The U.S. Justice Department’s decision to open a criminal investigation into the Gulf Coast oil spill is threatening to complicate scores of lawsuits brought by people seeking compensation for the disaster.
At issue are questions that often come up in so-called “parallel proceedings” — in which multiple government agencies are investigating the same event for possible wrongdoing. Different divisions of the Justice and Interior Departments are looking into the oil spill, searching for civil and criminal liability. And in this situation, said lawyers with experience in environmental investigations, the existence of the private lawsuits adds another layer of difficulty.
For the companies responsible for the spill, there is now less incentive to cooperate in the civil suits, for fear that any statements could later be used against them in a criminal case. For the plaintiffs lawyers, the criminal inquiry is more of a mixed bag. They said they fear less cooperation from defendants, but they also held out hope for access to additional evidence if prosecutors make new information public in court. A guilty plea from a criminal defendant could bolster their cases, but an acquittal could hurt.
Daniel Becnel Jr., a Reserve, La., plaintiffs lawyer who has taken a leading role in the civil lawsuits, said he thinks the criminal investigation could hold back his clients.
“Criminal investigations — no matter what it is — always take years before they’re over, and guess what it does to the civil cases?” said Becnel, name partner at the Becnel Law Firm. He worries that some potential witnesses will invoke their Fifth Amendment right against self-incrimination. “If I want to take a deposition, and someone says, ‘I’m under investigation by the DOJ. I can take the Fifth,’ there’s nothing I can do about it. … You’ve got to wait until that criminal case is over before you can force them to testify.”
Jere Beasley of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala., also said he worries that key executives could refuse to be deposed. His firm has filed three proposed class actions related to the oil spill.
Companies that have been named as defendants in the civil suits — including BP PLC, Halliburton Co. and Transocean Ltd. — do not appear to have filed any motions to stop the lawsuits or to limit civil discovery on the basis of the criminal investigation. They either declined to comment or did not respond to questions about whether they plan to do so. But others said it’s likely they will. “It is predictable that the defense will ask for the civil cases to be held in abeyance,” said Oliver Houck, a Tulane University Law School professor who specializes in environmental law.
“If I were defending any of the companies involved here, I might be concerned about some of the civil discovery,” said Roger Marzulla, name partner at Marzulla Law in Washington and a former assistant attorney general in charge of the Justice Department’s Environment and Natural Resources Division. “BP’s lawyers have to be telling their people that this is a potential liability problem.”