BP Oil Spill Litigation:U.S. Appeals Judge’s Decision on Motion to Compel BP to Produce Documents Based on the Crime-Fraud Exception to the Attorney-Client Privilege

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: OIL SPILL BY THE OIL RIG : MDL NO. 2179 ADEEPWATER HORIZON@ IN THE GULF : OF MEXICO, ON APRIL 20, 2010 : SECTION J

: THIS DOCUMENT RELATES TO: : JUDGE BARBIER

: ALL CASES : MAGISTRATE JUDGE SHUSHAN

: ................................................................................................................................................ UNITED STATES= MOTION TO APPEAL DECISION OF THE MAGISTRATE JUDGE

REGARDING CRIME-FRAUD MOTION TO COMPEL (Dkt. No. 9592) The United States respectfully appeals the Magistrate Judge’s decision (Dkt. No. 9592)

concerning the United States’ motion to compel production of documents based on the crime-

fraud exception (Dkt. No. 8417) for the reasons briefly summarized here and described in full in

our accompanying brief.

BP pled guilty to the crime of obstructing justice by providing false and misleading flow

rate information to Congress during the response. The company provided that same false

information to the National Incident Command by email and to the public through filings with

the SEC. BP’s false flow rate statements were developed under the direction of the company’s

attorneys, as BP itself explained to the Magistrate Judge in multiple filings. Under blackletter

law, BP’s use of attorneys to aid in its wrongdoing destroys any privilege for the

communications BP used in its criminal or fraudulent activity. This bedrock principle of

privilege law is known as the crime-fraud exception to the attorney-client privilege.

In the motion to compel, the United States sought all documents related to the preparation

of seven statements BP made to government officials and the public regarding the flow rate

Case 2:10-md-02179-CJB-SS Document 10002 Filed 05/15/13 Page 1 of 5

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during the response, specifically (1) fraudulent communications to Congress on May 4, 2010 and

fraudulent letters to Congressman Markey dated May 24 and June 25, 2010; (2) a fraudulent

statement to Federal On-Scene Coordinator Admiral Mary Landry on May 19, 2010; and

(3) fraudulent securities statements on April 29 and 30 and May 4, 2010 (collectively referred to

here as the “Crime-Fraud Communications”). On April 30, 2013, the Magistrate Judge ruled on

the United States’ motion by ordering production of 22 documents sought by the United States

and finding that 84 additional documents identified by BP as related to the Crime-Fraud

Communications did not fall within the crime-fraud exception.

The United States submits that the Magistrate Judge used the incorrect legal standard and

applied the standard incorrectly. A court reviewing a crime-fraud assertion conducts a two-step

analysis in the Fifth Circuit. First, the reviewing court determines whether the party asserting

crime-fraud has made a prima facie case that its opponent “intended to further an ongoing crime

or fraud during the attorney-client relationship.” In re Grand Jury Subpoena, 419 F.3d 329, 346

(5th Cir. 2005). Once that showing is made, “the crime-fraud exception applies.” Id. The

second step addresses which documents must be produced – those “reasonably related to the

furtherance of the ongoing or future crime or fraud at issue.” Id. at 347. The United States

respectfully submits that the Magistrate Judge made three errors in her opinion. At the first step

of the analysis, she applied the law to the facts incorrectly in concluding that the United States

failed to make a prima facie showing of a crime or fraud with respect to BP’s false statements to

the SEC. At the second step of the analysis, she both used an incorrect legal standard not briefed

by the Parties and then applied it incorrectly.

The Magistrate Judge’s decision was contrary to law, and the United States respectfully

requests that the Court overturn that decision and grant the United States’ motion to compel in

full. Specifically, the United States requests that the Court order the production of all documents


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reasonably related to the preparation of the Crime-Fraud Communications. The Parties would

then work with the Magistrate Judge to define the universe of documents affected. We

incorporate by reference our filings before the Magistrate Judge in this appeal.

Respectfully submitted,

BRIAN HAUCK Deputy Assistant Attorney General Civil Division

PETER FROST Directory, Torts Branch, Civil Division Admiralty and Aviation STEPHEN G. FLYNN Assistant Director MICHELLE DELEMARRE SHARON SHUTLER JESSICA SULLIVAN JESSICA MCCLELLAN MALINDA LAWRENCE Trial Attorneys

/s/ R. Michael Underhill R. MICHAEL UNDERHILL, T.A. Attorney in Charge, West Coast Office Torts Branch, Civil Division U.S. Department of Justice 7-5395 Federal Bldg., Box 36028 450 Golden Gate Avenue San Francisco, CA 94102-3463 Telephone: 415-436-6648 Facsimile: 415-436-6632 E-mail: [email protected]

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division

SARAH HIMMELHOCH Senior Litigation Counsel NANCY FLICKINGER SCOTT CERNICH THOMAS BENSON Senior Attorneys DEANNA CHANG A. NATHANIEL CHAKERES JUDY HARVEY ABIGAIL ANDRE RACHEL HANKEY BETHANY ENGEL Trial Attorneys

/s/ Steven O’Rourke STEVEN O’ROURKE Senior Attorney Environmental Enforcement Section U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044 Telephone: 202-514-2779 Facsimile: 202-514-2583 E-mail: steve.o’[email protected]

DANA J. BOENTE United States Attorney Eastern District of Louisiana SHARON D. SMITH Assistant United States Attorney Eastern District of Louisiana 650 Poydras Street, Suite 1600


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New Orleans, LA 70130 Telephone: (504) 680-3000 Facsimile: (504) 680-3184 E-mail: [email protected]

Attorneys for the UNITED STATES OF AMERICA


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CERTIFICATE OF SERVICE

I hereby certify that the above and foregoing document 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.

Date: May 15, 2013. /s/ Steve O’Rourke U.S. Department of Justice


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: OIL SPILL BY THE OIL RIG : MDL NO. 2179 ADEEPWATER HORIZON@ IN THE GULF : OF MEXICO, ON APRIL 20, 2010 : SECTION J

: THIS DOCUMENT RELATES TO: : JUDGE BARBIER

: ALL CASES : MAGISTRATE JUDGE SHUSHAN

: ................................................................................................................................................

UNITED STATES= MEMORANDUM IN SUPPORT OF MOTION TO APPEAL DECISION OF THE MAGISTRATE JUDGE REGARDING CRIME-FRAUD

MOTION TO COMPEL (Dkt. No. 9592)

Case 2:10-md-02179-CJB-SS Document 10002-1 Filed 05/15/13 Page 1 of 32

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TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. The Criminal And Fraudulent Communications At Issue . . . . . . . . . . . . . . . . . . 4

A. False and Misleading Statements to the Public through SEC Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. False and Misleading Statements to Congress . . . . . . . . . . . . . . . . . . . . . 4

1. May 4, 2010 presentation to Congressional Subcommittee claiming flow rate was 5,000 BOPD . . . . . . . . . . . . . . . . . . . . . 4

2. May 24, 2010 letter to Congressional Subcommittee claiming flow rate was 5,000 BOPD . . . . . . . . . . . . . . . . . . . . . 5

3. June 25, 2010 letter to Congressional Subcommittee misstating basis for worst case discharge estimate . . . . . . . . . . 6

C. False and Misleading Statements to the National Incident Command . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. BP Used Attorneys To Direct Its Crime-Fraud Communications . . . . . . . . . . . . 8

III. BP’s Internal Flow Rate Estimates Were Far Higher Than Those Shared With The Government And The Public . . . . . . . . . . . . . . . 8

IV. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. Applicable Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Standard for Appeal of a Magistrate Judge Decision . . . . . . . . . . . . . . . 13

B. Standard Applicable To The Crime-Fraud Exception . . . . . . . . . . . . . . 13

II. The Crime-Fraud Exception Is Triggered By BP’s Knowingly False Flow Rate Statements . . . . . . . . . . . . . . . . . . . . . . 15


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III. All Documents Reasonably Related to Preparation of the Crime-Fraud Communications Should Be Produced . . . . . . . . . . . . . . . . . 17

A. The Documents Sought by the United States Meet the Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. The Magistrate Judge Employed the Incorrect Standard . . . . . . . . . . . . 19

C. The Magistrate Judge Erred in Using Mr. Rainey’s Involvement toDetermine whether Individual Documents Must Be Produced . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


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TABLE OF AUTHORITIES FEDERAL CASES

Clark v. United States, 289 U.S. 1 (1933) .....................................................................1, 13

Coleman v. American Broadcasting Cos., 106 F.R.D. 201 (D.D.C. 1985) .......................14 In re Grand Jury Proceedings, 43 F.3d 966 (5th Cir. 1994) ............................................20

In re Grand Jury Proceedings, 680 F.2d 1026 (5th Cir. 1982) .....................................1, 20

In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) ....................................... passim

In re International Systems & Controls Corp. Securities Litigation., 693 F.2d 1235 (5th Cir. 1982) .......................................................................................18

In re Richard Roe, Inc., 68 F.3d 38 (2nd Cir. 1995) ....................................................19, 20 In re Richard Roe, Inc., 168 F.3d 69 (2nd Cir. 1999) ........................................................20 In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) ...........................................................14 Matter of Toyota of Jefferson, Inc., 14 F.3d 1088 (5th Cir. 1994) ...................................13 Payne v. United States, 289 F.3d 377 (5th Cir. 2002) ......................................................13 Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986) ............................................................13 Rambus, Inc. v. Infineon Technologies AG, 222 F.R.D. 280 (E.D. Va. 2004) ..................13

Sandhu v. Bransom, 932 F. Supp. 822 (N.D. Tex. 1996) .................................................13 Securities and Exchange Commission v. BP p.l.c., Civil Action No. 2:12-cv-02774 (E.D. La.) (Dkt. Nos. 1 & 2) .....................................4 Southern Scrap Metal Co.. v. Fleming, Number Civ.A. 01-2554, 2003 WL 21474479 (E.D.La. June 18, 2003) .............................................................20

United States v. Ballard, 779 F.2d 287 (5th Cir. 1987) .....................................................14

United States v. BP Exploration and Production, Inc., Criminal Case

2:12-cr-00292-SSV-DEK (E.D. La.) Dkt. No. 2 ...........................................................5 United States v. Dyer, 722 F.2d 174 (5th Cir. 1983) .........................................................18


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United States v. Kaplan, No. 02 CR. 883(DAB), 2003 WL 22880914 (S.D.N.Y. Dec. 5, 2003) ......................................................20, 21 United States v. Zolin, 491 U.S. 554 (1989) ................................................................13, 14

FEDERAL STATUTES

28 U.S.C. § 636(b)(1)(A) .................................................................................................13 33 U.S.C. § 1321(b)(7)(D) ...................................................................................................4 15 U.S.C. § 78j(b) ............................................................................................................17 15 U.S.C. § 78m(a) ............................................................................................................17

FEDERAL REGULATIONS

17 C.F.R. 240.10b-5 .........................................................................................................17 17 C.F.R. 240.12b-20 .........................................................................................................17 17 C.F.R. 240.240.13a-16 ..................................................................................................17

FEDERAL RULES

Fed. R. Civ. P. 72(a) .........................................................................................................13

OTHER AUTHORITIES Deborah F. Buckman, Annotation, Crime-Fraud Exception Work Product

Privilege in Federal Courts, 178 A.L.R. Fed. 87, § 2[a] (2002) ...............................14


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TABLE OF EXHIBITS

Ex. 1 July 19, 2012 Letter from R. Gasaway to Judge Shushan, Dkt. No. 7009 (“July 19, 2012 Letter”)

Ex. 2 BP Crime Fraud Privilege Logs (Confidential)

Ex. 3 Robert Sanders Deposition at 127:20-128:3, 212:10-213:1

Ex. 4 Thad Allen Deposition at 514:16-516:22

Ex. 5 Simon Bishop Deposition at 230:6-12, 242:25-243:9, 486:5-10, 488:24-489:7

Ex. 6 Trevor Hill Deposition at 293:17-294:12 Ex. 7 BP April 29, 2010 Form 6-K Ex. 8 BP April 30, 2010 Form 6-K Ex. 9 BP May 4, 2010 Form 6-K Ex. 10 May 14, 2010 Letter E. Markey to L. Mackay Ex. 11 May 24, 2010 Letter, K. Bailey to E. Markey

Ex. 12 BP Guilty Plea Agreement in United States v. BP Exploration and Production, Inc., No. 2:12-cr-00292-SSV-DEK [Dkt. 2]

Ex. 13 June 25, 2010, BP Letter from David Nagle to Congressional Subcommittee

Ex. 14 May 17, 2010 Letter from Admiral Landry to D. Suttles

Ex. 15 David Rainey Deposition at 182:4-184:15

Ex. 16 May 16, 2010 Email, R. Lynch Email to D. Rainey (Confidential)

Ex. 17 May 18, 2010 Email chain, J. Lynch to D. Suttles, including May 17, 2010 Email, D. Rainey to J. Lynch (Confidential)

Ex. 18 May 19, 2010 D. Suttles Email to Admiral Landry (Dep. Ex. 3218)

Ex. 19 May 15, 2010 Email, M. Mason to Andy Inglis, cc: Jasper Peijs, Subject: Macondo Oil Rate (Dep. Ex. 3220)

Ex. 20 BP Powerpoint titled “Well Control Simulation Results” – April 22, 2010 (BP-HZN-2179MDL00443041- BP-HZN-2179MDL00443043) (Confidential)


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Ex. 21 Email chain from Kelly McAughan, Bryan Ritchie, and Jonathan Bellow, dated April 23-24, 2010, Subject: Re: Flow rate and production profile (Dep. Ex. 2409) (Confidential)

Ex. 22 Timothy Lockett Deposition at 29:22-30:1; 89:22-91:24; 155:4-156:16; 425:23-428:24

Ex. 23 Email from Tim Lockett to Farah Saidi, cc: Trevor Hill, Ian Stillwell, dated April 27, 2010 Subject: Horizon pipesim model (Dep. Ex. 9445) (Confidential)

Ex. 24 Email from Tim Lockett to Trevor Hill, dated May 3, 2010, Subject: Best estimate (Dep. Ex. 9466) (Confidential)

Ex. 25 Charles Holt Deposition at 261:1-18

Ex. 26 April 30, 2010 Email Exchange (Dep. Ex. 10518)

Ex. 27 May 17, 2010 Email, T. Lockett to T. Hill (Dep. Ex. 8865)


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INTRODUCTION

As oil gushed from the Macondo 252 well during Spring 2010, BP told Congress, the

National Incident Command, and the public that the flow rate was 5,000 barrels of oil per day

(“BOPD”). Meanwhile, company engineers were performing internal analyses showing that the

flow rate could be up to 20 times greater.

