Gregoire et al v. Transocean, Ltd.

Filing 37

ORDER re notice of operation planned for June 21, 2010, to recover & inspect kinked riser section, under direction & with approval of Unified Command. ORDERED that: 1. All physical evidence recovered will be preserved; 2. No metallurgical analysis or other potentially destructive testing will be conducted on riser section (or any other physical evidence which may be recovered) without first providing Plaintiffs (or other interested parties) access to inspect riser section (or other evidence) & without an agreed or Court-approved protocol; 3. Shall prying of a bent portion be necessary to accomplish operational objectives under Unified Command protocol, such portion shall be comprehensively measured, photographed & otherwise documented in an appropriate way prior to such prying or other modification; 4. BPXP shall, consistent with Judge Zainey's previous Order, maintain a log/summary of each action relating to the recovery, inspection, modification and/or transport of equipment; 5. Any & all such logs/summaries, as well as any & all photographs, measurements, videotape, film, diagrams, 3-D analysis, wall thickness readings, and/or other documentation of removal, inspection &/or chain of custody shall be produced to Interim Plaintiffs Liaison Counsel on or before July 15th; &, 6. In light of BPXP's representations that no attorneys or litigation experts will be present for removal/inspection, any claims of privilege or work product over documents & information described in Paragraph 5 are deemed waived. This order shall apply only to proposed recovery of kinked riser section, & shall not be construed to in any way restrict direction or activities of the Unified Command in their investigation, recovery, well control, remedial or rescue efforts. Signed by Judge Carl Barbier on 6/21/10.(sek, )

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF LOUISIANA I n re: DEEPWATER HORIZON * * * * * * * * * * * * C I V I L ACTION N O . 10-CV-1156 S E C T I O N "J" D I V I S I O N "3" J U D G E CARL J. BARBIER M A G I S T R A T E SHUSHAN A p p lie s to 10-CV-1156, 10-CV-1196, 1 0 - C V - 1 2 2 2 , 10-CV-1249, 10-CV1 2 5 0 , 10-CV-1295, 10-CV-1324, 1 0 -C V -1 3 3 9 , 10-CV-1346, 1 0 - C V - 1 3 5 2 , 10-CV-1411, 10-CV1 4 4 6 , 10-CV-1452, 10-CV-1472, 10C V -1 4 7 2 , 10-CV-1482, 10-CV-1484, 1 0 - C V - 1 4 9 9 , 10-CV-1502, 10-CV1 5 1 5 , 10-CV-1540, 10-CV-1542, 10C V -1 5 6 1 , 10-CV-1574, 10-CV-1613, 1 0 -C V -1 6 3 0

*************************************** O RDER O n June 18, 2010, BP Exploration and Production, Inc. ("BPXP") provided notice of an opera tion planned for June 21, 2010, to recover and inspect the kinked riser section, under the direction a nd with the approval of Unified Command. BPXP advised in the notice that the riser section, once r e c o vered and brought to the deck of the recovery vessel, would be measured, inspected and photogra phed, but that no destructive testing will be conducted and no experts retained specifically for

litiga tion purposes would be present. At the conclusion of the operation, the riser section would be delivered to the USCG Base Support Unit in New Orleans, subject to the custody and supervision of the M a r in e Board of Investigation ("MBI"). In response, Plaintiffs Interim Co-Liaison Counsel contacted Interim Defense Liaison Counsel (who is also Counsel for BPXP) to request that Plaintiffs be permitted to send an expert to observe the recovery and inspection. Plaintiffs' Interim Co-Liaison Counsel further requested the written protocol for the recovery and inspection, as well as information regarding the creation of and access to independent photographs, videotape or other documentation of the recovery and inspection. Finally, cou nsel wanted to ensure that Plaintiffs' experts or consultants would have access to the riser section prior to any chemical cleaning, x-ray, metallurgical analysis, or other potentially destructive testing. B PX P objects to the presence of an attorney or expert representing the plaintiffs for safety, log istica l and other reasons. BPXP advises that the proposed action is solely for operational purposes a nd that no attorneys or experts for BPXP will be present. Subject to a protocol approved by the R esponsible Party Incident Commander, the U.S. Coast Guard, and MMS, wall thickness will be determ ined; a boroscope inspection will be conducted; rubber molds will be used to take impressions o f the holes (and all such rubber molds will be preserved); still photographs will be taken of the entire riser joint in order to subsequently create a 3-D rendering; the Surveyor will conduct the marking of the riser; all steps will be supervised by Custody Observers; and a Chain of Custody Record will be m a inta ined by the U.S. Coast Guard Commanding Officer. BPXP also points to a previous order by J u dge Zainey in Roshto, (Civil Action No. 10-1156) (May 19, 2010), declining to require BPXP to provide Plaintiffs access (or even notice) to operations performed at the direction and/or with the a pp rov a l of Unified Command, (subject to the limitation that Plaintiffs will be provided access whenever a ny of the defendants' various litigation experts examine the equipment or visit the scene). Finally, Page 2

B P X P represents that any motion by Plaintiffs to MBI to inspect the riser section at the Coast Guard fa cility will not be opposed O n June 20, 2010, the Court held a Status Conference with Plaintiffs' and Defendants' Interim L ia ison Counsel; based on the record and the argument of counsel: I T IS HEREBY ORDERED that: 1. 2. All physical evidence recovered will be preserved; N o metallurgical analysis or other potentially destructive testing will be conducted on the riser section (or any other physical evidence which may be recovered) without first providing Plaintiffs (or other interested parties) access to inspect the riser section (or other evidence) and without an agreed or Court-approved protocol; S ha ll prying of a bent portion be necessary to accomplish the operational objectives u nder the Unified Command protocol, such portion shall be comprehensively measured, photogra phed and otherwise documented in an appropriate way prior to such prying or other modification; B P X P shall, consistent with Judge Zainey's previous Order, maintain a log/summary of each action relating to the recovery, inspection, modification and/or transport of the equ ipm ent; A ny and all such logs/summaries, as well as any and all photographs, measurements, vid eota pe, film, diagrams, 3-D analysis, wall thickness readings, and/or other docu m enta tion of the removal, inspection and/or chain of custody shall be produced to Interim Plaintiffs Liaison Counsel on or before July 15 th; and, In light of BPXP's representations that no attorneys or litigation experts will be present for the removal / inspection, any claims of privilege or work product over the documents a nd information described in Paragraph 5 are deemed waived.

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T his order shall apply only to the proposed recovery of the kinked riser section, and shall not be construed to in any way restrict the direction or activities of the Unified Command in their investiga tion, recovery, well control, remedial or rescue efforts.

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S IGN ED New Orleans, Louisiana, this ___ day of June, 2010. 21st

Hon. Carl iJ. d States District Judge Judge Un te Barbier, U.S. District

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