Susan K. Avery, PhD

What led up to WHOI's production of deliberative documents to BP?

December 8, 2011: BP issues a subpoena requesting production of “[a]ny and all documents, data, information, and communications” related to the efforts of WHOI scientists to measure the flow of hydrocarbons from the “Deepwater Horizon” well site, as well as its composition.

December 23, 2011:  WHOI submits its objections to the scope of the subpoena.  In particular, WHOI objected to BP’s attempt to gain access to the deliberative communications and documents of its scientists.

December 2011--February 2012:  WHOI and BP correspond regarding the scope of the subpoena.  WHOI agrees to turn over all the raw data and documentation necessary to replicate its results, as per its policy on published works.

February 2, 2012:  WHOI submits an initial group of documents to the USCG for review.  This intermediary review was necessitated by WHOI’s contract with the USCG, which included a confidentiality clause.  Two additional sets of documents were submitted to the USCG in early March.

March 2, 2012:  WHOI submits its first production to BP.  This production was supplemented on March 29, 2012.  All told, these two productions tallied more than 50,000 pages of documentation and 34 GB of data.

March 8, 2012:  Despite WHOI’s assurance that these productions would provide the oil company with what it needed to reproduce, confirm, and validate the results, BP sent a letter to Magistrate Judge Sally Shushan in the Federal District Court for the Eastern District of Louisiana “request[ing] assistance” in enforcing the subpoena.  WHOI, for its part, responded by asking the Court to protect the deliberative documents and communications of its scientists.

March--April 2012:  Both BP and WHOI submit letters to each other and the court regarding the appropriate scope of the subpoena.

April 20, 2012:  Judge Shushan issues her order on the discovery dispute.  Judge Shushan recognized that the blanket production of academics’ deliberative documents and communications “could hamper future research efforts.”  Nevertheless, she ordered WHOI to deliver to BP all such documents produced prior to March 10, 2011—the date the FRTG issued its final report and estimate—by June 1, 2012.

Late April, 2012:  Both BP and WHOI sought reconsideration of Judge Shushan’s order.  BP argued that all deliberative documents should be turned over, while WHOI maintained that only those documents that pre-date August 10, 2010 (the date WHOI submitted its report to the USCG) should be produced.  WHOI chose August 10, 2010 because it allowed all USCG contract work emails to be produced, but protected academic work done after that date.  WHOI also offered to produce any work with the FRTG done by any WHOI scientists.  Both requests for reconsideration were denied on May 8, 2012.

May 15, 2012:  BP appealed to the United States District Court, asking it to reverse Judge Shushan’s order to the extent that it protected any of the deliberative documents and communications of WHOI’s scientists.  The district court summarily denied BP’s request on May 17, 2012.

June 1, 2012:  Pursuant to the Court’s orders, WHOI produced all pre-March 10, 2011 deliberative documents to BP.  All told, this production included roughly 3,500 emails and attachments.

June 29, 2012:  Subpoenas went to UCSB, UCSD, and Purdue

September 12-13, 2012:  Deposition of Rich Camilli, WHOI

Last updated: September 26, 2012