BP pled guilty to the crime of obstructing justice by providing false and misleading flow

rate information to Congress during the response. The company provided that same false

information to the National Incident Command by email and to the public through filings with

the SEC. BP’s false flow rate statements were developed under the direction of the company’s

attorneys, as BP itself explained to the Magistrate Judge in multiple filings. The letters to

Congress that formed the basis of BP’s guilty plea were the results of “a process organized and

directed by lawyers.” Ex. 1, July 19, 2012 Letter from R. Gasaway to Judge Shushan, Dkt.

No. 7009 (“July 19, 2012 Letter”) at 5.

Under blackletter law, BP’s use of attorneys to aid in its wrongdoing destroys any

privilege for the communications BP used in its criminal or fraudulent activity. This bedrock

principle of privilege law is known as the crime-fraud exception to the attorney-client privilege.

As the Supreme Court has explained, “[a] client who consults an attorney for advice that will

serve him in the commission of a fraud will have no help from the law. He must let the truth be

told.” Clark v. United States, 289 U.S. 1, 15 (1933) (emphasis added). The exception applies

whether the attorneys had knowledge of the crime or not. See e.g., In re Grand Jury

Proceedings, 680 F.2d 1026, 1028 (5th Cir. 1982) (“The crime or fraud exception applies even

where the attorney is completely unaware that his advice is sought in furtherance of such an

improper purpose.”).


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After BP’s guilty plea was accepted by Judge Vance, the United States moved to compel

production of all documents related to the preparation of BP’s fraudulent statements to

government officials and the public regarding the flow rate, specifically (1) fraudulent

communications to Congress on May 4, 2010 and fraudulent letters to Congressman Markey

dated May 24 and June 25, 2010; (2) a fraudulent statement to Federal On-Scene Coordinator

Admiral Mary Landry on May 19, 2010; and (3) fraudulent securities statements on April 29 and

30 and May 4, 2010 (collectively referred to here as the “Crime-Fraud Communications”). On

April 30, 2013, the Magistrate Judge ruled on the United States’ motion by ordering production

of 22 documents sought by the United States and finding that 84 additional documents identified

by BP as related to the Crime-Fraud Communications did not fall within the crime-fraud

exception.1

The United States submits that the Magistrate Judge used the incorrect legal standard and

applied the standard incorrectly. A court reviewing a crime-fraud assertion conducts a two-step

analysis in the Fifth Circuit. First, the reviewing court determines whether the party asserting

crime-fraud has made a prima facie case that its opponent “intended to further an ongoing crime

or fraud during the attorney-client relationship.” In re Grand Jury Subpoena, 419 F.3d 329,

346 (5th Cir. 2005). Once that showing is made, “the crime-fraud exception applies.” Id.

The second step addresses which documents must be produced – those “reasonably related to the

furtherance of the ongoing or future crime or fraud at issue.” Id. at 347. The United States

respectfully submits that the Magistrate Judge made three errors in her opinion. At the first step

of the analysis, she applied the law to the facts incorrectly in concluding that the United States

failed to make a prima facie showing of a crime or fraud with respect to BP’s false statements to

1 BP identified a total of documents as related to the Crime-Fraud Communications. BP itself proposed to produce of those documents, while another had already been produced. See Ex. 2, BP Crime-Fraud Privilege Logs. The United States and Transocean contend that BP has addressed only a small subset of the documents responsive to the motion. The question is still being briefed before the Magistrate Judge.


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the SEC. At the second step of the analysis, she both used an incorrect legal standard not

briefed by the Parties and then applied it incorrectly by using the involvement of a particular BP

vice president as a proxy for whether the document was reasonably related to the furtherance of

the crime or fraud.

The Magistrate Judge’s decision was contrary to law, and the United States respectfully

requests that the Court overturn that decision and grant the United States’ motion to compel in

full. Specifically, the United States requests that the Court order the production of all

documents reasonably related to the preparation of the Crime-Fraud Communications. The

Parties would then work with the Magistrate Judge to define the universe of documents affected.

We incorporate by reference our filings before the Magistrate Judge. See Dkt. No. 8417 and

8868 (unredacted versions to be provided as Attachments 1 and 2 to the unredacted version of

this brief).

BACKGROUND

The Court is well aware of what happened at the Macondo well, and we will not revisit

the basics of the blowout or the response here. Over the 87 days that followed the blowout, BP

attempted to stop the flow of oil under the oversight of the United States. Most of the “source

control” and collection attempts BP employed were dependent in part or in whole on the flow

rate from the well. See Ex. 3, Robert Sanders Deposition at 127:20-128:3, 212:10-213:1; Ex. 4,

Thad Allen Deposition at 514:16-516:22; Ex. 5, Simon Bishop Deposition at 230:6-12,

242:25-243:9, 486:5-10, 488:24-489:7; Ex. 6, Trevor Hill Deposition at 293:17-294:12. In

order to effectively oversee these flow-dependent response efforts, the United States needed

truthful and accurate flow information. In the legal proceedings that BP knew would follow,

substantial civil penalties can be assessed under the Clean Water Act on a per barrel basis for oil


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discharged in the Gulf of Mexico in connection with activities under the Outer Continental Shelf

Lands Act. 33 U.S.C. § 1321(b)(7)(D).2

I. The Criminal And Fraudulent Communications At Issue

A. False and Misleading Statements to the Public through SEC Filings

One week after the rig exploded, BP submitted a form 6-K to the SEC. In that filing,

BP stated that the oil flow was “currently estimated at up to 5,000 barrels a day.” Ex. 7, April 29,

2010 Form 6-K at 6 (emphasis added). The following day, BP issued a press release as a SEC

Form 6-K and included the flow estimate as “up to 5,000 barrels a day.” Ex. 8, April 30, 2010

Form 6-K. On May 4, 2010, BP issued another press release as a Form 6-K and stated that

“current estimates by [NOAA] suggest some 5,000 barrels . . . of oil per day are escaping from the

well.” Ex. 9, May 4, 2010 Form 6-K.

The SEC filed a civil complaint against BP that alleged “material misrepresentations and

omissions” in the three Form 6-K statements. Securities and Exchange Commission v. BP

p.l.c., Civil Action No. 2:12-cv-02774 (E.D. La.), Complaint, Dkt. No. 1. BP later agreed to

pay $525 million to settle the SEC civil action. Id. Dkt. No. 2-1.

B. False and Misleading Statements to Congress

1. May 4, 2010 presentation to Congressional Subcommittee claiming flow rate was 5,000 BOPD

On May 4, 2010, BP Vice President David Rainey made a presentation to a House

Subcommittee (“Subcommittee”) in which he stated that 5,000 BOPD was the best estimate of the

flow rate, and that the worst case discharge was 60,000 BOPD. See Ex. 10, May 14, 2010 Letter

E. Markey to L. Mackay. Subcommittee Chairman Markey responded by letter on May 14, 2010.

2By way of example, penalties of up to $4,300 per barrel of oil can be assessed in the event BP is found grossly negligent or to have exercised willful misconduct. Thus the difference between a spill of 5,000 BOPD and 50,000 BOPD is nearly $200 million in penalty liability per day.


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Chairman Markey noted that other, public estimates of the spill were greater than BP’s alleged

worst case discharge figure, and stated, “I am concerned that an underestimation of the flow may

be impeding the ability to solve the leak and handle management of the disaster. We have already

had one estimate that grossly underestimated the amount of oil being released and we cannot

afford to have another.” Id. (emphasis added). The import of Chairman Markey’s letter was that

BP misled the Subcommittee in the May 4, 2010 briefing.

2. May 24, 2010 letter to Congressional Subcommittee claiming flow rate was 5,000 BOPD

BP responded with a letter signed by BP attorney Kevin Bailey to Chairman Markey on

May 24, 2010. In that letter, BP represented that the 5,000 BOPD flow rate was the “most

scientifically informed judgment” and that subsequent flow rate estimates had “yielded

consistent results.” Ex. 11, May 24, 2010 Letter, K. Bailey to E. Markey, Dep. Ex. 1651. In

fact, BP later admitted that its own internal estimates at the time showed the flow rate was as

high as 96,000 BOPD. Ex. 12, United States v. BP Exploration and Production, Inc., Criminal

Case 2:12-cr-00292-SSV-DEK (E.D. La.) Dkt. No. 2 (“BP Guilty Plea Agreement”) at 16-17.

In pleading guilty to obstruction of Congress based in part upon the May 24 letter, BP stated that

it “agree[d] that if the case were to proceed to trial, the Government could establish beyond a

reasonable doubt” the following facts related to the May 24 letter:

On or about May 24, 2010, in the Eastern District of Louisiana and elsewhere, BP did corruptly, that is, with an improper purpose, endeavor to influence, obstruct, and impede the due and proper exercise of the power of inquiry under which an inquiry and investigation was being had by a Committee of the United States House of Representatives into the amount of oil flowing from the Macondo Well (“flow rate”) through the following omissions and false and misleading statements in its May 24, 2010 response (“Markey Response”) to the Committee on Energy and Commerce:

1. BP, through a former vice president, withheld information and documents relating to multiple flow-rate estimates prepared by BP engineers that showed flow rates far higher than 5,000 BOPD, including as high as 96,000 BOPD


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2. BP, through a former vice president, withheld information and documents relating to internal flow-rate estimates he prepared using the Bonn Agreement analysis, that showed flow rates far higher than 5,000 BOPD, and that went as high as 92,000 BOPD.

3. BP, through a former vice president, falsely represented that the flow-rate estimates included in the Response were the product of the generally-accepted ASTM methodology. At the time that this false representation was made, BP’s former vice president knew that those estimates were the product of a methodology he devised after, among other things, a review of a Wikipedia entry about oil spill estimation.

4. BP, through a former vice president, falsely represented that the flow-rate estimates included in the Markey Response had played “an important part” in Unified Command’s decision on April 28, 2010, to raise its own flow-rate estimate to 5,000 BOPD. At the time this false representation was made, BP’s former vice president knew that those flow-rate estimates had not played “an important part” in Unified Command’s decision to raise its flow-rate estimate and had not even been distributed outside of BP prior to that decision.

5. BP falsely suggested, in its May 24, 2010 letter, that the Unified Command’s flow rate estimate of 5,000 barrels of oil per day (“BOPD”) was the “most scientifically informed judgment” and that subsequent flow rate estimates had “yielded consistent results.” In fact, as set forth above, BP had multiple internal documents with flow rate estimates that were significantly greater than 5,000 BOPD that it did not share with the Unified Command.

Ex. 12, BP Guilty Plea Agreement at 16-17 (emphasis added).

3. June 25, 2010 letter to Congressional Subcommittee misstating basis for BP’s worst case discharge estimate

On June 25, 2010, BP sent another letter to the Subcommittee, this time from David Nagle,

who at the time led BP’s government relations group. In the June 25 letter, BP attempted to

explain why the company had told the Subcommittee on May 4 that the worst case discharge was

60,000 BOPD, while later saying it was 100,000 BOPD. The June 25 letter stated that the

100,000 BOPD worst case discharge estimate was developed after subsequent “pressure data was

obtained from the BOP stack.” Ex. 13, June 25, 2010 Letter, D. Nagle to E. Markey at 1. This

statement too was false, as BP admitted in its plea agreement:


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On or about June 25, 2010, in a BP letter to Congressman Markey, BP’s former vice president inserted language that falsely stated that BP’s worst case discharge estimate was raised from 60,000 BOPD to 100,000 BOPD after subsequent “pressure data was obtained from the BOP stack.” At the time this false representation was made, BP’s former vice president knew that the 100,000 BOPD figure was not first derived after subsequent pressure data had been obtained, but instead, he had been aware of a 100,000 BOPD worst case discharge since as early as on or about April 21, 2010.

Ex. 12, BP Guilty Plea Agreement at 17-18.

C. False and Misleading Statements to the National Incident Command

In the midst of BP’s false statements to Congress, it provided the same false information

to the National Incident Command. On May 17, 2010, then-Rear Admiral Mary Landry, the

Federal On-Scene Coordinator (“FOSC”) for the Macondo oil spill appealed to Doug Suttles, BP

America Inc.’s Chief Operating Officer and BP’s representative to the Unified Command, to

provide the Unified Command with “full access to all information related to the oil discharge

rate as soon as possible,” in order to “help us continue to hone our efforts to respond most

effectively to the spill and to mitigate the ongoing threat to our environment and coastal

communities.” See Ex. 14, May 17, 2010 Letter, Admiral Landry to D. Suttles. Meanwhile,

on May 16, 2010,

Mr. Suttles took the Rainey Memo and sent it

to Admiral Landry by email on May 19, 2010. Ex. 18, May 19, 2010 Email, D. Suttles to

Admiral Landry, Dep. Ex. 3218. The Rainey Memo was also submitted as part of BP’s May 24

letter to the Subcommittee. As described above, BP admitted that it obstructed justice by


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omitting relevant internal information and making false representations in the May 24 letter,

including the Rainey Memo.

II. BP Used Attorneys To Direct Its Crime-Fraud Communications

There can be no doubt that BP’s attorneys played a leading role in the Crime-Fraud

Communications – BP repeatedly told the Magistrate Judge precisely that. In defending against

earlier privilege challenges before the Magistrate Judge, BP made clear that the company’s

responses to Congressional inquiries were led and directed by attorneys:

Congressional requests received by the company in this time period were handled through a process organized and directed by lawyers in which information was gathered from personnel within the company. Congressional responses were then drafted in a collaborative process led by WilmerHale and involving both in-house and external lawyers along with appropriate BP personnel. Although not every communication regarding the effort to collect information and to respond to requests involved the direct participation of an attorney, the overall process was a lawyer-directed effort seeking to ensure that BP received appropriate legal advice with respect to the requests and the company’s responses.

Dkt. No. 7009 at 5 (emphasis added).

III. BP’s Internal Flow Rate Estimates Were Far Higher Than Those Shared With The Government And The Public

At the same time BP was telling Congress, the National Incident Command, and the

public that the flow rate was 5,000 BOPD, BP was performing internal modeling showing the

flow rate could be as high as 100,000 BOPD. BP employees recognized the difference between

the company’s public statements and its private modeling. On May 15, 2010, then company

Vice President Mike Mason, who led various well performance and modeling efforts during the

blowout response, wrote an email to BP Chief Executive Andy Inglis warning against “standing

behind” the 5,000 BPD estimate. Ex. 19, May 15, 2010 Email, M. Mason to A. Inglis, Dep. Ex.

