels of Halliburton to produce Roths notes. Those alarm bells should have been particularly loud given that Roth was surprised by the information he learned in October 2010 and was working directly with the legal team, who he trusted to notify the investigative bodies. (Tr. 3253:4-11.) Despite all this, Halliburton failed to produce the Roth notes until October 17, 2011, one year after Roth prepared the notes and anywhere from six months to a year after Roth provided them to Halliburtons attorneys. Between March 2011 (the latest possible date that Roth provided the notes to Halliburtons attorneys) and October 17, 2011 (the date the notes were produced), numerous depositions relating to cement testing were taken in this case. These included the March 16
21, 2011 deposition of Tim Quirk, the June 29-30, 2011 deposition of Faul, and the July 25-26, 2011 deposition of Roth, among others. 3. Since BPs Initial Sanctions Motion, The Parties Have Learned That The Displace 3D Modeling Halliburton Deleted Is Unrecoverable.
As the Court is aware, the evidence regarding Halliburtons Displace 3D modeling has changed significantly since BP filed its initial sanctions motion in December 2011. By way of background, Roth testified at trial that he asked Halliburton employee Mark Savery to run Displace 3D cement modeling in May 2010. (Tr. 3168:22-3169:22.) The purpose of the modeling was to be able to determine did the fluids space out and was there sufficient spacer to prevent the displace the base oil and the cement from coming into contact. (Tr. 3168:22-3169:19; see Rec. Doc. 7127 at 2.) After Roth and Savery viewed the results, someone at Halliburton deleted them. (Tr. 3171:13-19.) Halliburton has never disclosed the identity of the person(s) who deleted the Displace 3D modeling results, or who was aware of the deletion. At trial, Roth testified about his conclusions based on the Displace 3D results: So my statement here, spacer volume was sufficient to sweep the entire annulus of volume, as such -- and I probably could have used a more demonstrative to say spacer would be more than sufficient to sweep the channel that was in place in the well. This would be what we saw in the Displace 3D. I make the statement, subsequent testing with 3D confirmed statement that spacer was sufficient. (Tr. 3176:5-25.) Because Halliburton deleted the results of the modeling, no one will ever know whether the results support or disprove Halliburtons litigation positions. Nor can BP confirm or challenge Roths testimony by reviewing the modeling. When BP filed its initial sanctions motion, the parties hoped that forensic testing would recover the remnants of the Displace 3D modeling on
17
Saverys computer. But the forensic testing ordered by the Court failed to locate any traces of the 3D modeling; all of the evidence had been deleted.6 (Rec. Doc. 7127 at 2.) II. ARGUMENT A. Sanctions Are Warranted Based On Halliburtons Destruction And Spoliation of Evidence.
A partys duty to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. In re Enron Corp. Sec. Derivatives & ERISA Litig., 762 F. Supp. 2d 942, 963 (S.D. Tex. 2010) (internal quotations and citations omitted). Halliburton has long known that evidence relevant to determining the cause of the incidentand in particular to assessing whether failures of Halliburtons cement contributed to the Deepwater Horizon explosionwould be relevant to issues in pending litigation. Halliburton also knew quite well that such evidence included samples from the Kodiak well. (See Tr. 3191; Exhibit 13, Quirk Dep. 549:23-550:4.) And no later than April 30, 2010, Halliburton claimed the cement slurry design was consistent with that utilized in other similar applications. (TREX-002013.) Against this backdrop, the Courts remedial authority derives from two sources. As an initial matter, Halliburtons conduct violates Pretrial Order No. 1, which directs all parties to take reasonable steps to preserve all documents, data and tangible things containing information potentially relevant to the subject matter of this litigation, and warns that[f]ailure to comply
In its initial sanctions order, the Court also instructed the parties to meet and confer to determine whether Halliburtons modeling could be replicated. (Rec. Doc. 5307 at 2-3). That effort was also unsuccessful. After it became clear that Halliburton was attempting to turn its sanctionable conductdestruction of evidenceinto a tactical advantage by generating self-serving evidence after the close of discovery, BP sought further relief from the Court: (a) an order deeming the evidence of the attempted recreation of the missing modeling inadmissible at trial, and (b) an order requiring Halliburton to bear 100% of the costs of the forensic examination and attempted replication. (Rec. Doc. 7127 at 1-2). On August 16, 2012, the Court granted BPs requested relief. (Rec. Doc. 7127 at 2).
18
[could] lead to dismissal of claims, striking of defenses, imposition of adverse inferences or other dire consequences. (PTO No. 1 at 14 (emphasis added).) Where, as here, a party has destroyed evidence in violation of a specific court order, the court may impose sanctions under Rule 37(b).7 See FED. R. CIV. P. 37(b)(2)(A). Such civil sanctions may include (among others) barring the disobedient party from introducing evidence or directing that certain facts shall be taken as established for purposes of the action. FED. R. CIV. P. 37(b)(2)(A)(i). Such sanctions may also include striking the disobedient partys pleadings, dismissing the action, and rendering a default judgment against the disobedient party. FED. R. CIV. P. 37(b)(2)(A)(i)-(vi). Rule 37(b)(2) contains two standardsone general and one specificthat limit a district courts discretion. First, any sanction must be just; second, the sanction must be specifically related to the particular claim which was at issue in the order to provide discovery. See Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982). In addition, discovery sanctions may be based on the Courts inherent power to control the judicial process and prevent its abuse. See generally Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (inherent power to sanction not displaced by federal statute or rules of procedure); Yelton v. PHI, Inc., 279 F.R.D. 377 (E.D. La. 2011). In order for this Court to impose sanctions under its inherent power, however, it must find bad faithwhich is not required under Rule 37. Yelton v. PHI, Inc., 278 F.R.D. 377, 387 (E.D. La. 2011). In Yelton, for example, this Court concluded that the evidence submitted leans toward a finding of a significant degree of culpability. Id. at 391. Like Halliburton, the defendant in Yelton was far from forthcoming with respect to post-litigation tests:
The relief that BP requests is also authorized under Rule 37(c)(1)(C), which expressly permits the Court to impose any sanctions available under Rule 37(b)(2)(A)(i)-(vi).
19
The simulation results also raise[] the specter that Sikorsky did not want the findings, or the data used, to be readily available. Dr. Kims deposition testimony underscores the point, as he testified that, on more than one instance, Mr. Potts requested that he delete reference to the S92 data used in his bird strike simulation analysis, and that he complied. Id. Yelton was affirmed in pertinent part by this Court. See Yelton v. PHI, Inc. 284 F.R.D. 374 (E.D. La. 2012) (Barbier, J.). The sanctions requested below are authorized under both Rule 37 and the Courts inherent power. Halliburton has repeatedly violated PTO 1, and, as required by Rule 37, the sanctions are just and related to the particular claim that was the subject of the discovery violations. The sanctions also are authorized under the Courts inherent power. See, e.g., Yelton v. PHI, Inc., 279 F.R.D. 377, 392-94 (E.D. La. 2011). B. The Court Should Order Appropriate Remedies For Halliburtons Conduct.
According to Halliburton, rig samplesnot lab stockare what matter. (Rec. Doc. 4961 at 12, 18). But, based on Halliburtons failure to disclose Sample #63981 for nearly three years and Halliburtons own position concerning the deterioration of cement over time, most of the available rig sample was not produced for testing before trial. Through its conduct, Halliburton is solely responsible for the deterioration of what it claims is the most important piece of evidence concerning the role of the Halliburton cement slurry design in the events of April 20, 2010. The prejudice to BP and the other parties is beyond dispute. Halliburton engaged in a pattern of destruction, spoliation, and withholding of critical evidence, including the following illustrative examples: (1) Halliburton withheld the rig sample (Sample #63981) from April 2010 to March 2013, during which time it deteriorated according to Halliburton; (2) Halliburton destroyed the Morgan testing sample that showed a failure to foam in April/May 2010; 20
