Wednesday, May 16, 2012 5:53 AM PT
Attorneys Say Evidence
Clears Ex-BP Engineer

     NEW ORLEANS (CN) - Attorneys for the former BP engineer charged with deleting text messages related to the size of the 2010 oil spill said Monday that evidence held by an unnamed third party proves the engineer's innocence.
     Attorneys for Kurt Mix, who was arrested last month on charges he deleted text messages that revealed he knew the oil spill was too big to be stopped by BP's containment attempts, say they have information that would negate all charges against him.
     The attorneys are asking the court to force disclosure of the evidence.
     Mix, 50, of Katy, Texas, is the only person so far to face criminal charges in connection with the worst oil spill in U.S. history. He pleaded not guilty last month to two counts of obstruction of justice.
     According to the criminal complaint filed in United States Eastern District of Louisiana last month, Mix deleted over 300 text messages, including one specific message sent on May 26, 2010, that revealed he understood a proposed 'top kill' operation to shut down the Macondo well would not work because of the size of the oil spill.
     Mix's attorneys said in their motion Monday the new information they can provide is "exculpatory" and is certain to clear Mix of charges.
     The criminal complaint said "on or about Oct. 4, 2010, after Mix learned that his electronic files were to be collected by a vendor working for BP's lawyers, Mix allegedly deleted on his iPhone a text string containing more than 200 text messages with a BP supervisor.
     "The deleted texts, some of which were recovered forensically, included sensitive internal BP information collected in real-time as the Top Kill operation was occurring, which indicated that Top Kill was failing."
     After learning that a vendor working for BP's outside counsel planned to image his phone, Mix allegedly deleted 100 text messages on Aug. 19 from a conversation he had with a BP contractor. The pair were working together to gauge how much oil was flowing from the well.
     If convicted, Mix faces a maximum 20 years in federal prison and a $500,000 fine.
     According to Mix's attorneys' motion, the "exculpatory" information they will reveal is "compelling and unambiguous, and it conclusively demonstrates that defendant Mix did not commit the crimes charged in the Indictment."
     The document goes on to say "the exculpatory information is of such a character that it eviscerates even the supposed 'probable cause' upon which the Indictment is predicated."
     Attorneys say the U.S. government was unaware of the evidence when it charged Mix last month because the third-party privilege-holder has not waived its claim of privilege.
     Because the privilege-holder has not waived privilege, a protective order is necessary to uphold defendant Mix's rights without causing unnecessary harm to the privilege-holder, the attorneys say.
     The attorneys also filed a motion Monday to permanently seal all evidence they produce.
     Mix's attorneys asked U.S. District Judge Jane Triche-Milazzo for a June 7 hearing on whether the privileged information about the deleted texts can be revealed to prosecutors.
     The explosion of the Deepwater Horizon drilling rig on April 20, 2010, killed 11 workers and pumped an estimated 4.9 million barrels of oil into the Gulf of Mexico over three months.The motion was filed by Michael McGovern of Ropes & Gray LLP in New York. Joan McPhee and Aaron Katz of Ropes & Gray LLP in Boston are also representing.