3220. Mason added that “our modelling shows that this well could be making anything up to ~


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100,000 bopd depending on a number of unknown variables . . . We can make the case for 5,000

bopd only based on certain assumptions.” Id. Mr. Mason’s email was forwarded to BP General

Counsel John Lynch Jr. Id.

While Mr. Mason’s email to the top of the company hierarchy was perhaps the most

dramatic internal repudiation of the BP’s public 5,000 BOPD flow rate, the company’s engineers

were conducting work from the very first days of the spill that made clear that the flow rate could

be much higher than BP was telling the government or the public.

Ex. 22, Timothy Lockett Deposition at

29:22-30:1; 89:22-91:24; Ex. 23, April 27, 2010 Email, T. Lockett to F. Saidi, Dep. Ex. 9445.

On May 3, 2010 – the day before Mr. Rainey’s presentation to the

Subcommittee offering 5,000 BOPD as the best estimate –

Ex. 24, May 3, 2010 Email, T. Lockett to T. Hill, Dep.

Ex. 9446.

Ex. 22, Lockett Dep. at 155:4-156:16; 425:23-428:24; Ex. 24,

May 3, 2010 Email, T. Lockett to T. Hill, Dep. Ex. 9446 at 3.3

3 We focus here on estimates predating the SEC 6-Ks and the May 4 presentations. Further modeling showing similar results continued until the end of the response. BP has claimed privilege over any flow rate calculations performed after July 17, 2010.


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Notably, when BP’s source control efforts required a “best estimate” of flow rate for

internal modeling work, the company used not 5,000 but 70,000 BOPD. Early in the response,

BP hired Stress Engineering to perform computation fluid dynamics modeling (known as “CFD”)

in order to consider the potential for the “BOP on BOP” source control option. Ex. 25, Charles

Holt Deposition at 261:1-18. Stress Engineering needed a flow rate estimate to do the work, and

Stress Engineering Principal Christopher Matice stated that the computer runs would take 10-12

hours each. He added: “We should start with our best [flow rate] estimate.” Ex. 26, April 30,

2010 Email Exchange, Dep. Ex. 10518 (emphasis added). At that point, BP employee Richard

Simpson replied: “For the first run, use 70,000 bpd[.] For the second run, 35,000 bpd[.] Third run,

17,500 bpd.” Id. In that April 30, 2010 exchange, BP demonstrates that, when BP needed a flow

rate estimate for important work, the company used a much higher flow rate than it was reporting

to the public. As Mr. Lockett said in a May 17 email about Top Kill modeling, the 5,000 BOPD

number had “little if no origin. . . . From all the different ways we have looked at flowrate, [5,000

BOPD] would appear to err on the low side.” Ex. 27, May 17, 2010 Email, T. Lockett to T. Hill,

Dep. Ex. 8865.

IV. Procedural History

BP has previously settled charges related to its misleading statements to Congress and the

public. On October 3, 2013, BP settled a civil complaint filed by the SEC that alleged that BP’s

April 29, April 30, and May 4 SEC Form 6-K statements included material misrepresentations

and omissions. Securities and Exchange Commission v. BP p.l.c., Civil Action

No. 2:12-cv-02774 (E.D. La.), Dkt. No. 2-1. The United States filed a criminal case against BP

on November 15, 2012. United States v. BP Exploration and Production, Inc., Criminal Case

2:12-cr-00292-SSV-DEK (E.D. La.). Judge Vance accepted BP’s guilty plea on January 29,

2013.


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On January 30, 2013, the United States filed the instant motion to compel. Dkt. No.

8417. Transocean joined the motion. In its opposition, BP effectively conceded documents in

which Mr. Rainey played an active role and that related to the communications addressed in BP’s

guilty plea (called “Category A” documents) were subject to the crime-fraud exception. Dkt.

No. 8715 (“BP Opposition”) at 1-2. On April 4, 2013, the Magistrate Judge ordered that subset

of the documents to be produced. Dkt. No. 9115. As part of its response, BP also prepared

lists of the withheld documents that the company contends are “related” to each of the

Crime-Fraud Communications, which it provided to the Magistrate Judge and later to the Parties.

After ordering production of the Category A documents, the Magistrate Judge reviewed the

remaining documents on BP’s lists in camera, and issued a ruling on the motion on April 30,

2013. Dkt. No. 9592 (“Magistrate Judge Opinion”). The Magistrate Judge ordered BP to

produce 22 documents based on the application of the crime-fraud doctrine, and found another

84 documents remained privileged. Also in that ruling, the Magistrate Judge directed the

Parties to conduct further briefing on whether BP identified the entire universe of related

documents in the lists it provided to the Court. The United States and Transocean contend that

BP has vastly underreported the documents potentially responsive to the motion to compel. For

instance, BP failed to consider any documents in the custodial files of internal or outside counsel

– despite the fact that the very workstreams at issue were organized and directed by counsel.

The briefing on that issue will be complete on May 24, 2013, to be followed by a ruling from the

Magistrate Judge.

The United States’ motion to appeal addresses the Magistrate Judge’s decision applying

the crime-fraud doctrine to documents identified by BP. Whether BP identified the full

universe of documents related to the Crime-Fraud Communications is an issue still before the

Magistrate Judge.


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ARGUMENT

When a party seeks to involve its attorney in an ongoing or future crime or fraud, any

privilege is destroyed. For the crime-fraud exception to apply, the party challenging privilege

must show two things: evidence of a crime or fraud and that the underlying communications

relate to the illicit activity. The United States has made that showing here for all documents

reasonably related to preparation of the Crime-Fraud Communications, and all such documents

should be ordered produced.

The Magistrate Judge found that the United States had demonstrated a crime or fraud for

all Crime-Fraud Communications except those made to the SEC. However, she found that

many of the documents identified by BP as related to preparation of the Crime-Fraud

Communications did not qualify for the exception. In doing so, the Magistrate Judge made

three errors that merit reversal. First, all of the Crime-Fraud Communications involved BP

publically providing a flow rate estimate that bore little relation to the company’s best, internal

estimates. All of the Crime-Fraud Communications, including the SEC 6-K statements, should

qualify for application of the crime-fraud doctrine. Second, and even more important, the

Magistrate Judge used the wrong standard for determining whether a given document was

sufficiently related to the crime or fraud to qualify for the crime-fraud exception. Finally, she

applied the legal standard incorrectly at step two by focusing on Mr. Rainey’s involvement with

the documents, rather than how they were related to the Crime-Fraud Communications at issue.

Evaluated correctly, all documents related to the preparation of the Crime-Fraud

Communications should be produced, including all the documents identified by BP and others

yet to be identified.


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I. Applicable Legal Standards

A. Standard for Appeal of a Magistrate Judge Decision

The standard of review for this appeal is de novo. Rulings on non-dispositive motions

by magistrate judges are reviewed under a “clearly erroneous” or “contrary to law” standard.

28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). Under that standard, issues of law are

reviewed de novo and findings of fact under the clearly erroneous standard. Matter of Toyota of

Jefferson, Inc., 14 F.3d 1088, 1090 (5th Cir. 1994). Mixed questions of law and fact, including

the application of the law to the facts, are also reviewed de novo. Payne v. United States, 289

F.3d 377, 381 (5th Cir. 2002) (describing standard of review for appellate court reviewing

district court decision); Sandhu v. Bransom, 932 F. Supp. 822, 826 (N.D. Tex. 1996) (citing

Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986)) (describing standard of review for district

court reviewing magistrate decision).

The appeal involves questions of law and questions of the application of law to facts.

The standard of review for both is de novo.

B. Standard Applicable To The Crime-Fraud Exception

The crime-fraud exception is a “generally recognized exception” to the attorney-client

privilege. United States v. Zolin, 491 U.S. 554, 556 (1989).4 Once established, the

crime-fraud exception renders communications that otherwise were privileged subject to

disclosure – “the privilege takes flight if the relation is abused.” Clark v. United States, 289

U.S. 1, 15 (1933). As the Court noted in Zolin, “courts long have viewed [the attorney-client

privilege’s] central concern as one to encourage full and frank communication between attorneys

4Although generally referred to as an “exception” to attorney-client privilege and work product doctrine, the crime-fraud exception is not truly an “exception.” Instead, it is an exclusion of activity from the protective reach of the privilege given that the attorney-client privilege does not attach in the first instance if the legal services are sought for the purpose of committing or furthering a crime or a tort. See, e.g., Rambus, Inc. v. Infineon Technologies AG, 222 F.R.D. 280, 287 (E.D. Va. 2004). Nevertheless, because most cases use the term “crime-fraud exception,” we use that term here.


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and their clients and thereby promote broader public interests in the observance of law and

administration of justice.” 491 U.S. at 562 (internal quotes and citations omitted). This

rationale applies to clients making “full disclosure to their attorneys of past wrongdoings.” Id.

(emphasis added, internal quotes and citations omitted). However, the reason for the protection

of attorney-client communications “ceas[es] to operate at a certain point, namely, where the

desired advice refers not to prior wrongdoing, but to future wrongdoing.” Id. at 562-63

(emphasis added, internal quotes and citations omitted). Where the attorney-client privilege

communication relates to “future wrongdoing,” the privilege is destroyed. See, e.g., United

States v. Ballard, 779 F.2d 287, 292-293 (5th Cir. 1987) (“Once the party seeking disclosure

makes a prima facie case that the attorney-client relationship was used to promote an intended

criminal activity, the confidences within the relationship are no longer shielded.”).

Demonstrating that the crime-fraud doctrine applies to a particular communication

requires a two-step analysis. First, the party challenging privilege must make a prima facie

case “that the client intended to further an ongoing crime or fraud during the attorney-client

relationship.”5 In re Grand Jury Subpoena, 419 F.3d 329, 346 (5th Cir. 2005). Once that

showing is made, “the crime-fraud doctrine applies.” Id. The second element establishes

which communications must be produced as a result of the crime or fraud shown in the first step.

The communications captured by the crime-fraud exception are those that “hold some valid

relationship to the prima facie violation such that they reasonably relate to the fraudulent

activity.” Id. (internal citations and quotation marks omitted). To summarize the analysis, the

5 The communications need not facilitate a crime per se in order to be subject the crime-fraud exception. The exception applies to the facilitation of “wrongdoing” that is “not specifically criminal or fraudulent.” Deborah F. Buckman, Annotation, Crime-Fraud Exception Work Product Privilege in Federal Courts, 178 A.L.R. Fed. 87, § 2[a] (2002). The exception can include “crime, fraud, or other type of misconduct fundamentally inconsistent with the basic premises of the adversary system,” Coleman v. American Broadcasting Cos., 106 F.R.D. 201, 208 (D.D.C. 1985) (quoting In re Sealed Case, 676 F.2d 793, 812 (D.C. Cir. 1982)).


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first question is whether the crime-fraud doctrine applies at all. If it does, the second question

addresses what set of communications must be produced.

II. The Crime-Fraud Exception Is Triggered By BP’s Knowingly False Flow Rate Statements

The initial question is whether the United States has provided prima facie evidence that a

crime or fraud occurred. The Magistrate Judge found that the United States made a prima facie

case that the May 4, May 24, and June 25 communications to Congress were criminal or

fraudulent, along with the May 19 email to Admiral Landry.6 She found that the United States

did not make a prima facie case of crime or fraud for the SEC Form 6-K statements. Properly

considered, the evidence shows that each of the Crime-Fraud Communications, including the

SEC Form 6-K statements, was in fact a criminal or fraudulent misstatement satisfying the prima

facie requirement.

The prima facie evidence requirement is not an onerous one. In order to “make the

necessary prima facie showing for the application of the crime-fraud exception . . . , the

government must produce evidence such as will suffice until contradicted and overcome by other

evidence . . . a case which has proceeded upon sufficient proof to that stage where it will support

[a] finding if evidence to the contrary is disregarded.” Grand Jury Subpoena, 419 F.3d at

336-37 (upholding application of the crime-fraud exception where, based on “the government's

submitted affidavits and exhibits and the in camera examination of [attorney], the district court

found that the government had made a prima facie showing . . . .”).

This standard is easily met for most of the Crime-Fraud Communications. BP admitted

that it committed a crime in the May 24 and June 25 letters to Congress by making false

statements and omitting information. The May 19 email to Admiral Landry included some of

6 The Magistrate Judge did not explicitly rule that the prima facie case of crime or fraud was satisfied for the May 19 email, but her opinion proceeds as though it was. See Magistrate Judge Opinion at 38-39. The lack of a statement that the prima facie requirement was satisfied appears to be an oversight.


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the same false statements and omissions and provided them to the National Incident Command.

BP’s brief opposing the motion to compel essentially conceded that the United States satisfied

the prima facie requirement for showing the May 24 and June 25 letters to Congress and the May

19 email to Admiral Landry were criminal or fraudulent. BP Opposition at 1-2 (stating

willingness to produce some documents related to preparation of May 19 email and May 24 and

June 25 letters). The Magistrate Judge agreed that the United States met the prima facie

requirement for those documents. Magistrate Judge Opinion at 22, 31.

Turning to the communications for which BP challenged application of the crime-fraud

doctrine, the May 4 presentation to Congress and the SEC Form 6-Ks, BP’s own internal flow

rate communications demonstrate that it mislead Congress and the public by presenting numbers

flagrantly at odds with its best modeling. As described above, from the first days of the spill,

BP’s engineers were calculating that the flow rate could be as high as 100,000 BOPD. In BP’s

internal analyses, the 5,000 BOPD estimate was, at best, the very lowest point in a range of

potential values. As BP employee Mr. Lockett said at the time, the 5,000 BOPD number had

“little if no origin. . . . From all the different ways we have looked at flowrate, [5,000 BOPD]

would appear to err on the low side.” Ex. 27, May 17, 2010 Email, T. Lockett to T. Hill, Dep. Ex.

8865. But when BP spoke publically about flow rate, the company took its lowest estimate and

called it the company’s best estimate. The Magistrate Judge found that the United States had

proved the critical fact: “BP’s internal documents demonstrate that its flow rate estimates were

several times higher than 5,000 BOPD.” Magistrate Judge Opinion at 40.