(3) Halliburton withheld the Roth notes regarding the failure of the Morgan testing from October 2010 through October 2011, after Roths deposition; (4) Halliburton destroyed the testing sample used in connection with the Quirk tests in April/May 2010; (5) Halliburton destroyed the notes taken by Quirk documenting the results of his testing in April/May 2010; and (6) Halliburton deleted the Displace 3D modeling from Saverys computer, which was irretrievable notwithstanding the forensic testing ordered by the Court. Viewed cumulatively, Halliburtons bad-faith conduct significantly limited the parties ability to present evidence of post-incident cement analysis. In light of Halliburtons destruction and spoliation of critical evidence, BP requests the sanctions set forth below. First, as permitted by Rule 37(b)(2)(A)(i) and the Courts inherent authority, the Court should make an adverse factual finding that Halliburtons final cement design was unstable and caused hydrocarbons to enter the wellbore. No one will ever know whether the undisclosed and missing evidence would have further supported a conclusion that Halliburtons cement caused the April 20, 2010 blowout. But, given Halliburtons conduct here, it should not be permitted to argue that the missing evidence would have been helpful to its case. To the contrary, the law is clear in these circumstances that the presumptions and inferences go against the spoliator. As the Court explained in Yelton: Unfortunately, it is impossible to know the extent of the prejudice suffered by PHI as a result of the loss of Dr. Kims data files, because they have been permanently lost due to Sikorskys conduct. . . . Dr. Kims data files may have been helpful to PHI, or of no value to any party. As a result of Sikorskys misconduct and intentional destruction of the data files, however, the Court will never know. However, given the facts and circumstances presented here, the Court finds that PHI has carried its limited burden of demonstrating that the lost documents would have been relevant . . . . [B]ased on the record in this case, the Court makes the preliminary findings necessary for the spoliation evidence to be submitted, and an adverse inference instruction given to the jury. 21
279 F.R.D. at 392-94. Accordingly, the Court should make an adverse factual finding that Halliburtons final cement design was unstable and caused hydrocarbons to enter the wellbore. This sanction is merited both by the individual instances of Halliburtons misconduct cited above, and by the cumulative effect of that misconduct. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 112-13 (2d Cir. 2002); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 436 (S.D.N.Y. 2004). Second, in light of the recent information that the majority of the available rig sample has been spoliated (according to Halliburtons documents and witnesses), the other cement testing data in the case becomes far more relevant and critical. This includes the lab testing by Morgan and Quirk. Accordingly, the Court should find that the post-incident tests conducted by Rickey Morgan and Tim Quirk in April/May 2010the results of which were destroyed by Halliburton establish that the cement used on the Macondo well on April 20, 2010 was not stable. Third, and also to fill the cement testing evidentiary gap created by Halliburtons conduct, the Court should permit the deposition opinion testimony of the Chevron and OT&C witnesses (Gardner and Garrison) regarding their post-incident testing.8 Gardner (Chevron) performed postincident cement testing using lab stock from Halliburton for the Presidential Commission, while Garrison (OT&C) performed post-incident testing using lab stock from Halliburton and rig stock for the JIT. The testing-related deposition opinion testimony of Gardner and Garrison is relevant and should be allowed at trial.
BP requests this relief to the extent that Halliburtons use of Chevron and OT&C testimony has not already opened the door to such evidence over the Courts ruling in Rec. Doc. 5810. (See Tr. 2542-43 (the Court overruled Halliburtons objection to use of OT&C testimony)).
22
III.
CONCLUSION The preservation of evidence is crucial to a fair and just proceeding, and accordingly a court
may impose severe sanctions against a party that engages in spoliation. Halliburton has destroyed and failed to produce the very cement samples and documentary evidence at the heart of the parties claims in this case. [T]he Court will never know what this evidence would have showed had it been preserved. Yelton, 279 F.R.D. at 392-94. The prejudice in terms of BPs ability to defend itself is severe, and appropriate sanctions are warranted. For the foregoing reasons, BP respectfully requests that the Court enter an order: (1) finding that Halliburtons final cement design was unstable and caused hydrocarbons to enter the wellbore; (2) finding that the off the side tests conducted by Rickey Morgan and Tim Quirk in April/May 2010 establish that the cement used on the Macondo well on April 20, 2010 was not stable; and (3) allowing opinion testimony by deposition designations of Chevron and Oilfield Testing & Consulting witnesses (Gardner and Garrison) regarding their post-incident testing.
23
Dated: March 21, 2013
Respectfully submitted, /s/ Don K. Haycraft Don K. Haycraft (Bar #14361) R. Keith Jarrett (Bar #16984) LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139-5099 Telephone: (504) 581-7979 Facsimile: (504) 556-4108 J. Andrew Langan, P.C. Matthew T. Regan, P.C. Hariklia Karis, P.C. KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 312-862-2000 (Tel) 312-862-2200 (Fax) Robert C. Mike Brock COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004-2401 202-662-5985 Attorneys for Defendants BP Exploration & Production Inc. and BP America Production Company
24
CERTIFICATE OF SERVICE I hereby certify that the above and foregoing pleading 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, on this 21st day of March, 2013.
/s/ Don K. Haycraft
EXHIBIT 1
Case 2:10-md-02179-CJB-SS 8977-2 Representative Filed 03/21/13 Page 2 of 2 Non-Rig SamplesDocument Are Not of Rig Cement Testing
OTC; Performed Cement Testing for JIT
Greg Garrison
Ronald Crook
BP Cement Expert
Chevron; Performed Cement Testing for National Commission
Craig Gardner
U.S. Dept. of Justice Cement Expert
Glen Benge
Daryl Kellingray
BP Cementing Sector Specialist / SETA
Source: See pages 2-6.
D-8008.1
EXHIBIT 2
From: Martinez, Jenny [mailto:Jenny.Martinez@GodwinLewis.com] Sent: Wednesday, March 13, 2013 10:53 PM To: 'Sally Shushan'; Ben_Allums@laed.uscourts.gov; 'Horizon Defense Liaison Counsel (Liaison2179@liskow.com)'; 'James Roy'; 'Steve Herman (SHERMAN@hhklawfirm.com)'; *Mike.Underhill@usdoj.gov; 'luther.strange@ago.state.al.us'; *CMaze@ago.state.al.us; 'Trey Phillips' Cc: Godwin, Donald; Bowman Jr., Bruce Subject: Kodiak Well Cement
Sent of Behalf of Donald E. Godwin: Your Honor: HESI would like to bring a recent development to the Court's immediate attention. During its cross-examination of Tim Probert on March 11, 2013, the PSC referenced TREX 48002 and TREX 3110. TREX 48002, which is entitled "Materials currently in lab for BP, Transocean Horizon Rig," lists certain cement materials associated with the Kodiak well and the Macondo well being held in HESI's lab. TREX 3110 is a similar document entitled "Materials currently Locked in Cabinet for BP, Transocean Horizon Rig," however, that document identifies only materials associated with the Macondo well (not the Kodiak well). Neither document is dated, and both are attached hereto for your reference. After the PSC questioned Mr. Probert about TREX 48002 and TREX 3110, counsel for HESI, who was unaware that any materials associated with the Kodiak well were in HESI's possession, consulted with HESI's lab personnel and discovered that the materials associated with the Kodiak well that are referenced in TREX 48002 are still being held at HESI's lab. The lab was immediately instructed to photograph the materials and to continue to hold them. HESI is currently investigating whether the materials are in fact associated with the Kodiak well, and if so, whether such materials are responsive to any previously issued subpoenas. We have been informed that no post incident testing utilized any materials identified in TREX 48002. Counsel for HESI has informed the United States of the foregoing, and will continue to cooperate with the United States regarding any previously issued subpoenas. Respectfully, Donald E. Godwin Jenny Martinez, Shareholder In Dallas Office Jenny.Martinez@GodwinLewis.com