The dichotomy between BP’s internal flow rate estimates and its public statements

satisfies the prima facie requirement of showing a crime or fraud. Just as BP pled guilty to

making false statements in and critical omissions from its letters to Congress, it made the same

false statements and omissions in its May 4 presentation and SEC Form 6-Ks. The Magistrate


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Judge found that the United States had made its prima facie case for the May 4 presentation, but

not the SEC Form 6-Ks. Magistrate Judge Opinion at 20, 41. In both cases, the United States

showed that BP’s actual knowledge of the flow rate was at odds with its public statements,

misleading Congress and the investing public in violation of law.7 In its opposition, BP failed

to provide any contrary evidence or explanation for the gulf between its public and internal

estimates. The Court should find that the prima facie requirement of a crime or fraud has been

satisfied for all the Crime-Fraud Communications.

III. All Documents Reasonably Related To Preparation of the Crime-Fraud Communications Should Be Produced

Once a prima facie showing is made, the question becomes what universe of documents

must be produced. On this point, the Parties agreed on the appropriate standard. Both BP and

the United States cited the 5th Circuit’s formulation:

[T]he proper scope of the crime-fraud exception must necessarily be limited to those attorney-client communications and work products reasonably related to the furtherance of the ongoing or future crime or fraud at issue.

Grand Jury Subpoena, 419 F.3d at 347 (emphasis added); see Dkt. No. 8417 at 17 (US Initial

Brief citing Grand Jury Subpoena); BP Opposition at 10 (same). However, the Magistrate

Judge erred by using a different standard for determining which documents were related.

A. The Documents Sought by the United States Meet the Standard

The second element of the crime-fraud inquiry takes the fact of a crime or fraud as a

given and establishes what materials must be produced as a result. As the Fifth Circuit has

explained, once the prima facie showing of crime or fraud is made, “the crime-fraud doctrine

applies.” Grand Jury Subpoena, 419 F.3d at 346. The remaining question is simply what

documents it applies to. A communication is related where there is “some valid relationship”

7 BP pled guilty to obstruction of Congress. Its misleading statements to the SEC could violate Sections 10(b) and 13(a) of the Securities Exchange Act of 1934 and Rules 10b-5, 12b-20, and 13a-6 thereunder. See 15 U.S.C. §§ 78j(b) & 78m(a); 17 C.F.R. §§ 240.10b-5, 240.12b-20, & 240.13a-16; see also Securities and Exchange Commission v. BP p.l.c., Civil Action No. 2:12-cv-02774 (E.D. La.), Complaint, Dkt. No. 1.


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between the crime or fraud and the material sought. In re International Systems & Controls

Corp. Securities Litigation., 693 F.2d 1235, 1242 (5th Cir. 1982) (quoted in Grand Jury Subpoena,

419 F.3d at 336 n.7). The Fifth Circuit makes clear that “the exact formulation of a test for

relatedness is less important than an understanding of what the [scope] test must accomplish;

easy differentiation between material for which the law should not furnish the protections of a

privilege and material for which a privilege should be respected.” Grand Jury Subpoena, 419

F.3d at 346-47 (internal citations and quotation marks omitted). The breadth of what qualifies

as related must also be considered in light of the alternative before the Fifth Circuit. In drawing

the line that there must be “some valid relationship” between the communication and the illicit

act, the Fifth Circuit was responding to the proposal that the entire privilege be destroyed. Id.

at 346.

The United States is not seeking a broad repudiation of BP’s attorney-client privilege.

Instead, we seek only documents related8 to the preparation of the Crime-Fraud

Communications. This is perfectly consistent with controlling Fifth Circuit precedent. The

court’s United States v. Dyer case involved the defendant’s conversations with two lawyers, and

a letter that the district court determined was criminal. 722 F.2d 174, 177-79 (5th Cir. 1983).

The Dyer court found that the criminal purpose of the letter meant that the communications with

the lawyer who helped draft that letter were not privileged, but the communications with a

separate lawyer who did not participate in the meeting concerning the criminal letter remained

privileged. Id. at 177. In describing Dyer, the Fifth Circuit has since explained that the

“events immediately surrounding the preparation of the letter at issue” fall within the

crime-fraud exception. Grand Jury Subpoena, 419 F.3d at 347 (emphasis added). That

8 The Magistrate Judge noted that the United States briefing often said “related” rather than “reasonably related.” Magistre Judge Opinion at 14 n.6. We did simply out of convenience. To the extent there is a substantive difference by including “reasonably,” we agree that “reasonably related” is the standard.


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description neatly captures the issue here: BP has numerous privileged communications, only

some of which related to the Crime-Fraud Communications. It is those documents

“immediately surrounding the preparation of the [communication] at issue” that the United States

seeks here.

For each of the Crime-Fraud Communications, BP deliberately made false statements and

omissions regarding flow rate. Each document that was part of the process of drafting and

discussing those Crime-Fraud Communications therefore is in furtherance of the crime or fraud,

because those documents were part of the process of preparing the final, fraudulent letter. Each

document related to the preparation of the Crime-Fraud Communications satisfies the Fifth

Circuit standard for production.

B. The Magistrate Judge Employed the Incorrect Standard

The Magistrate Judge erred at the second step of the crime-fraud analysis by adding a

new “intent” requirement, contrary to Fifth Circuit precedent and the Parties’ briefing. After

addressing whether the prima facie case of crime or fraud was made, the Magistrate Judge

conducted two additional inquiries for each document: (1) whether it was related to the violation;

and (2) whether there is “probable cause to believe that the particular communication with

counsel was intended in some way to facilitate or to conceal the criminal activity.” Magistrate

Judge Opinion at 21. In essence, the Magistrate Judge took the inquiry to be made at step 1,

and applied it to each document at step 2. This is incorrect as a matter of law.

First, as described above, the Magistrate Judge’s standard deviates significantly from

Grand Jury Supoena and its predecessors. The Magistrate Judge relied on the Second Circuit’s

Richard Roe case for the intent component of her standard. But Richard Roe appears to be

discussing the first step of the crime-fraud analysis: whether there was evidence of a crime or

fraud at all. As the court there explained, “the precise factual basis of the alleged crime or fraud


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is unclear.” 68 F.3d 38, 41 (2d Cir. 1995).9 The Fifth Circuit makes clear that a party need

only show that a crime or fraud was attempted – and not that each document demonstrated

independent intent to further the illicit act. Grand Jury Subpoena (2005), 419 F.3d at 346 (“in

addition to an initial showing that the client intended to further an ongoing or future crime or

fraud during the attorney-client representation, a secondary showing of some valid relationship

between the work product under subpoena and the prima facie violation” is required) (internal

quotation marks and citations omitted). As Magistrate Judge Knowles has explained, evidence

of the intent to deceive is part of the prima facie case. Southern Scrap Metal Co.. v. Fleming, No.

Civ.A. 01–2554, 2003 WL 21474479, at *2 (E.D.La. June 18, 2003). Once that showing is made,

the challenging party need only show that the communication “bears a relationship to the alleged

crime or fraud.” Id.

Applying the intent standard to each individual document also proves incompatible with

two fundamental aspects of crime-fraud case law. First, precedent establishes that attorneys

need not be aware of the crime or fraud for the doctrine to apply. See, e.g., In re Grand Jury

Proceedings, 680 F.2d 1026, 1028 (5th Cir. 1982) (“The crime or fraud exception applies even

where the attorney is completely unaware that his advice is sought in furtherance of such an

improper purpose.”); In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir. 1994) (“The test

is whether the client’s purpose is the furtherance of a future fraud or crime.”) (emphasis in

original, citations omitted). Second, case law shows that a judge need not perform an in

camera review before ordering production of documents. United States v. Kaplan, No. 02 CR.

883(DAB), 2003 WL 22880914, at *10 (S.D.N.Y. Dec. 5, 2003) (“Zolin and its progeny make

clear that in camera review is a discretionary alternative to establishing the crime-fraud 9 The Richard Roe case is very different from the facts of this matter, as a second appellate opinion makes clear. In Richard Roe, the government had alleged that the defense of the underlying lawsuit itself was fraudulent, the briefs were filed under seal and not even shared with the parties, and portions of the decision itself were redacted. 168 F.3d 69, 71 (2nd Cir. 1999). To the extent the opinion can be read more broadly to encompass the second step of the inquiry, Richard Roe would be in conflict with the controlling Fifth Circuit case law described in the text.


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exception with independent evidence.”). These principles are incompatible with the standard

employed by the Magistrate Judge here. The first principle means that documents may not

show a criminal intent because the author might not even know about the crime or fraud, but an

attorney’s innocence does not mean the document does not fall within the crime-fraud doctrine.

The second principle means that the document-by-document search for intent cannot be required

because no individual document review is required at all.

C. The Magistrate Judge Erred in Using Mr. Rainey’s Involvement to Determine whether Individual Documents Must Be Produced

In its brief to the Magistrate Judge, BP attempted to lay the blame for its false statements

and omissions entirely at the feet of Mr. Rainey. See, e.g., BP Opposition at 4-6. In an

apparent consequence of using the wrong standard for the second step of the crime-fraud

analysis, the Magistrate Judge relies on Mr. Rainey’s involvement in determining whether the

crime-fraud exception applies to individual documents. Some documents she orders produced

by saying, “With the active involvement of Rainey, these documents reasonably relate to the

furtherance of the ongoing crime or fraud at issue.” Magistrate Judge Opinion at 29. For

others, she upholds the privilege, saying “Rainey was not an active participant.” Id. at 30.

This reliance on Mr. Rainey’s involvement reflects two errors: use of the incorrect legal standard

and the misapplication of that standard to the facts.

First, relying on Mr. Rainey’s involvement to determine applicability of the exception

only makes sense using the Magistrate Judge’s incorrect standard for judging whether individual

documents should be produced. As described above, the issue for individual documents is

simply whether they are reasonably related to the illicit activity. Mr. Rainey’s involvement is

irrelevant to that question. In fact, BP’s own crime-fraud document logs answer the question

by describing each document on the list as being related to the preparation one of the

Crime-Fraud Communications.


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Ex. 2, BP Crime-Fraud Privilege Logs. Under the appropriate

legal test for the second step of the crime-fraud analysis, BP’s logs themselves demonstrate that

the documents are sufficiently related to be produced.

Second, Mr. Rainey’s involvement cannot serve as a proxy for criminal intent because

the evidence shows that Mr. Rainey is not the sole instrument of the obstruction. It was BP the

corporation that pled guilty to obstruction of justice, based largely on a letter signed by BP

attorney Kevin Bailey and a process that BP has maintained was managed and led by its lawyers.

BP admitted that the company “did corruptly, that is, with an improper purpose, endeavor to

influence, obstruct, and impede the due and proper exercise of the power of inquiry [into the

flow rate] through the following omissions and false and misleading statements in its May 24,

2010 [letter].” Ex. 12, BP Guilty Plea Agreement at 16-17. One of the express misstatements

BP admitted was “falsely suggest[ing]” that the 5,000 BOPD estimate was the “most

scientifically informed judgment” and that subsequent flow rate estimates had “yielded

consistent results.” Id. That statement was in the letter signed by Mr. Bailey, not the attached

Rainey Memo. Moreover, BP itself has explained that outside counsel from WilmerHale led

the process of responding to Congressional requests and that “the overall process was a

lawyer-directed effort.” Dkt. No. 7009 at 5.

CONCLUSION

BP made false statements and omissions to Congress, the National Incident Command,

the SEC, and the public regarding the flow rate from the well during the response. Now that BP

has pled guilty to the crime of obstruction of justice and produced the documents demonstrating

that its internal estimates were several times higher than its public statements, there can be no


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privilege for any documents reasonably related to the preparation of those Crime-Fraud

Communications.

The United States moved to compel production of all documents reasonably related to the

preparation of BP’s fraudulent statements and representations to United States government

officials, BP’s shareholders, and the public regarding the flow rate, specifically (1) fraudulent

communications to Congress on May 4, 2010 and fraudulent letters to Congressman Markey

dated May 24 and June 25, 2010; (2) a fraudulent statement to Federal On-Scene Coordinator

Admiral Mary Landry on May 19, 2010; and (3) fraudulent securities statements on April 29 and

30 and May 4, 2010. We respectfully request this Court reverse the Magistrate Judge’s April

30, 2013 opinion and find that (1) the prima facie showing of a crime or fraud has been made for

BP’s flow rate statements addressed in the motion and (2) that all documents reasonably related

to the preparation of those statements should be produced, including all documents identified by

BP so far and documents identified after the conclusion of the briefing on scope before the

Magistrate Judge.

Respectfully submitted,


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BRIAN HAUCK Deputy Assistant Attorney General Civil Division

PETER FROST Directory, Torts Branch, Civil Division Admiralty and Aviation STEPHEN G. FLYNN Assistant Director MICHELLE DELEMARRE SHARON SHUTLER JESSICA SULLIVAN JESSICA MCCLELLAN MALINDA LAWRENCE Trial Attorneys

/s/ R. Michael Underhill R. MICHAEL UNDERHILL, T.A. Attorney in Charge, West Coast Office Torts Branch, Civil Division U.S. Department of Justice 7-5395 Federal Bldg., Box 36028 450 Golden Gate Avenue San Francisco, CA 94102-3463 Telephone: 415-436-6648 Facsimile: 415-436-6632 E-mail: [email protected]

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division

SARAH HIMMELHOCH Senior Litigation Counsel NANCY FLICKINGER SCOTT CERNICH THOMAS BENSON Senior Attorneys DEANNA CHANG A. NATHANIEL CHAKERES JUDY HARVEY ABIGAIL ANDRE RACHEL HANKEY BETHANY ENGEL Trial Attorneys

/s/ Steven O’Rourke STEVEN O’ROURKE Senior Attorney Environmental Enforcement Section U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044 Telephone: 202-514-2779 Facsimile: 202-514-2583 E-mail: steve.o’[email protected]

DANA J. BOENTE United States Attorney Eastern District of Louisiana SHARON D. SMITH Assistant United States Attorney Eastern District of Louisiana 650 Poydras Street, Suite 1600 New Orleans, LA 70130 Telephone: (504) 680-3000 Facsimile: (504) 680-3184 E-mail: [email protected]

Attorneys for the UNITED STATES OF AMERICA


- 25 -

CERTIFICATE OF SERVICE

I hereby certify that the above and foregoing document 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.

Date: May 15, 2013. /s/ Steve O’Rourke U.S. Department of Justice


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

____________________________________ IN RE: OIL SPILL BY THE OIL § MDL No. 2179 RIG “DEEPWATER HORIZON” § IN THE GULF OF MEXICO, § SECTION: J ON APRIL 20, 2010 §

§ JUDGE BARBIER ___________________________________ § MAG. JUDGE SHUSHAN THIS DOCUMENT RELATES TO ALL CASES

ORDER ON THE UNITED STATES’ MOTION TO APPEAL DECISION OF THE MAGISTRATE JUDGE REGARDING CRIME-FRAUD MOTION TO COMPEL

Upon consideration of the briefs of the Parties concerning the United States’ Motion to

Appeal Decision of the Magistrate Judge Regarding Crime-Fraud Motion to Compel, and the

attachments thereto, this Court finds that the United States has demonstrated that the crime-fraud

exception applies, and the United States’ motion to compel should be granted in full. Therefore,

BP shall produce all documents on which it previously asserted privilege, regardless of whether

those documents were included on a privilege log, that relate to the development of (1) BP’s

statements to Congress on May 4, 2010, and BP’s correspondence with Congress on May 24,

2010 and June 25, 2010; (2) the May 19, 2010 email from Doug Suttles to Adm. Landry; and (3)

the Forms 6-K furnished to the SEC on April 29 and 30 and May 4, 2010 by BP p.l.c.

IT IS SO ORDERED this ________ day of _________, 2013, at New Orleans, Louisiana.

____________________________________ THE HONORABLE CARL J. BARBIER UNITED STATES DISTRICT JUDGE


Exhibit 1


655 Fifteenth Street, N.W. Washington, D.C. 20005

Robert R. Gasaway To Call Writer Directly:

(202) 879-5175 [email protected]

(202) 879-5000

www.kirkland.com

Facsimile: (202) 879-5200

Chicago Hong Kong London Los Angeles Munich New York Palo Alto San Francisco Shanghai

July 19, 2012

By Electronic Mail The Honorable Sally Shushan United States District Court Eastern District of Louisiana United States Courthouse 500 Poydras Street New Orleans, LA 70130

Re: MDL 2179 — United States Challenges to Schedule I Privilege Documents; Order Regarding In Camera Inspection of BP’s Claimed Privilege in Schedule I

Dear Judge Shushan:

On July 13, 2012, the Court ruled on the United States’, Halliburton’s, Transocean’s, and Louisiana’s challenges to BP’s assertion of attorney-client privilege and work product protection. (Dkt. No. 6904.)

As discussed on the recent calls of July 17 and July 19, there were several documents for which BP asserted attorney-client privilege and work-product protection, but the United States challenged only BP’s assertion of work product, and the Court did not address BP’s attorney-client claim. For example, for In Camera Submission No. 28, a document for which BP asserted attorney-client privilege, the Court stated that “BP does not argue that the document is protected by the attorney-client privilege.” (Dkt. No. 6904, at 27.) BP noted its attorney-client privilege assertion for No. 28 in an attachment BP submitted to the Court and the parties via Rob Gasaway’s email of June 26, 2012, at 11:42 pm CT (the “Attachments”).1 (See Ex. 1, Document Showing BP’s Claim of Attorney Client Privilege on No. 28, Included as Attachment to R.

1 BP noted all privileges claimed over each of the challenged documents in the three attachments it submitted to

the Court on June 27, 2012: BP Responses to US-LA AC Challenges (documents for which the United States and Louisiana had challenged attorney-client privilege); BP Responses to US-LA WP Challenges (documents for which the United States and Louisiana had challenged work product protection); and BP Responses to HESI-TO Challenges (documents for which Halliburton and Transocean had challenged attorney-client privilege or work product protection). BP’s attorney-client privilege and work product protection assertions are included here as Exhibit 1.

Case 2:10-md-02179-CJB-SS Document 7009 Filed 07/30/12 Page 1 of 10Case 2:10-md-02179-CJB-SS Document 10002-3 Filed 05/15/13 Page 2 of 11

The Honorable Sally Shushan July 19, 2012 Page 2

Gasaway’s Email on June 26, 2012). However, considering the large size of the parties’ submissions and attachments, the Court may not have noticed all the privilege assertions in this attachment, thus explaining the Court’s statement that “BP does not argue that the document is protected by the attorney-client privilege.” (Dkt. No. 6904, at 27.) On this basis, the Court ordered BP to produce No. 28, although the attorney-client privilege assertion had not been addressed.

Similarly, for a number of other documents for which BP asserted both attorney-client privilege and work-product protection, but the United States challenged only work product, the Court did not address the attorney-client privilege issue, and ordered that at least some2 of the documents be produced. The documents at issue are Nos. 26, 28, 30, 45, 46, 51, and 54. Citing Document No. 28, the United States asserts in its letter of July 18: “This appears to be an isolated issue related to this one document.” Respectfully, this is speculative. The fact that the Court did not state that BP did not assert a privilege claim does not mean that the Court considered such a claim. For each document, only the Court knows whether it considered (1) the challenges asserted by the U.S.; or (2) also all of BP’s privilege assertions, which were attached to Rob Gasaway’s email of June 26, 2012, at 11:42 pm CT (and are attached hereto as Exhibit 1).

Given the procedural history of the representative privilege challenges, there is a significant difference between the United States’ challenges to representative documents and BP’s assertions. The Court’s May 11, 2012 Order limited the United States to 50 representative challenge documents for attorney-client privilege, and 50 for work product production. (Dkt. No. 6510, at 4.) On June 16, 2012 the United States provided with its brief a list of 81 representative documents, and broke those documents into two non-overlapping lists — representative challenges to BP’s claims of attorney-client privilege and representative challenges to BP’s claims of work-product protection. (See Exhibit 2, Document Listing Representative Challenges by the United States.) The United States could have covered its bases by challenging both attorney-client privilege and work-product protection for each document—which would have limited the number of BP documents at issue to approximately 50—but the United States chose not to. Under the alternative strategy the United States adopted, it covered a significantly greater range of BP documents (81 instead of 50), but could not challenge both attorney-client privilege and work-product protection for each sample document, given the limits of the May 11, 2012 Order.

2 It is not always clear. Compare Order at 29 (“Document 51 is not protected from disclosure.”) with id.

(“Document 54 is not protected from disclosure by the work-product doctrine.”) and Order at 26 (“For the reasons discussed with Document 25, Document 46 is not protected as work-product.”).



On the parties’ July 18 call, the United States claimed for the first time that for each of the 81 representative documents, the United States on June 16 actually challenged all privileges asserted by BP, even where the United States expressly challenged only work product for a particular document. For example, Exhibit 2 shows that on June 16 the United States only expressly challenged BP’s work-product assertion for Doc. No. 28, although the United States now claims it was contemporaneously challenging attorney-client privilege for Doc. No. 28 and every other document on the list. BP disagrees with the United States’ position. If the United States on June 16 challenged attorney-client privilege even where it only expressly challenged work-product protection, this would have meant that the United States exceeded the Court’s Order by challenging attorney-client privilege for 81 representative documents, and by challenging work product for 81 representative documents. But the Court’s Order only permitted 50 representative challenges for work product, and 50 for attorney-client privilege. The United States should not be permitted to have more representative challenges than the Court’s Order allowed.

In any event, the United States indicated on the call this morning that it does challenge BP’s assertion of attorney-client privilege with respect to Doc. No. 28, and believes the balance of the documents should be produced. Assuming arguendo that the Court considers the submission of representative attorney-client challenges to these documents to be appropriate as part of the pre-extrapolation process, BP requests that the Court proceed to the merits of the claims and rule that documents 26, 28, 30, 45, 46, 51, and 54 are attorney-client privileged.3 (BP suggests that the United States be permitted to file a response on July 24, 2012, and that BP be permitted to reply on July 27.)

I. Documents for Which BP Claimed Attorney-Client Privilege But The U.S. Did Not Challenge Attorney-Client Privilege

A. Documents Relating to Congressional Responses

The following are documents relating to Congressional responses for which: (1) BP claimed attorney-client privilege and work-product protection (as set forth in one of BP’s Attachments submitted with Mr. Gasaway’s June 26 email, which is attached as Exhibit 1 hereto); (2) the United States challenged only work-product protection (Exhibit 2); and (3) the Court ruled only on the work-product challenge and did not address the claim of attorney-client privilege.

3 In that event, BP also requests that the Court rule that Document No. 11 is protected by the work-product doctrine.



• Document No. 30 – May 22, 2010 email from Jeffrey Morgheim to Trevor Hill. (Morgheim’s role as the primary person tasked to assist the lawyers working on congressional responses is discussed below.) The redacted portion of this document contains a request from Morgheim, which he again indicates is being made “at the direction of counsel for BP” as part of the process of gathering information relevant to the May 24 response to Congressman Markey. This communication is covered by the attorney-client privilege.

• Document No. 46 – May 22, 2010 email chain between Morgheim and Hill. The initial email in this chain is the same as Document No. 30. Following the request that Morgheim made on behalf of counsel in connection with the Markey response, Hill provided information for Morgheim to evaluate for potential use in constructing the response to Congressman Markey.

• Document No. 26 – Hard copy document from David Rainey’s custodial files. The redacted portion of this document is on the first page; it contains Rainey’s draft answer to Request No. 4 in Congressman Markey’s May 14 request. Rainey drafted this answer after Morgheim emailed him for assistance with the Markey response; in the email to Rainey, Morgheim explicitly stated that he was working “at the direction of counsel for BP.” Rainey sent his draft answers, prepared following the request from counsel transmitted by Morgheim, to Rainey, Kirkland & Ellis attorney Brian Kavanaugh, BP attorney Frank Monago, and BP employee Doug Suttles. Rainey’s draft answers were then forwarded to other attorneys working on the May 24 response to Congressman Markey.

• Document No. 45 – May 25, 2010 email chain. In the initial email in the chain, in connection with preparing a response to Congressman Cassidy, Morgheim wrote to Mike Mason, with a copy to Kirkland & Ellis attorney Mark Nomellini, with the subject line: “ATTORNEY-CLIENT PRIVELEDGE [sic] – Urgent: Congressional response” and a request “[o]n direction of counsel.” Mason then forwarded the request Morgheim made on behalf of BP’s counsel to Hill.

• Document No. 28 – June 22, 2010 email chain. A WilmerHale attorney, Tonya Robinson, emailed a draft letter regarding Representative Markey’s release of two pages related to worst-case discharge calculations that were attachments to BP’s May 24 response to Congressman Markey. Robinson sent the draft letter for comment to a BP attorney, Kevin Bailey, and three BP non-attorneys, Elizabeth Reicherts, Morgheim, and Kathleen Lucas, all of whom were involved in the process of preparing congressional responses. The email also copied two other



WilmerHale attorneys. The chain includes responses from Lucas and Bailey providing comments on the draft letter. In the final email, Morgheim forwarded the email chain and the draft response to another BP employee, Rainey, and requested that Rainey also review the letter. The drafting and review of a letter to Congress by and at the direction of counsel falls within the protections of the attorney-client privilege.

Below, in summary form, are key points regarding why Document Nos. 26, 28, 30, 45, and 46 are attorney-client privileged (assuming again that the Court does not adopt BP’s argument that the U.S. was limited to 50 representative challenges for attorney-client privilege):

• During the relevant period in which these documents were created, oil was still flowing from the damaged Macondo well. BP’s energies were focused primarily on efforts to cap the well and contain the spill. Engineers with relevant expertise, along with 40,000 other BP employees and personnel from the government and other companies in the oil industry, were working around-the-clock in that effort. At the same time, BP was receiving a steady stream of requests for information from members of Congress and other public officials. In May 2010 alone, BP received more than 70 requests from members or committees of Congress, and the Company was already facing dozens of lawsuits and many government investigations.

• BP retained several law firms, including WilmerHale and Kirkland & Ellis, shortly after the incident to assist in various respects with responding to these many lawsuits, investigations, and information requests. Congressional requests received by the company in this time period were handled through a process organized and directed by lawyers in which information was gathered from personnel within the company. Congressional responses were then drafted in a collaborative process led by WilmerHale and involving both in-house and external lawyers along with appropriate BP personnel. Although not every communication regarding the effort to collect information and to respond to requests involved the direct participation of an attorney, the overall process was a lawyer-directed effort seeking to ensure that BP received appropriate legal advice with respect to the requests and the company’s responses.

• Given the number and urgency of the requests BP received, lawyers at and for the company had to rely on non-attorney BP employees, who were familiar with BP’s operations and personnel, to facilitate the collection of potentially responsive information. Communications by and to these individuals as part of that process were made for the purpose of securing or providing legal advice and are covered by the



attorney-client privilege, just as they would be if made directly by or to an attorney.4 Most relevant to the documents discussed herein, Jeffrey Morgheim was the primary non-attorney who was tasked to work with counsel in connection with congressional responses. At the time, Morgheim was BP’s Director of Climate Change and had no independent reason to participate in the effort aside from his efforts to assist the attorneys coordinating these responses, including the May 24 letter to Congressman Markey that BP sent in response to a May 14 request from the Congressman.

• In his role as an agent of the attorneys, Morgheim contacted BP employees who may have had relevant information to respond to Markey’s May 14 request, including David Rainey and Trevor Hill. Rainey was at the time BP vice president for Gulf of Mexico Exploration and BP’s Deputy Incident Commander within the Unified Command, and Hill was heavily involved in efforts to address the spill; thus, Morgheim’s participation helped to ensure that responding to Congress did not interfere with BP’s primary mission of stopping the leak and containing the spill.

B. Document Nos. 51 and 54

The documents listed in Section A above relate to Congressional responses. There are two non-Congressional documents (Document Nos. 51 and 54) for which: (1) BP claimed attorney-client privilege and work product protection (see Exhibit 1); (2) the United States

4 See, e.g., United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961) (given the “complexities of modern

existence,” attorney-client privilege “‘must include all the persons who act as the attorney’s agents’”). See also, e.g., Gucci America, Inc., v. Guess?, Inc., 271 F.R.D. 58, 70-74 (S.D.N.Y. 2010) (discussing principles and collecting cases regarding roles of in-house counsel, outside counsel, and non-attorney agents for purposes of attorney-client privilege); id. at 71 (privilege applied where employee was “deputized to gather information from [client] employees to assist in the litigation”); Ferko v. National Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 134 (E.D. Tex. 2003) (when an attorney “‘direct[s] the client . . . to tell his story in the first instance to an [agent, in this case, an accountant] engaged by the lawyer . . . so that the lawyer may better give legal advice, communications by the client reasonably related to th[ose] purpose[s] ought to fall within the privilege.’” (quoting Kovel, 296 F.2d at 922 (certain alterations in original) (internal quotation and citation omitted)).