Direct: 214.939.4620 Fax: 214.527.3119 www.GodwinLewis.com Toll Free: 800-662-8393
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This electronic transmission (and/or the documents accompanying it) may contain confidential information belonging to the sender that is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510 and 2521 and may be legally privileged. This message (and any associated files) is intended only for the use of the individual or entity to which it is addressed and may contain information that is confidential, subject to copyright or constitutes a trade secret. If you are not the intended recipient you are hereby notified that any dissemination, copying or distribution of this message, or files associated with this message, is strictly prohibited. If you have received this communication in error, please notify Godwin Lewis PC immediately by telephone (800.662.8393) and destroy the original message. Messages sent to and from us may be monitored.
TREX- 03110
EXHIBIT 3
Case 2:10-md-02179-CJB-SS Document 8977-4 Filed 03/21/13 Page 2 of 5 UPDATECONCERNINGDRYBLENDINHESISBROUSSARD/LAFAYETTELAB DateofUpdate:March18,2013 NatureofUpdate:OnMarch14,2013,HESIsLabManager,RichardDubois, reviewedphysicalmaterialsandstorageconditionsatHESI'sBroussard/Lafayette lab,atwhichtimephotographsweretaken;hereviewedselectVikingprojectsto trackprojectnumbersanduseofblendsamplesandretarderlots;andreviewedthe Vikingdatabaseforthereasonssetforthherein. Thefollowingisadescriptionofthecontentscurrentlylocatedinalockedand securecabinetatHESI'sBroussard/LafayetteLab: 15gal.bucketcontainingdryblendcement.Thebucketisapproximately fullandlabeledwithmarkerasbeingfromDWHorizonandthe#2Kodiak Appraisalwell.Alsowrittenonthebucketinmarkeris"CementSample12 2709."ApaperlabelaffixedtothebucketidentifiesitasSampleI.D.# 63981,witha"Date"of"23022010."Thelabelalsoidentifiesthefollowing blendinformation: Material/LotNo Conc. LafargeClassH LOCATION DAir3000 0.25%BWOC BLENDED EZFLO 0.07%BWOC KCL(PotassiumChloride) 1.88lb/sk Salt BLENDED SA541 0.2%BWOC BLENDED SSA1(SilicaFlour) PB 20.0%BWOC BLENDED SSA2(100Mesh) PB 15.0%BWOC BLENDED Ontheoutsideofthebucket,thereisanotationforProject#66689. 31gal.bucketscontainingSCR100L.Therespectivebucketsarelabeledas follows:SampleI.D.#61160fromLot#H8436264;SampleI.D.#61161from Lot#H8432117;andSampleI.D.#61162fromLot#H8434781. 32gal.bucketscontainingmudlabeledasbeingfromKaskida.Allthree bucketsbearSampleI.D.#65501. 1
2117230v224010/0002MEMO
Case 2:10-md-02179-CJB-SS Document 8977-4 Filed 03/21/13 Page 3 of 5 TimelineforSampleID#63981: DATE December27,2009
DESCRIPTION/EVENT Dryblend,labeledwithSampleID# 63981,issampledontherigandplaced in5galbucketwithidentifying markings(hereinafter,"SampleID# 63981") Dryblend,labeledwithSampleID# 59335,isloggedintolabandusedfor "pilottesting"onproductioncasing cementjobatMacondo DeepwaterHorizonarrivesatMacondo well SampleID#63981,whichissentin fromrig,isloggedintolab. WeighUpsheetforRequestID68156, part1,isprintedrequestingtestingon "Foamer760"surfactantusingblend withSampleID#59335(samesample usedforpilottesting). NotationonWeighUpsheetcrossesout SampleID#59335,andthefollowingis writtenbyRichardDubois:"Sample markedoutofstock."Handwritten notationidentifiesblendsampletobe usedfor"Foamer760"testsasSample ID#63981. WeighUpsheetsforRequestID68156, parts1and2,areprintedforFoamer 760tests.Testsidentifiedonsheets indicatedthatSampleID#63981isthe blendsampleusedforthesetests. Newblendsamplefromrig(SampleID# 67314)isloggedintolabandusedfor operationaltestingonproductioncasing cementjobatMacondo DeepwaterHorizonIncident AllmaterialsinlabrelatedtoDeepwater HorizonwerecollectedinTimQuirk's officeandorganizedbywell(Macondo, Kodia,Kaskida,etc.). SampleID#63981,bearinglabel"#2 2
December29,2009
February20,2010 February23,2010 March5,2010(onorabout)
March7,2010(onorabout)
April5,2010
April20,2010 ImmediatelyafterApril20,2010
ImmediatelyafterApril20,2010to
2117230v224010/0002MEMO
Case 2:10-md-02179-CJB-SS Document 8977-4 Filed 03/21/13 Page 4 of 5 March12,2013 March11,2013 March12,2013 KodiakAppraisal,"isstoredinlaband placedontopshelfinadjacent warehouse. SampleID#63981isidentifiedina documentduringTimProbert's testimony. RichardDuboisisinstructedtosearchto ascertainifSampleID#63981is currentlyinHESI'slab.Mr.Dubois confirmsthathefounditstoredin warehouse.Mr.Duboisisinstructedto placeSampleID#63981andanyother materialsamplesfromDeepwater Horizon,regardlessofwelllabel,into lockedandsecurestoragecabinet.He promptlydoesso. HESI'scounselinformedMikeUnderhill (DOJ)thatSampleID#63981islocated inHESI'sBroussardlab.
March13,2013
SummaryofotherinformationregardingSampleID#63981,labeledas"#2 KodiakAppraisal": AccordingtoRichardDubois,upuntilMarch12,2013,whenitwaslockedup attheBroussardlab,SampleI.D.#63981wasstoredonthetopshelfofthe climatecontrolledwarehouseconnectedandimmediatelyadjacenttothe lab.AccordingtoRichardDubois,itwasplacedtherebyhimselfandTim Quirk.Mr.Duboisisveryconfidentthatitwasneverusedforanytesting aftertheApril20,2010,incident.ItisHESI'sunderstandingthatTimQuirk alsowouldtestify,ifasked,thatheisunawareofSampleI.D.#63981having everbeenusedforanytestingaftertheApril20,2010,incident. ItisHESI'sunderstandingthatSampleI.D.#63981wasnotidentifiedas beingresponsivetodiscoveryrequestsortheDOJ'ssubpoenaduetoit havingbeenlabeledas"#2KodiakAppraisal"materialasopposedto "Macondo"material. AfteradocumentreferencetoSampleID#63981cameupinTimProbert's testimonyonMarch11,2013,RichardDuboiswascontactedandinstructed tosearchfortheblendsample.WhenMr.Duboisconfirmedthathehad locatedtheblendsample,hewasinstructedtoimmediatelylockitup,and anyothermaterialsamplesidentifiedashavingcomefromtheDeepwater Horizon(regardlessofwell),inalockedandsecurecabinetinthelab.Mr. DuboislockedupthematerialidentifiedaboveinasecurecabinetonMarch 12,2013. 3
2117230v224010/0002MEMO
Case 2:10-md-02179-CJB-SS Document 8977-4 Filed 03/21/13 Page 5 of 5 VikingindicatesthatSampleID#63981wasonlyusedfortestingRequest I.D.68156,parts1and2,whicharetheMarchteststhat,perhisdeposition, JesseGaglianorequestedtobeconductedatthebehestofDarylKellingrayof BP.Perhisdeposition,JesserequestedthetestsusingtheMacondopilot testsasatemplatebutswitchedouttheZoneSealant2000foradifferent surfactantcalledFoamer760.PerJessesdeposition,Foamer760was nevercontemplatedforuseatMacondoand,despitethelabdocuments bearingthenameMacondo(becauseheusedtheMacondopilottestslab requestsasatemplate)thistestwasforBPinformationalpurposesonlyand hadnothingtodowithtestingFoamer760foractualuseatMacondo.(See Dep.ofJesseGagliano(Feb.7,2010),134:19138:24)) ThenotationofProjectNo.66689onthebucketcontainingSampleID# 63981appearstobeanerror.VikingidentifiesProject66689asbeing testingonapotential18shoesqueezejob.However,theblendsampleused inthattestisidentifiedinVikingasbeingSampleI.D.#59335(theblend sampleusedforpilottesting),notSampleI.D.#63981.Areviewofthe VikingdatabasealsoconfirmedthatSampleI.D.#63981wasnotusedinthe labforanytestingotherthanonthetwoslurriespreparedfor"Foamer760" testing.
ReviewofSCR100LLotNumbers. TheLot#sforSCR100Larenotspecifictoarig,wellorevencustomer.Lot numbersareusedtoidentifylargebulkordersofSCR100L,andsmaller volumesofthelargerbulkordercanbedeliveredtodifferentrigsanddifferent labs.ALotofSCR100Lcouldbeusedforapproximatelyoneyearinthe Broussardlab,dependingonthevolumeoftheLot.Forexample,theFebruary pilottestsusedSCR100LfromLot#H8432117(2117).TheApriloperational testsusedSCR100LfromLot#H8436264(6264).Itwouldbecommonand expectedtofindvariousothertests,evenforothercustomers,identifyingthe useofSCR100LfromLot#6264.
2117230v224010/0002MEMO
EXHIBIT 4
EXHIBIT 5
Case 2:10-md-02179-CJB-SS Document 8977-6 Filed 03/21/13 Page 2 of 3 Maher, Erin