Even where a document or information is itself not privileged, BP is entitled to protect from disclosure the fact that a particular piece of information or document was shared with the attorney for the purpose of seeking legal advice or collected by one client-representative from another for the same reason. See, e.g., United States v. Hankins, 631 F.2d 360, 364-65 (5th Cir. 1980) (attorney-client privilege prevented disclosure of what documents client sent lawyer for examination, even where no privilege was claimed over the documents themselves).



challenged only work-product protection (see Exhibit 2); and (3) the Court ruled only on the work-product challenge and did not address the claim of attorney-client privilege.

• Document No. 51 - September 21, 2010 draft of a presentation by Doug Suttles to the National Commission. Document No. 51A is an email from a BP attorney, Stephen Palmer, circulating an earlier draft version of the presentation to attorneys from BP, WilmerHale, and Kirkland & Ellis. Mr. Palmer states: “I am attaching the draft written statement for Doug’s appearance before the Presidential Commission . . . .”

• Document No. 54 - BP sought approval from the Coast Guard for the Top Hat procedure and another option. Document No. 54 is a draft of the letter which was prepared by BP attorney Karen Westall. The Court ruled that “Document 54 is not protected from disclosure by the work-product doctrine.” (July 13 Order at 29.)

When BP employees were required to make official responses to the many inquiries from other government entities, such as the U.S. Coast Guard or the Presidential Commission, they sometimes sought legal advice from both BP attorneys and outside counsel. BP attorneys and outside counsel were intimately involved in drafting and revising such submissions. Such drafts, as in the case of Document Nos. 51 and 54, are covered by the attorney-client privilege under applicable law.5

II. Document For Which BP Claimed Work-Product Protection But the United States Did Not Challenge Work Product

The Court has ruled that the “Flow Rate Team” was an attorney-directed project that began on July 18, 2010, and that it was an “attorney-client privileged investigation” entitled to work product protection. (Dkt. No. 6904, at 14-24.) 5 See, e.g., July 13, 2012 Order, (Dkt. No. 6904), at 27 (“An attorney’s editorial changes to such documents”

intended for eventual public disclosure “should be privilege protected”); In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 802-803 (E.D. La. 2007) (noting that, in the context of responding to warning notices from a Government regulator, attorney-client privilege covers “(1) the attorney’s drafts of those responses, (2) communications in which the attorney sought information from corporate employees in her efforts to prepare those drafts, and (3) the responsive comments solicited from the corporate employees on the drafts. Following the trigger of the warning letter, every communication to and from the attorney and among corporate employees that were primarily in furtherance of legal assistance on that matter were considered privileged, even if the initial draft of the response was prepared for the lawyer by a non-lawyer.”) (emphasis added) (footnotes omitted).



The following is a document for which: (1) BP claimed attorney-client privilege and work product protection (see Exhibit 1); (2) the United States challenged only attorney-client privilege (see Exhibit 2); and (3) the Court ruled only on the attorney-client privilege challenge, but not on BP’s assertion of work product protection.

• Document No. 11 - Document No. 11A is an October 15, 2010, email from Tim Lockett to Kurt Mix, copying BP attorney Stephen Palmer, and BP non-attorneys Trevor Hill and Farah Saidi. Hill and Saidi were initial members of the privileged flow rate estimation team, and Lockett joined later. The email contains “[p]rivileged and confidential” in the subject line, and Lockett asked Mix for information about top kill mud for the flow rate work he was performing with Hill and Saidi. Document No. 11B includes a reply to 11A from Mix, indicating that Daryl Patterson and Bonsall Wilton may have relevant information. It demonstrates that a meeting between these individuals was scheduled for that day. Document No. 11 is an October 18-20, 2010, email string beginning with an email from Lockett to Mix, including Patterson and Wilton, and copying Saidi, Hill, and Palmer, concerning Top Kill mud. It references a previous discussion. It includes a specific request for information from Add Energy. On October 18, 2010, Mix emailed Ole B. Rygg of Add Energy (a third-party contractor for BP in the effort to control the well), highlighting Lockett’s specific request for information from Add Energy. On October 20, Rygg replied. BP asserted work product, but the U.S. did not challenge BP’s work product assertion, and the Court did not address BP’s work product assertion in its ruling.

Assuming arguendo that a work-product protection challenge to this document is properly included in the representative sample, the work-product assertion should be sustained:

• In not adopting BP’s attorney-client privilege assertion, the Court ruled that any privilege was waived because the document was shared with Add Energy, a third-party contractor to BP. (Dkt. No. 6904, at 22.) However, unlike the attorney-client privilege, the work product doctrine is not waived by virtue of a document being shared with a third party: “[M]ore than once, the Fifth Circuit has held that the mere voluntary disclosure of work-product to a third person is insufficient in itself to waive the work product privilege.” PBC Mgmt., Inc. v. Roberson, No. 10-798, 2010 WL 4553507, at *2 n.2 (E.D. La. Oct. 28, 2010) (citing In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994); Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989).



• Indeed, the Court found that the United States has not waived work product protection for certain communications with third-party members of the FRTG plume team (not all of whom, to BP’s knowledge, were then retained experts) and over which the United States claimed work-product protection. See, e.g., Dkt. No. 6905, at 2 (discussing NOA023-001598). The Court’s Order described NOA023-001598 as an email string “concerning a lawyer’s request for a category of information.” Similarly, Document No. 11 is a request for a category of information for use in preparation for litigation by Tim Lockett, an internal BP expert, who copies two attorneys. That request is then forwarded to a third-party contractor for BP.

* * *

For the foregoing reasons, we respectfully request that the Court find that BP does not have to produce representative documents 11, 26, 28, 30, 45, 46, 51, and 54.

We would be pleased to answer any questions the Court has about this letter at the Court’s convenience.

Sincerely,

Robert R. Gasaway

Exhibits cc (via electronic mail):

R. Michael Underhill Thomas A. Benson

Steven O’Rourke Joel M. Gross

Sarah D. Himmelhoch Allison B. Rumsey

Scott M. Cernich Don K. Haycraft

A. Nathaniel Chakeres Plaintiffs’ Liaison Counsel

Bethany Engel Defense Liaison Counsel ([email protected])




Exhibit 2to

UNITED STATES= MEMORANDUM IN SUPPORT OF ITS MOTIONTO APPEAL DECISION OF THE MAGISTRATE JUDGE REGARDING

CRIME-FRAUD MOTION TO COMPEL (Dkt. No. 9592)

[PENDING MOTION TO FILE UNDER SEAL]

The United States has moved to attach Exhibit 2 as a sealed appendix per Paragraph 8.B of MDLNo. 2179 Pre-Trial Order # 13 (Order Protecting Confidentiality), which mandates thatdocuments which have been designated as “Confidential” or “Highly Confidential” must be filedunder seal as an appendix to the instrument that refers to them.


Exhibit 3


PURSUANT TO CONFIDENTIALITY ORDERWorldwide Court Reporters, Inc.

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN RE: OIL SPILL ) MDL NO. 2179

BY THE OIL RIG )

"DEEPWATER HORIZON" IN ) SECTION "J"

THE GULF OF MEXICO, ON )

APRIL 20, 2010 ) JUDGE BARBIER

) MAG. JUDGE SHUSHAN

*****************

VOLUME 1

*****************

30(b)(6) Deposition of Robert Sanders,

BP, Inc., taken at the Pan-American Building, 601

Poydras Street, 11th Floor, New Orleans,

Louisiana, 70130, on the 5th day of November,

2012.



127

1 MR. BENTSEN: Objection, beyond the

2 scope of the designation.

3 MR. EPPEL: Objection, form.

4 A. I was not party to all of the particular

5 calculations of flow rate. From the relief well

6 perspective, we take a range of pump rates that

7 are calculated by other parties as our design

8 basis.

9 Q. (By Ms. Himmelhoch) So you -- BP, in

10 an -- analyzing the flow rate of hydrocarbons

11 from the MC252, relied on other parties?



14 scope.

15 A. I wasn't party to all of the type of

16 calculations that were done and by whom. I know

17 that there were calculations done by a variety of

18 entities for the flow -- for -- not for the flow

19 rate, but for the pump rate.

20 Q. (By Ms. Himmelhoch) In your over 30 years

21 of experience, is it your understanding that in

22 order to identify the pump rate, you need to

23 assume a flow rate from the well you are trying

24 to dym -- dynamically kill?




128

1 MR. BENTSEN: Objection, form.

2 Objection, beyond the scope.

3 A. It is one of the inputs, I believe.

4 Q. (By Ms. Himmelhoch) And where did the

5 input for the analysis for the relief well for

6 the MC252 -- let me start that question again.

7 That was horrible.

8 Did BP assume any particular flow rate in

9 conducting the analysis of how to perform the

10 dynamic kill using relief wells?



13 scope. The witness is not designated on bottom

14 kill.

15 A. Again, I was not party to all of the --

16 the interactions and calculations of bottomhole

17 flowing pressure or rates.

18 Q. (By Ms. Himmelhoch) Are you telling me

19 that BP did not do any analysis of the flow rate

20 of hydrocarbons from the MC252 Well when it was

21 designing the dynamic kill or the relief wells?



24 Objection, beyond the scope.

25 A. I'm not saying that. I'm saying I was



212

1 includes relief wells.

2 A. Again, the use that I believe I'm here to

3 represent is the dynamic kill, the rates that

4 were predicted, the pressures that were

5 predicted, how we executed the relief well, and

6 any potential dynamic kill that we would execute,

7 together with the cement isolation.

8 Q. I'm sorry. You believe you're here to

9 testify on beha -- on behalf of BP with respect

10 to the dynamic kill?

11 A. The --

12 MR. BENTSEN: Objection, scope.

13 He's not designated to talk about any kill

14 operations.

15 MR. WILLIAMS: I -- I'm just looking

16 at his answer to my last question.

17 MR. BENTSEN: I understand, but what

18 he's designated is what he's designated on.

19 Q. (By Mr. Williams) Okay. I think we all

20 agree you're designated to testify about relief

21 wells and Topic 12 with respect to relief wells.

22 So I'm taking that to be: Did BP use flow rates

23 in designing, analyzing, considering, or

24 executing relief wells?

25 A. Flow rates would have been a -- a



213

1 component of a dynamic kill calculation.

2 Q. Would flow rates have been a component in

3 any other way, of a relief well?

4 MR. EPPEL: Object to form.

5 MR. BENTSEN: Same objection.

6 A. Outside of the dynamic kill, I -- I

7 wouldn't -- wouldn't know, sir.

8 Q. (By Mr. Williams) So as BP's Corporate

9 Representative on Topic 12 with respect to the

10 relief wells, you're not aware of any analysis,

11 calculations, assumptions, or modeling of the

12 flow rate of hydrocarbons from the MC252 Well

13 undertaken by or on behalf of BP?

14 A. I don't have specific knowledge of all

15 the different methods and techniques used to

16 calculate flow rates. What I am aware of is what

17 I noted in the technical summary of rates to

18 dynamically kill the well, that would use flow

19 rate as one of its inputs.

20 Q. Just to be clear, and I apologize if I'm

21 belaboring a point: Was there any analysis of

22 flow rate conducted by or on behalf of BP in

23 connection with the analysis, consideration, or

24 execution of the relief wells?



Exhibit 4



384




BY THE OIL RIG )





*****************

VOLUME 2

*****************

Continuation of the 30(b)(6) Deposition

of Admiral Thad William Allen, United States of

America, taken at the Pan-American Building, 601

Poydras Street, 11th Floor, New Orleans,

Louisiana, 70130, on the 25th day of September,

2012.



514

1 MR. FROST: Object to form.

2 MR. BROCK: Form.

3 A. I -- I'm not sure should be my answer at

4 that.

5 Q. (By Mr. Li) Okay. On June 10th, you

6 announced that the Federal Government had --

7 well, strike that.

8 On June 10th, you announced that, as the

9 NIC, you had directed a Federal Scientific Group

10 to develop an estimate of how much oil was

11 flowing from BP's well, correct?

12 A. Correct.

13 Q. And as -- as we've already discussed,

14 this is the Flow Rate Technical Group?

15 A. Correct.

16 Q. And you said that developing an accurate

17 and scientifically grounded oil flow rate

18 information is vital, correct?


20 A. Correct.

21 Q. (By Mr. Li) You said it was vital both in

22 regards to the continued response and recovery,

23 correct?

24 A. Correct.

25 Q. And by "response," you meant source



515

1 control, well control, all of the various

2 responses that the -- that you would employ to

3 deal with the well, correct?


5 MR. BROCK: Objection compound.

6 MR. FROST: Compound.

7 A. Yeah. I would -- I would separate this

8 from well control and the response to the well.

9 Q. (By Mr. Li) "Response" is a very broad

10 word.

11 A. I --

12 Q. What did you mean by it?

13 A. I -- I said that, myself, earlier.

14 Q. Yeah. So what did you mean by it?

15 A. What I said earlier was, flow rate became

16 important in terms of trying to size the

17 equipment needed for the surface response in

18 terms of skimming equipment boom, in situ burning

19 equipment, and that sort of thing. And,

20 therefore, sooner or later, you had to reconcile

21 supply and demand with the amount of oil that was

22 out there versus the equipment that would be

23 needed to deal with it. In that -- that portion

24 of the response, flow rate is consequential.

25 Q. Okay. Was flow rate also consequential



516

1 for source control options that you might select?

2 A. As it relates to the pressure in the

3 well, and the various procedures associated with

4 capping containment, and so forth, and the

5 potential integrity of the wellbore itself, yes.

6 Q. Okay. It was also important to whether

7 various source control methods would -- strike

8 that.

9 Whether various well control methods

10 would succeed, correct?

11 MR. BROCK: Objection, form.


13 A. As I said earlier, it was -- it was

14 consequential, in that the different

15 interventions at the well had different affects

16 on the pressure inside the well, and, therefore,

17 the integrity of the wellbore.

18 Q. (By Mr. Li) Okay.

19 A. From that standpoint, yes.

20 Q. So I -- so it was important -- the flow

21 rate was important in determining whether certain

22 well control techniques would succeed, correct?

23 MR. BROCK: Objection, form.

24 A. Again, I'm not an Expert in well control.

25 I think there's a difference in flow rate and


Exhibit 5



1




BY THE OIL RIG )





*****************

VOLUME 1

*****************

Deposition of 30(b)(6)

DEPOSITION OF BP, BY AND THROUGH SIMON

BISHOP, taken at Pan-American Building,

601 Poydras Street, 11th Floor, New Orleans,

Louisiana, 70130, on the 27th day of

September, 2012.



230

1 Q. Okay. And you recall another

2 possible explanation was loss of integrity in

3 the wellbore?

4 A. Would be consistent with a lower

502:36 wellhead pressure, yes, sir.

6 Q. Okay. So it would be a good

7 idea to know whether that low wellhead

8 pressure was a result of a loss of integrity

9 or a high flow rate; is that fair?

1002:37 MR. ROMAN: Object to the form.

11 A. I personally agree that that

12 would be a very important condition.

13 Q. (BY MR. CHAKERES) Okay. Let us

14 look at -- before we go there, did you review

1502:37 in the -- and concede, no need to -- to

16 object on this basis -- that the actual

17 shut-in protocol for -- for shutting in the

18 well, did you -- did you review that

19 procedure? It's not within your 30(b)(6)

2002:37 topic. I'm -- I'm just asking if you've seen

21 it.

22 A. No, sir, I have not seen it.

23 Q. Okay. So you're not familiar

24 with the precise order of operations in

2502:37 shutting in the well?



242

1 here. I would need information -- more

2 information to make a proper comment on this,

3 sir.

4 Q. (BY MR. CHAKERES) Well, there

502:58 is the -- the phrase "Estimates of flowrate

6 will be made"; is there not?

7 A. There is, sir.

8 Q. Okay. Is one possible read of

9 this phrase that estimates of flow rate will

1002:58 be made?

11 MR. ROMAN: Object to the form, also

12 beyond the scope.

13 A. It certainly states here

14 estimates of flow rate so you're correct.

1502:58 Q. (BY MR. CHAKERES) Okay. And I

16 think we just stated before that if there is

17 going to be a low shut-in pressure observed

18 when the well was shut-in, that knowing what

19 the flow rate was would be helpful in

2002:58 differentiating whether a low shut-in

21 pressure was a result of high flow rate or

22 well integrity failure?

23 MR. ROMAN: Same objections.

24 A. Yes, sir.

2502:58 Q. (BY MR. CHAKERES) Okay. And so



243

1 it would make sense to estimate flow rate at

2 the time of shut-in to potentially rule out

3 or -- or provide notice of well integrity

4 problems?

502:59 MR. ROMAN: Same objections.

6 Q. (BY MR. CHAKERES) Right?

7 A. So if it would be possible to

8 measure flow rate, that, obviously, would be

9 a very valuable piece of information.

1002:59 Q. Okay. Do you have an opinion

11 about whether it was possible to measure flow

12 rate once the capping stack was installed?

13 MR. ROMAN: Object to the form;

14 objection, way beyond the scope.

1502:59 A. Sir, this is not something that

16 I -- I undertake in my -- my personal

17 discipline; therefore, I would find it very

18 difficult to comment on that to my

19 satisfaction.

2002:59 Q. (BY MR. CHAKERES) I don't know

21 if that quite -- my question -- my question

22 is do you know if it was possible to -- to

23 calculate flow rate when the capping stack

24 was -- was put on?

2502:59 MR. ROMAN: Same -- same objections.



346




BY THE OIL RIG )





*****************

VOLUME 2

*****************


DEPOSITION OF BP, BY AND THROUGH SIMON

BISHOP, taken at Pan-American Building,



September, 2012.



486

1 you're far away from zero, how would you know

2 how long to extend the line?

3 Did I read that correctly?

4 A. Yes, sir, you did.

511:54 Q. And does this just reflect the

6 fact that had BP known the flow rate at that

7 point, it would have been a useful data point

8 in interpreting shut-in top hole pressure?

9 MR. ROMAN: Object; form and scope.

1011:54 A. Yes, sir.

11 Q. (BY MR. CHAKERES) Okay. And

12 I'd like to now go to Tab 112, which I think

13 you have in the other binder. And do you

14 have in front of you an e-mail -- the top

1511:55 e-mail from Mr. Merrill to Kelly McAughan and

16 others dated July 20th, 2010?

17 A. Yes, sir, I do.

18 Q. Okay. We're going to go ahead

19 and mark this as Exhibit 9340. And first

2011:55 ask, do you recall reviewing this e-mail in

21 preparation for your deposition?

22 A. May I just read it, sir, please?

23 Q. Go ahead.

24 A. Sorry, I don't recall seeing

2511:56 this specific e-mail before, but the -- I've



488


2 A. Yes, sir, you did.

3 Q. And does this reflect that had

4 BP known the flow rate at that point in time,

511:57 it would inform its ability to interpret the

6 pressure response of the reservoir after

7 shut-in?

8 MR. ROMAN: Objection; form and scope.

9 A. Sir, in the pressure transient

1011:57 analysis that's being referenced here, then

11 the -- an input for that pressure transient

12 analysis is rated in order to be able to

13 determine reservoir properties, sir.

14 Q. (BY MR. CHAKERES) And it would

1511:58 be -- it would be beneficial if BP had as

16 much confidence as possible in that input; is

17 that correct?


19 A. Sir, if a -- if a rate were

2011:58 available, that would allow pressure

21 transient analysis that is -- with that rate

22 as an input to provide information about the

23 reservoir.

24 Q. (BY MR. CHAKERES) And

2511:58 understanding more precisely the actual rate



489

1 of flow would likely lead to a better

2 pressure transient analysis than having to

3 assume a range of rates; is that fair?


511:58 A. As a -- as an input, the more

6 accurate the input, clearly the more accurate

7 the output. So, yes, I agree.

8 Q. (BY MR. CHAKERES) Okay, thank

9 you.

1011:58 I'd like now if you could go

11 with me to Tab 87. And we did mark that

12 document as an exhibit? Yes.

13 Do you have in front of you an

14 e-mail from Kate Baker to Roberta Wilson,

1511:59 Trevor Hill, and Paul Tooms, dated July 4,

16 2010?

17 A. Yes, sir, I do.

18 Q. Okay. We'll go ahead and mark

19 that as document -- as Exhibit No. 9341. And

2011:59 I'll go ahead and ask if you're familiar with

21 this e-mail chain.

22 A. Again, if I may read it, please,

23 sir.

24 I've read it, sir, thank you.

2512:01 Q. And are you familiar with this


Exhibit 6



1




BY THE OIL RIG )





*******************

VOLUME 1

******************

Deposition of TREVOR J. HILL, taken at

Kirkland & Ellis International, 30 St. Mary Axe,

22nd Floor, London EC3A 8AF, England, United

Kingdom, on the 14th of January, 2013.



293

1 Q. (BY MR. CERNICH) Even though the E-mail

2 references flow rate estimation work?

3 MS. KARIS: Object to the form.

4 A. Yeah. I believe that title originated

5 with the E-mails before I was on the circulation

6 list.

7 Q. (BY MR. CERNICH) Okay. But -- but --

8 again, you never told anyone -- you never told

9 Mr. Leonard that you were not engaged in flow rate

10 estimation work; is that right?

11 MS. KARIS: Object to the form.

12 A. As a direct statement, no.

13 Q. (BY MR. CERNICH) You would -- you would

14 acknowledge that the influence of flow rate in the

15 assessment of the likely overall or -- I'm sorry.

16 Let me start that again. Strike that.

17 You would acknowledge the influence

18 of flow rate in the assessment of the likely

19 overall effectiveness of source control methods,

20 right?

21 MS. KARIS: Object to form.

22 A. Yes. Yes.

23 Q. (BY MR. CERNICH) Okay. And so flow rate

24 was relevant to -- to source control?

25 A. Flow rate was relevant to source control.



294

1 Q. Throughout the -- throughout the response?

2 A. That's correct.

3 Q. And it was also relevant at the time of a

4 well integrity test, correct?

5 A. At the -- yes. At the time of the test,

6 it was relevant.

7 Q. Okay. Because having an idea of -- of the

8 flow rate would provide you with a better

9 opportunity to -- to characterize the -- the

10 reservoir and the depletion from the reservoir; is

11 that right?

12 A. It -- it's a contributing factor, yes.

13 Q. Okay. And depletion of the reservoir was

14 a -- was a critical issue during the well

15 integrity test, correct?

16 MS. AVERGUN: Objection to form.

17 A. It's outside of my direct subject area, so

18 I -- to use the word "critical," I don't know that

19 it was a factor.

20 Q. (BY MR. CERNICH) Okay. Because in order

21 to try to determine whether the -- the shut-in

22 wellhead pressure reflected a -- an integral well,

23 you -- you -- you needed to characterize the --

24 the depletion of the -- the reservoir. So, in

25 other words, if the reservoir had depleted


Exhibit 7


Table of Contents

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 6-K

Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934

for the period ended 31 March 2010 Commission File Number 1-06262

BP p.l.c. (Translation of registrant’s name into English)

1 ST JAMES’S SQUARE, LONDON, SW1Y 4PD, ENGLAND (Address of principal executive offices)

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

Form 20-F þ Form 40-F o

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):

Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.

Yes o No þ

If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-

THIS REPORT ON FORM 6-K SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THE PROSPECTUS INCLUDED IN THE REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-157906) OF BP CAPITAL MARKETS p.l.c. AND BP p.l.c.; THE PROSPECTUS INCLUDED IN THE REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-155798) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-79399) OF BP p.l.c.,THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-67206) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-103924) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-102583) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-123482) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-123483) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-131583) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-131584) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-132619) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-146868) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-146870) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-146873) OF BP p.l.c., THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-149778) OF BP p.l.c., AND TO BE A PART THEREOF FROM THE DATE ON WHICH THIS REPORT IS FURNISHED, TO THE EXTENT NOT SUPERSEDED BY DOCUMENTS OR REPORTS SUBSEQUENTLY FILED OR FURNISHED.

Case 2:10-md-02179-CJB-SS Document 8715-1 Filed 02/28/13 Page 59 of 167Case 2:10-md-02179-CJB-SS Document 10002-9 Filed 05/15/13 Page 2 of 30

BP p.l.c. AND SUBSIDIARIES FORM 6-K FOR THE PERIOD ENDED 31 MARCH 2010(a)

2

Page

1. Management’s Discussion and Analysis of Financial Condition and Results of Operations for the period January-March 2010(b)

3-10, 17-19

2. Consolidated Financial Statements including Notes to Consolidated Financial Statements for the period January-March 2010 11-16, 20-24

3. Signatures 25

4. Exhibit 99.1: Computation of Ratio of Earnings to Fixed Charges 26 Exhibit 99.2: Capitalization and Indebtedness 27

(a) In this Form 6-K, references to the first quarter 2010 and first quarter 2009 refer to the three-month periods ended 31 March 2010 and 31 March 2009 respectively.

(b)

This discussion should be read in conjunction with the consolidated financial statements and related notes provided elsewhere in this Form 6-K and with the information, including the consolidated financial statements and related notes, in BP’s Annual Report on Form 20-F for the year ended 31 December 2009.

EX-99.1 EX-99.2


Table of Contents

BP p.l.c. Group results First quarter 2010

London 29 April 2010 First quarter 2010 vs 2010 2009 2009

$ million Profit for the period(a) 6,079 2,562 137%

Inventory holding (gains) losses, net of tax (481) (175 ) Replacement cost profit(b) 5,598 2,387 135%

— Profit per ordinary share (cents) 32.39 13.69 137%

— Profit per ADS (dollars) 1.94 0.82 — Replacement cost profit per ordinary share (cents) 29.82 12.75 134%

— Replacement cost profit per ADS (dollars) 1.79 0.77

• BP’s first-quarter replacement cost profit was $5,598 million, compared with $2,387 million a year ago, an increase of 135%. Replacement cost profit for the group is a non-GAAP measure. For further information see pages 4 and 16. BP’s profit for the first quarter was $6,079 million, compared with $2,562 million a year ago.

• Non-operating items and fair value accounting effects for the first quarter had a net $49 million unfavourable impact compared with a net $194 million unfavourable impact in the first quarter of 2009. Information on fair value accounting effects is non-GAAP and further details are provided on page 18.

• Finance costs and net finance income or expense relating to pensions and other post-retirement benefits were $228 million for the first quarter, compared with $368 million for the same period last year.

• The effective tax rate on replacement cost profit for the first quarter was 34%, compared with 37.5% a year ago. The effective tax rate on profit for the first quarter was 34%, compared with 37.1% a year ago.

• Net cash provided by operating activities for the first quarter was $7.7 billion, compared with $5.6 billion a year ago.

• Net debt at the end of the first quarter was $25.2 billion. The ratio of net debt to net debt plus equity was 19% compared with 23% a year ago. Net debt information is non-GAAP and is defined on page 5. Gross finance debt at the end of the quarter was $32.2 billion compared to $34.7 billion a year ago. The ratio of gross debt to gross debt plus equity was 23%, compared with 28% a year ago.

• Total capital expenditure, including acquisitions and asset exchanges, for the first quarter was $4.7 billion. Organic capital expenditure(c) in the first quarter was $3.8 billion. Disposal proceeds were $0.1 billion for the first quarter. For 2010 as a whole, we continue to expect organic capital expenditure of around $20 billion and disposal proceeds of $2-3 billion.

• The quarterly dividend, to be paid on 21 June 2010, is 14 cents per share ($0.84 per ADS), the same as a year ago. The corresponding amount in sterling will be announced on 8 June 2010. A scrip dividend alternative is available, allowing shareholders to elect to receive their dividend in the form of new ordinary shares and ADS holders in the form of new ADSs. Details of the scrip dividend programme are available at www.bp.com/scrip.

(a) Profit attributable to BP shareholders.

(b) Replacement cost profit reflects the replacement cost of supplies and is the measure of profit or loss for each operating segment that is required to be disclosed under International Financial Reporting Standards, as explained in more detail on page 16. The replacement cost profit for the period is arrived at by excluding from profit inventory holding gains and losses and their associated tax effect. Replacement cost profit for the group is not a recognized GAAP measure.

Management believes this information is useful to illustrate to investors the fact that crude oil and product prices can vary significantly from period to period and that the impact on our reported result under IFRS can be significant. Inventory holding gains and losses vary from period to period due principally to changes in oil prices as well as changes to underlying inventory levels. In order for investors to understand the operating performance of the group excluding the impact of oil price changes on the replacement of inventories, and to make comparisons of operating performance between reporting periods, BP’s management believes it is helpful to disclose this information.

(c) Organic capital expenditure excludes acquisitions and asset exchanges and the accounting for our transaction with Value Creation Inc. (see page 15).


The commentaries above and following should be read in conjunction with the cautionary statement on page 10.