From: Sent: To: Lopez, S. Kena [KLopez@GodwinRonquillo.com] Monday, October 17, 2011 11:41 AM airpino@irpinolaw.com; Pixton, Allan; RTC@CBCBB.com; bboudreaux@joneswalker.com; Bowman, Bruce; BToryani@Dartlaw.com; CMaze@ago.state.al.us; deepwater.horizon@usdoj.gov; Dsc2179@liskow.com; DefenseLiaison2179@liskow.com; Maher, Erin; dgodwin@godwinronquillo.com; Hartley, Jr., Floyd; Hill, Gavin; jimr@wrightroy.com; lstrange@ago.state.al.us; jmartinez@GodwinRonquillo.com; Mike.Underhill@usdoj.gov; PMills@ago.state.al.us; Sarah.Himmelhoch@usdoj.gov; York, R. Alan; shaun@gergerclarke.com; sherman@hhkc.com; sterbcow@lksalaw.com; Nelson, Thomas; rwarren@jrwlegal.com Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico on April 20, 2010, MDL 2179
Subject:
Counsel, Halliburton Energy Services, Inc. ("HESI") has uploaded to its FTP site Volume 63, which includes documents from the custodial files of James Bement, Thomas Roth and Sarah Sanders . The Bates range for this production is HAL_1236476 HAL_1244101. We have previously provided login credentials and instructions to access HESI's FTP site. If you have problems accessing HESI's FTP production, please contact Michelle Macleod at MMacleod@GodwinRonquillo.com or Alison Battiste at ABattiste@GodwinRonquillo.com. HESI produces these documents subject to the terms of applicable pre-trial orders, including Pre-Trial Orders Nos. 13, 14, and 16. This document production is made subject to all general and specific objections as contained in Defendant Halliburton Energy Services, Inc.'s responses and objections to all discovery requests to date. Regards, Kena Lopez
S. Kena Lopez 1201 Elm Street, Suite 1700 Dallas, Texas 75270-2041 214.939.4435 Direct (800.662.8393 Toll Free) 214.527.3143 Fax KLopez@GodwinRonquillo.com GodwinRonquillo.com This electronic transmission (and/or the documents accompanying it) may contain confidential information belonging to the sender that is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510 and 2521 and may be legally privileged. This message (and any associated files) is intended only for the use of the individual or entity to which it is addressed and may contain information that is confidential, subject to copyright or constitutes a trade secret. If you are not the intended recipient you are hereby notified that any dissemination, copying or distribution of this message, or files associated with this message, is strictly prohibited. If you have received this communication in error, please notify Godwin Ronquillo PC immediately by telephone (800.662.8393) and destroy the original message. Messages sent to and from us may be monitored.
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Case 2:10-md-02179-CJB-SS Document 8977-6 Filed 03/21/13 Page 3 of 3 IRS Circular 230 Required Notice--IRS regulations require that we inform you as follows: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended to be used and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter[s].
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Case 2:10-md-02179-CJB-SS Document 8878-3 8977-8 Filed 03/12/13 03/21/13 Page 1 2 of 4

USCG HEARING DAY 2 8/24/2010
1 1 2 3 4 5 6 7 8 9
******************************************************** ******************************************************** TUESDAY, AUGUST 24, 2010 USCG/BOEM MARINE BOARD OF INVESTIGATION INTO THE MARINE CASUALTY, EXPLOSION, FIRE, POLLUTION, AND SINKING OF MOBILE OFFSHORE DRILLING UNIT DEEPWATER HORIZON, WITH LOSS OF LIFE IN THE GULF OF MEXICO APRIL 21-22, 2010
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The transcript of the Joint United States Coast Guard, The Bureau of Ocean Energy Management, Regulation and Enforcement Investigation of the above-entitled cause, before Toyloria L. Hunter, Certified Shorthand Reporter and Registered Professional Reporter, Notary Public in and for the State of Texas, reported at the Hilton Hobby Airport Hotel, 8181 Airport Boulevard, Houston, Texas 77061.
U.S. LEGAL SUPPORT - HOUSTON 713-653-7100

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yes. Q. So if the board, for example, or the still. Q. From the cement slurry actually used in
Macondo 252 well? A. Q. A. Q. state? A. Q. Yes, we isolated all the samples. Do you know, by the way, whether or not the To my knowledge, there is some left, yes. And it's currently in your possession? It's at the Haliburton lab. Okay. And you maintained it in its original
slurry design samples that you have, whether or not they'll degrade over time? A. Q. A. The ones in the lab? Yes. Yes, they could potentially degrade over time,
government wanted to test the slurry design to determine whether it was as marketed and advertised to BP, they'd need to test that sooner rather than later so that it doesn't degrade on it, right? MR. GODWIN: Well, that would have to be And
done pursuant to the MDO court in New Orleans.
we've been working with several parties here regarding that, rather than having several different tests to

301 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
fund. JUDGE ANDERSEN: Who -- whoever wanted
to -- I'm sure the Court there is interested on the off chance that that would become a subject of litigation. You know, obviously what counsel is saying is that parties have a duty to preserve. And if you want to
present to some other forum, or if the gentlemen here on this board decide they want to get tests, we'll let you know. MR. GODWIN: There's an order in place,
Your Honor, regarding preservation of evidence, and Haliburton has and intends to fully comply. BY MR. GODFREY: Q. My question was designed to determine -- and I
think the witness has given me the answer that the sooner the test is run, the better, since it has the possibility of degrading the sample over time. MR. GODWIN: That is -- I'm going to
object there, Your Honor, whether or not this witness would know that. He may not have the qualifications.
There's been no evidence that he's a chemist or would be someone who would do the testing. know. He may not -- he may
He may not know, but the way if question is
phrased, it's questionable. JUDGE ANDERSEN: Okay. If board members
EXHIBIT 8
Case Filed 10/07/10 03/21/13 Page Page 9 2 of of 9 2 Case 2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document 8977-9 494-3 Filed
EXHIBIT 9
1
1
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
2 3
IN RE:
OIL SPILL
) ) ) ) ) )
MDL NO. 2179
BY THE OIL RIG

4
"DEEPWATER HORIZON" IN THE GULF OF MEXICO, ON
SECTION "J"
APRIL 20, 2010
JUDGE BARBIER MAG. JUDGE SHUSHAN
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Deposition of RICKEY LYNN MORGAN, taken at Pan-American Building, 601 Poydras Street, 11th Floor, New Orleans, Louisiana, 70130, on the 17th day of October, 2011.
PURSUANT TO CONFIDENTIALITY ORDER
15
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08:41
aware that Halliburton was on that project? A. I think there was an e-mail came
out several days later that said Halliburton was on the rig and no one was hurt. Q. A. Q. No one from Halliburton? Yeah. So when did you become involved
5 6 7 8 9
with the project in any capacity? A. Q. A. When Ronnie Faul called me. Tell us who Ronnie Faul is. He -- as far as I know, he's
08:41 10
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08:42 15
the -- kind of the supervisor down on the Gulf Coast over the technology engineers? Q. A. Is he an engineer? I have no idea what his
16 17 18 19
08:42 20
education is. Q. In the -- this is now 2010 when
he's contacting you, right? A. Q. Yes, sir. How much after the April 20th
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08:42 25
explosion did he call you? A. Q. He called me twice, I think. And roughly how many weeks after
or days after? A. Roughly two weeks, two to four
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08:42
weeks. Q. So towards the end of April, or
beginning of May? A. Q. A. Q. time? A. I was principal technologist in Yes, sir. And that would be 2010? Yes, sir. Where were you working at that
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08:42 10
the cementing, materials, and maintenance group. Q. A. Q. A. Q. do? A. He asked me to take a look at And the location? Duncan. Oklahoma? Yes, sir. What did Ronnie Faul want you to
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08:42 15
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08:43 20
the Macondo slurry. Q. A. What aspect of it? He didn't say. He said, just
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08:43 25
take a look at it. Q. A. Tell us what slurry means. Slurry is the wetted cement Cemented mixed with the
mixed together.
17
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08:43
water. Q. Now, I'm going to ask you to go
back in time roughly to the time that Mr. Faul -- did he call you, or did he send you a text message? A. Q. A. Q. Called. Called.
5 6 7 8 9
Or an e-mail? Called. Okay. In the old days we could Now we have
08:43 10
just say that he called you.
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08:43 15
five different ways he could contact you. A. Q. Exactly. And what -- to the best of your
knowledge, tell me everything you can remember about that first conversation. A. He just asked me to take a look
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08:44 20
at the slurry and give him my opinion of it. Q. Did you ask him any questions as
to what he meant or what the scope was? A. Q. No. So he -- he said, Mr. Morgan, I
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08:44 25
want you to look at the slurry used on the Macondo well 252? A. Q. (Nodding head.) "Yes"?
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08:44
A. Q. A. Q. A.
Yes. And then you said? Okay. And what did -- what did you do? I got the slurry sheet, and I
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went and mixed the slurry up. Q. sheet? A. Q. A. I got it from Brian Wall. Who is he? He is a princ- -- I don't know He's a technician Where did you find the slurry
08:44 10
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08:44 15
what his exact title is.
that works there at Halliburton in Duncan. Q. A. Q. And what's on the slurry sheet? The recipe for the slurry. So the exact -- is it the exact
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08:44 20
slurry recipe that was used for the Macondo well 252? A. Q. sheet? A. That's what was on Viking, where I have no idea if it was. Why did you pick that slurry
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08:45 25
they keep track of what the slurry designs are. Q. Viking is a system where you
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10:31
work. not.
I don't know if it is in the field or
Q.
But in your research did you
find that people requested it frequently? A. of it. Q. Okay. And, now, the second Well, not in the research part
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slurry that you foamed -- oh, well, first, let me confirm, you didn't -- did you take down any notes about the slurry? A. Q. A. Q. the sample? A. Q. Yes, ma'am. And you mentioned that the No, ma'am. You didn't take any pictures? No, ma'am. And then you said you dumped out
10:31 10
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10:31 20
reason that you didn't document the test and you threw out the sample was because you were worried about it being misinterpreted in the litigation? A. yes, ma'am. Q. Now, for the second test you Yes, that's part of the reason
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10:31 25
mentioned that the -- before you ran this
EXHIBIT 10
1
1 2 3
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: OIL SPILL by the OIL RIG ) ) ) ) ) ) JUDGE BARBIER SECTION "J" MDL NO. 2179
"DEEPWATER HORIZON" in the GULF OF MEXICO, ON
APRIL 20, 2010
) )
MAG. JUDGE SHUSHAN
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
VOLUME 1 OF 2
Deposition of RONALD RAY FAUL, taken at Pan American Life Center, 601 Poydras Street, Ponchartrain Room, New Orleans, Louisiana, on the 29th of June, 2011.
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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.
Uh-huh. -- and repeat the test that was on
the final BP Macondo production liner, production casing report, repeat the stability test specifically. Q. Yeah. Yeah. Now -- now, you did
that, as I understand it, because somebody in Duncan had told you that they had attempted a duplication of the test, and they found that the cement settled, right? A. Q. Yes. All right. So when you called
Mr. Quirk, it was probably within a week or two after the blowout had started, right? A. It would have been in May
sometime. Q. A. Q. In May? Yes. The blowout's April 20, so in
early May you were calling and saying -A. Q. A. Q. Probably --- let's -Probably a little later in May. Now --
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A. Q.
After the 15th. Okay. You had from Duncan a
report that the cement was settling, and -- I got that right, correct, you -that they -- they told you the cement samples that they tested that they thought were samples similar to the Macondo job, they -- they were settling, right? A. Yes. He called me and said that
the sample he mixed up was showing some signs of settling. Q. Had you guys sent up to Duncan
some of the samples that you had on hand at that time so that they could perform the tests? A. Q. We had sent up lab stock. That'd be some of the same samples
you and I just went over in tab 60, right? A. No. Tab 60, I believe, was
samples from the Macondo well specific to the Macondo well, and those were isolated. So lab stock would have been samples in the lab that -- that had -- we -- we didn't touch the -- those were under lock and key.
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Q.
Okay.
Now, when you say lab
stock, though, for Duncan to test the cement blends similar to what was used in the Macondo production casing job, you know, the 7-inch job -A. Q. Yes. -- they would have needed to have
blended into the cement essentially the same materials that were blended into the cement for the Macondo 7-inch production job? A. We could have sent them samples of
Lafarge cement and samples of materials from the lot numbers that we had in the lab, but we didn't send them any of the material from the -- from the rig -Q. A. Q. Okay. -- Macondo. Okay. All right. So you sent
them the cement -- the Lafarge cement. Did -A. Q. Yeah. -- you take that out of the bin
down in Port Fourchon? A. I don't know where they got it.
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Q.
And I know you were asked earlier
today whether or not you told Mr. Quirk to destroy his -- his notes or any results that he had gotten. You testified that
you didn't instruct him to do that at all. A. I don't remember instructing him
to destroy any -- any work that he had done. I did ask him not to put it in the
Viking system because it was not associated with a customer need. internal Halliburton information. Q. Okay. So you told him not to put It was
it into the Viking system -A. Q. That's correct. -- which is an -- that's an
electronic sort of process, isn't it? A. Q. Yes. Did you also instruct him not to
generate a report in connection with the testing he was conducting? A. He gave me all the information
that I wanted when -- over the phone call. I didn't tell him to -- to generate a report. Q. Okay. But that -- I appreciate
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that.
But my question is, did you
specifically tell Mr. Quirk not to generate a report in connection with the foam stability test he was running for you after the blowout? A. He would have had to put it in
Viking to do that, and I asked him not to put it in Viking. Q. And I know today you've talked
about -- and just so I understand, you've talked quite a bit about information gathering, that you -- you were -- you were conducting these tests after the fact so you could gather facts and information, and you used some of that information to brief and educate some of the -- the other people at Halliburton about what had happened on Macondo; is that right? A. To give information to them so
that they could build -- we could build presentations and they could go to Washington and -- and present that information. We specifically did not do any investigation. We didn't look into how it
EXHIBIT 11
300 North LaSalle Street Chicago, Illinois 60654 Andrew Langan, P.C. To Call Writer Directly: (312) 862-2064 andrew.langan@kirkland.com (312) 862-2000 www.kirkland.com Facsimile: (312) 862-2200
March 14, 2013 Via E-Mail The Honorable Sally Shushan United States Magistrate Judge United States District Court 500 Poydras Street, Room B-345 New Orleans, LA 70130 Re: Dear Judge Shushan: BP writes regarding Mr. Godwins email of March 13, 2013, discussing among other things the materials associated with the Kodiak well that are referenced in TREX 48002 [that] are still being held at HESI's lab. Although Mr. Godwin describes this material as associated with the Kodiak well, based on the information in TREX 48002 it appears that the material was retrieved from the Deepwater Horizon when it was at the Macondo well. Mr. Godwins email states that HESI is currently investigating whether the materials are in fact associated with the Kodiak well, and if so, whether such materials are responsive to any previously issued subpoenas. Obviously, because these issues relate to evidence that is being presented now at the trial, time is of the essence. BP respectfully requests that the Court direct HESI to provide the information discussed below by no later than 8 am Monday, March 18, 2013. At a minimum, HESIs submission should include the following facts relevant to this issue: What exactly are the materials referenced in Mr. Godwins email to the Court (the email refers only to materials with no further description or even reference to the word cement)? For any cement samples, details should be provided regarding composition. How much material was collected, when was it collected, and how much remains today? Information regarding how and where the materials have been stored at HESI, and the chain of custody.
London Los Angeles Munich New York Palo Alto San Francisco Shanghai Washington, D.C.
MDL 2179 HESI Email of March 13, 2013 Disclosing Materials associated with the Kodiak well
Hong Kong
The Honorable Sally Shushan March 14, 2013 Page 2
A list should be provided of the individuals at HESI who were aware of the existence of these materials. That list should indicate when each of those individuals became aware of the materials. Why were these materials not produced in response to subpoenas and discovery requests or at least identified? When did HESI notify any representative of the United States of the existence of these materials?
Depending on what evidence is received, further discovery, information, or additional relief may be necessary. As always, we appreciate the Courts time and consideration in this matter. Respectfully submitted, /s/ Andrew Langan, P.C. Andrew Langan, P.C. cc: Steve Herman James Roy Defense Liaison Counsel Mike Underhill Hon. Attorney General Luther Strange Cory Maze Ben Allums Mike O'Keefe
EXHIBIT 12
EXHIBIT 13
Case 2:10-md-02179-CJB-SS Document 8977-14 Filed 03/21/13 Page 2 of 4 398
1 2 3 4 5 6 7 8 9 IN RE: OIL SPILL BY THE OIL RIG "DEEPWATER HORIZON" IN THE GULF OF MEXICO, ON APRIL 20, 2010 MDL NO. 2179 SECTION: J UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
JUDGE BARBIER MAG. JUDGE SHUSHAN
14 15 16 17 18 19 APPEARANCES: 20 21 22 23 24 25 GAUDET, KAISER, L.L.C. Board-Certified Court Reporters CUNNINGHAM BOUNDS, LLC By: Robert T. Cunningham, Esquire 1601 Dauphin Street Mobile, Alabama 36604 ON BEHALF OF THE PLAINTIFFS STEERING COMMITTEE Volume 2 of the videotaped deposition of TIMOTHY L. QUIRK, 202 Founder Street, Lafayette, Louisiana 70508, taken in the Pan American Life Center, Bayou Room, 11th Floor, 601 Poydras Street, New Orleans, Louisiana 70130, on Tuesday, March 22, 2011.
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
slurry design without the operator's approval, in this case BP, could it?
A.
I would --
MR. CHEN: Objection, form. THE WITNESS: It's not part of my duty but I -- I would assume that -- that -that the operator would make the decision. BY MS. KUCHLER:
Q.
Switching gears a little bit,
were you made aware of an incident in early April 2010 when the Macondo well experienced lost returns?
A. Q. A. Q.
Was I made aware? Uh-huh. Personally I was not made aware. Okay. So you wouldn't be able
to tell what, if any, impact that lost return incident had on the design of the cement slurry?
A. Q.
I would not. Are you aware that when the
DEEPWATER HORIZON arrived at the Macondo to replace the MARIANIS rig, that it had 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
onboard cement dry blend that Halliburton had originally brought over from the Kodiak number 2 well?
A. Q. A.
Yes. So -Only because they were -- I saw
the lab samples.

Q.
Okay.
And so from looking at
the lab samples you then know that that cement dry blend that was onboard the DEEPWATER HORIZON and used for the Macondo well was originally developed for the Kodiak number 2 well; is that right?
A.
I'm not certain about all that.
I don't know the -- I'm not exactly certain about that. I just know that there
was -- there was -- I don't remember exactly seeing that blend of cement on the -- from the other rig. I remember I
seeing samples of cement from the rig.
just can't be specific as to what blend of cement.

Q.
So tell me what knowledge you do
have about the genesis of that cement dry blend based on the documents that you have GAUDET, KAISER, L.L.C. Board-Certified Court Reporters
EXHIBIT 14
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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 CIVIL Docket No. MDL-2179 New Orleans, Louisiana Friday, March 15, 2013
******************************************************************* TRANSCRIPT OF WORKING GROUP STATUS CONFERENCE PROCEEDINGS HEARD BEFORE THE HONORABLE SALLY SHUSHAN UNITED STATES MAGISTRATE JUDGE APPEARANCES: FOR THE PLAINTIFFS: LEWIS KULLMAN STERBCOW & ABRAMSON BY: PAUL M. STERBCOW, ESQ. 601 POYDRAS STREET, SUITE 2615 NEW ORLEANS, LA 70130 LEVIN PAPANTONIO THOMAS MITCHELL RAFFERTY & PROCTOR BY: BRIAN H. BARR, ESQ. 316 South Baylen Street, Suite 600 Pensacola, FL 32502 IRPINO LAW FIRM BY: ANTHONY IRPINO, ESQ. 2216 Magazine St. New Orleans, LA 70130 WILLIAMSON & RUSNAK BY: JIMMY WILLIAMSON, ESQ. 4310 Yoakum Blvd. Houston, TX 77006 HERMAN, HERMAN & KATZ BY: SOREN E. GISLESON, ESQ. 820 O'Keefe Avenue New Orleans, LA 70113 WEITZ & LUXENBERG BY: ROBIN L. GREENWALD, ESQ. 700 Broadway New York, NY 10003
10
09:36:28 09:36:31 09:36:35 09:36:39 09:36:44 09:36:48 09:36:53 09:37:00 09:37:06 09:37:09 09:37:10 09:37:11 09:37:14 09:37:18 09:37:21 09:37:24 09:37:28 09:37:31 09:37:35 09:37:37 09:37:40 09:37:42 09:37:45 09:37:47 09:37:49
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
MR. GODWIN: Okay.
Maybe see his son again or something. Yesterday
Judge, Don Godwin for Halliburton.
afternoon per the court's request we did file and circulate among all parties our timeline regarding the Macondo well cement, and we think that fully explains the timeline with regard to the sequence of events from Halliburton's standpoint. We do have Andy's letter
requesting that we provide an update regarding how the cement got from the Kodiak well over to the Macondo well on the Deepwater Horizon and how it got back to the Broussard-Lafayette Lab. THE COURT: MR. GODWIN: Right. We'll have that done -- we've almost got it
done, Judge, we worked on it late last night and this morning, we will be on it today. And before eight o'clock Monday morning, and
hopefully even earlier, we know that would be what you would want us to do, we are going to circulate and file with the court our update regarding the chain of custody and where it was, whatever the material was. We're going to have that circulated among
everybody on or before 8 o'clock Monday morning. THE COURT: MR. GODWIN: THE COURT: Good, Don, I appreciate that. You're welcome, Judge. And in addition, I assume you are, but would
you take a look at and answer the specific questions contained in that March 14th letter from BP? MR. GODWIN: THE COURT: Yes, your Honor, we will. That would be great. Thank you, I appreciate

BP M4 Spoliation Sanctions Against HESI (Rec Doc 8977) With Attachments Amd Memo

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Dated: March 21, 2013

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/s/ Don K. Haycraft

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Dated: March 21, 2013

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/s/ Don K. Haycraft

Case 2:10-md-02179-CJB-SS Document 8977-2 Filed 03/21/13 Page 1 of 2

OTC; Performed Cement Testing for JIT

Chevron; Performed Cement Testing for National Commission

U.S. Dept. of Justice Cement Expert

Source: See pages 2-6.

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Direct: 214.939.4620 Fax: 214.527.3119 www.GodwinLewis.com Toll Free: 800-662-8393

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Plano - By Appointment Only

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February20,2010 February23,2010 March5,2010(onorabout)

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Case 2:10-md-02179-CJB-SS Document 8977-6 Filed 03/21/13 Page 2 of 3 Maher, Erin

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U.S. LEGAL SUPPORT - HOUSTON 713-653-7100

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done pursuant to the MDO court in New Orleans.