3


Table of Contents

Analysis of replacement cost profit before interest and tax and reconciliation to profit for the period

Total of non-operating items and fair value accounting effects(a)(b)

4

First quarter 2010 2009

$ million Exploration and Production 8,292 4,320

Refining and Marketing 729 1,090 Other businesses and corporate (328) (761 )

Consolidation adjustment 208 (405 )RC profit before interest and tax(a) 8,901 4,244

Finance costs and net finance income or expense relating to pensions and other post-retirement benefits (228) (368 )

Taxation on a replacement cost basis (2,966) (1,454 )Minority interest (109) (35 )

Replacement cost profit attributable to BP shareholders 5,598 2,387

Inventory holding gains (losses) 705 254 Taxation (charge) credit on inventory holding gains and losses (224) (79 )

Profit for the period attributable to BP shareholders 6,079 2,562

(a) Replacement cost profit reflects the replacement cost of supplies. Replacement cost profit for the group is a non-GAAP measure. For further information see page 16.


$ million Exploration and Production 104 469

Refining and Marketing (60) (459 )Other businesses and corporate (118) (321 )

(74) (311 )Taxation credit (charge)(c) 25 117

(49) (194 )

(a) An analysis of non-operating items by type is provided on page 17 and an analysis by region is shown on pages 7, 9 and 10.

(b) Information on fair value accounting effects is non-GAAP. For further details, see page 18.

(c) Tax is calculated using the quarter’s effective tax rate on replacement cost profit.


Table of Contents

Per share amounts

Net debt ratio — net debt: net debt + equity

Net debt and net debt ratio are non-GAAP measures. Net debt includes the fair value of associated derivative financial instruments that are used to hedge foreign exchange and interest rate risks relating to finance debt, for which hedge accounting is claimed. The derivatives are reported on the balance sheet within the headings ‘Derivative financial instruments’. We believe that net debt and net debt ratio provide useful information to investors. Net debt enables investors to see the economic effect of gross debt, related hedges and cash and cash equivalents in total. The net debt ratio enables investors to see how significant net debt is relative to equity from shareholders.

Dividends

Dividends Payable

BP has announced a dividend of 14 cents per ordinary share to be paid in June. The corresponding amount in sterling will be announced on 8 June 2010, and calculated from the average of the market exchange rates for the four dealing days commencing on 2 June 2010. Holders of American Depositary Shares (ADSs) will receive $0.84 per ADS. The dividend is payable on 21 June 2010 to shareholders and ADS holders on the register on 7 May 2010. A scrip dividend alternative is available, allowing shareholders to elect to receive their dividend in the form of new ordinary shares and ADS holders in the form of new ADSs. Details of the scrip dividend programme including the first quarter interim dividend and timetable are available at www.bp.com/scrip.

5


Per ordinary share (cents)(a) Profit for the period 32.39 13.69

RC profit for the period 29.82 12.75

Per ADS (dollars)(a) Profit for the period 1.94 0.82

RC profit for the period 1.79 0.77

(a) See Note 4 on page 22 for details of the calculation of earnings per share.


$ million Gross debt 32,153 34,698

Less: fair value asset (liability) of hedges related to finance debt 152 (323) 32,001 35,021

Cash and cash equivalents 6,841 8,360 Net debt 25,160 26,661 Equity 104,978 91,179

Net debt ratio 19% 23%

First quarter

Dividends Paid 2010 2009

Dividends paid per ordinary share cents 14.000 14.000 pence 8.679 9.818

Dividends paid per ADS (cents) 84.00 84.00


Table of Contents

Exploration and Production

The replacement cost profit before interest and tax for the first quarter was $8,292 million, an increase of 92% compared with the first quarter of 2009. This increase was primarily due to higher realizations and higher earnings from equity-accounted entities (mainly TNK-BP), partly offset by a lower contribution from the gas marketing and trading business, higher production taxes and higher depreciation. Unit production costs were 3% lower than a year ago after adjusting for restructuring costs, and were 3% higher than a year ago including restructuring costs. Unit production costs after adjusting for restructuring costs is a non-GAAP measure – see page 19 for details.

The net non-operating gain of $41 million in the first quarter primarily relates to fair value gains on embedded derivatives, partly offset by restructuring costs. The corresponding quarter in 2009 included a net non-operating gain of $311 million. Additionally, in the first quarter, fair value accounting effects had a favourable impact of $63 million compared with a favourable impact of $158 million a year ago.

Production for the quarter was 4,010mboe/d, broadly flat with the first quarter of 2009 reflecting continued strong operational performance. After adjusting for entitlement impacts in our production-sharing agreements (PSAs) production was 1% higher. As previously indicated, we expect production in 2010 to be slightly lower than in 2009. The actual outcome will depend on a number of factors including the oil price and its impact on PSAs and OPEC quota restrictions. In the second quarter, we expect a normal seasonal turnaround effect of around 100mboe/d. These turnaround activities are planned for some of our higher-margin areas including the North Sea and the Gulf of Mexico, where activity is currently under way at Thunder Horse. This will impact costs and margins as well as volumes.

Two major projects started up during the first quarter. In the ultra-deepwater Gulf of Mexico, first oil was achieved from the Great White field (BP 33.3%). In Canada, the Noel major project commenced exporting and selling gas.

During the quarter, we announced that BP will pay Devon Energy $7.0 billion for assets in Brazil, Azerbaijan and the US deepwater Gulf of Mexico. These include ten exploration blocks in Brazil; a major portfolio of deepwater exploration acreage and prospects in the US Gulf of Mexico; and an interest in the ACG development in the Caspian Sea. Completion of certain of these transfers is subject to regulatory approvals and other third-party consents. In addition, BP will sell to Devon Energy a 50% stake in our Kirby oil sands interests in Alberta, Canada, for $500 million. The parties have agreed to form a 50:50 joint venture, operated by Devon, to pursue the development of Kirby. Devon will commit to fund an additional $150 million of capital costs on BP’s behalf.

Also during the quarter, BP and Value Creation Inc. (VCI) of Calgary agreed to form a partnership to explore and develop the Terre de Grace oil sands acreage, in the Athabasca region of Alberta, Canada, using in-situ techniques. BP will hold a 75% interest and VCI a 25% interest in a newly formed partnership. BP has agreed to pay $900 million for the interest with $500 million paid in cash at closing.

Furthermore, on behalf of our partners, BP announced the first major contracts to support the expansion of production from the Rumaila field in southern Iraq (BP has a 38% working interest).

After the end of the quarter, BP agreed with Total to acquire its 15.7% interest in Valhall and its 25% interest in Hod, both fields located in the southern part of the Norwegian continental shelf, for the sum of $991 million to be paid in cash. The agreement will deepen BP’s position as operator by giving BP a 43.8% interest in Valhall and 50% in Hod, subject to third-party consents and government approval. The deal has an effective date of 1 January 2010.

On 20 April 2010, the semi-submersible drilling rig Deepwater Horizon owned and operated by Transocean Limited caught fire in the US Gulf of Mexico and subsequently sank. The rig was drilling an exploration well (Mississippi Canyon 252) in which BP has a 65% interest. As operator under the MC 252 lease, BP is committed to doing everything in its power to contain the environmental consequences of the incident. BP is currently ramping up preparations for a major cleaning effort on the shorelines of Louisiana, Mississippi, Alabama and Florida. Efforts continue to stem the flow of oil from the well, currently estimated at up to 5,000 barrels a day. Preliminary estimates indicate that current efforts to contain the spill and secure the well are costing the MC 252 owners about $6 million per day. This figure is expected to rise as activity increases. It is too early to quantify other potential costs and liabilities associated with the incident.

6


$ million Profit before interest and tax(a) 8,316 4,286 Inventory holding (gains) losses (24) 34

Replacement cost profit before interest and tax(b) 8,292 4,320

By region US 2,762 1,143

Non-US 5,530 3,177 8,292 4,320

(a) Includes profit after interest and tax of equity-accounted entities.

(b) See page 16 for information on replacement cost reporting for operating segments.


Table of Contents

Exploration and Production

Because of rounding, some totals may not agree exactly with the sum of their component parts.

7


$ million Non-operating items

US (62) 71 Non-US 103 240

41 311

Fair value accounting effects(a) US 81 208

Non-US (18) (50 ) 63 158

Exploration expense US 69 44

Non-US 51 75 120 119

Production (net of royalties)(b) Liquids (mb/d) (net of royalties)(c)

US 665 643 Europe 215 212 Russia 849 822

Rest of World 798 827 2,527 2,504

Of which equity-accounted entities 1,132 1,116 Natural gas (mmcf/d) (net of royalties)

US 2,221 2,335 Europe 599 838 Russia 673 642

Rest of World 5,107 4,952 8,600 8,767

Of which equity-accounted entities 1,093 1,072 Total hydrocarbons (mboe/d)(d)

US 1,048 1,046 Europe 318 357 Russia 965 933

Rest of World 1,679 1,680 4,010 4,016

Of which equity-accounted entities 1,320 1,301 Average realizations(e)

Total liquids ($/bbl) 71.86 41.26 Natural gas ($/mcf) 4.26 3.63

Total hydrocarbons ($/boe) 49.16 31.40

(a) These effects represent the favourable (unfavourable) impact relative to management’s measure of performance. Further information on fair value accounting effects is provided on page 18.

(b) Includes BP’s share of production of equity-accounted entities.

(c) Crude oil and natural gas liquids.

(d) Natural gas is converted to oil equivalent at 5.8 billion cubic feet = 1 million barrels.

(e) Based on sales of consolidated subsidiaries only — this excludes equity-accounted entities.


Table of Contents

Refining and Marketing

The replacement cost profit before interest and tax for the first quarter was $729 million, compared with $1,090 million for the same period last year.

The first quarter’s result included a net non-operating charge of $70 million compared with a net charge of $350 million a year ago. Fair value accounting effects had a favourable impact of $10 million in the first quarter compared with an unfavourable impact of $109 million in the first quarter of 2009.

Compared with a year ago, the result reflected a significantly weaker supply and trading contribution in contrast to the particularly strong contribution in the first quarter of last year. The result was also impacted by a weaker refining environment, with the indicator margin at around half the level of the same period in 2009, and marketing margins for some products compressed by rising crude prices. These factors were partially offset by operational improvements and further cost efficiencies in the fuels value chains, and continued strong performance in the international businesses. In addition, BP’s actual refining margins fell by less than the indicator would suggest as a result of BP’s highly upgraded refining portfolio.

In the fuels value chains, Solomon refining availability was up by three percentage points year on year to 95.3%, the highest level since 2004. Refining throughput increased by over 8% compared with the same quarter last year and by over 5% compared with the previous quarter, principally driven by increased throughputs in our US refineries.

In the international businesses, our petrochemicals business had a particularly strong quarter with production volumes up almost 40% compared with the same period last year and 12% on the previous quarter.

In February, BP announced that it had received an offer from Delek Europe B.V. for the retail fuels and convenience business and selected fuels terminals in France. As a result, BP has agreed a period of exclusivity with Delek Europe B.V. to negotiate the terms for the sale and to allow consultation with the relevant works councils. Any transaction will be subject to regulatory approval and is expected to include a BP brand licence agreement.

In March, BP announced that in sub-Saharan Africa it intends to sell its marketing businesses in Namibia, Malawi, Tanzania, Zambia and Botswana and focus its fuel marketing activities on South Africa and Mozambique.

There has been some improvement in refining margins in the early part of the second quarter although we expect opportunities for further improvement to be limited. BP’s refinery turnaround activities are expected to be higher in the second quarter than in the first. Continued low market volatility would limit the supply and trading contribution in the quarter. In the international businesses, we expect the current petrochemicals margins to come under some pressure as new capacity comes onstream.

8


$ million Profit before interest and tax(a) 1,408 1,417 Inventory holding (gains) losses (679) (327 )

Replacement cost profit before interest and tax(b) 729 1,090

By region US (63) 308

Non-US 792 782 729 1,090




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Refining and Marketing

9


$ million Non-operating items

US (3) (134 )Non-US (67) (216 )

(70) (350 )

Fair value accounting effects(a) US 16 65

Non-US (6) (174 ) 10 (109 )

Refinery throughputs (mb/d) US 1,366 1,164

Europe 780 783 Rest of World 282 299

Total throughput 2,428 2,246 Refining availability (%)(b) 95.3 92.3

Sales volumes (mb/d)(c)

Marketing sales by region US 1,418 1,402

Europe 1,428 1,529 Rest of World 629 617

Total marketing sales 3,475 3,548 Trading/supply sales 2,622 2,312

Total refined product sales 6,097 5,860

Global Indicator Refining Margin (GIM) ($/bbl)(d) US Gulf Coast 3.50 6.69 US Midwest 1.86 7.03

US West Coast 3.32 9.96 North West Europe 4.29 4.67

Mediterranean 3.11 3.56 Singapore 0.97 2.51

BP Average GIM 3.08 6.20

Chemicals production (kte) US 940 713

Europe 981 788 Rest of World 1,887 1,244

Total production 3,808 2,745

(a) These effects represent the favourable (unfavourable) impact relative to management’s measure of performance. Further information on fair value accounting effects is provided on page 18.

(b) Refining availability represents Solomon Associates’ operational availability, which is defined as the percentage of the year that a unit is available for processing after subtracting the annualized time lost due to turnaround activity and all planned mechanical, process and regulatory maintenance downtime.

(c) Does not include volumes relating to crude oil.

(d) The Global Indicator Refining Margin (GIM) is the average of regional indicator margins weighted for BP’s crude refining capacity in each region. Each regional indicator margin is based on a single representative crude with product yields characteristic of the typical level of upgrading complexity. The regional indicator margins may not be representative of the margins achieved by BP in any period because of BP’s particular refinery configurations and crude and product slate.


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Other businesses and corporate

Other businesses and corporate comprises the Alternative Energy business, Shipping, the group’s aluminium asset, Treasury (which includes interest income on the group’s cash and cash equivalents), and corporate activities worldwide.

The replacement cost loss before interest and tax for the first quarter was $328 million, compared with a loss of $761 million a year ago. The net non-operating charge for the first quarter was $118 million, compared with a net charge of $321 million a year ago. In addition, there were favourable foreign exchange effects and lower costs, and improved margins in Alternative Energy.

In Alternative Energy, our solar business achieved sales of 54MW in the first quarter. In March, BP Solar announced the closure of manufacturing at its Frederick facility, in Maryland, US, as it moves its manufacturing to lower-cost locations. BP Solar will maintain its US presence in sales and marketing, research and technology, project development, and key business support activities.

In our US wind business, construction has commenced at the 125MW Goshen North wind farm (BP 50%) in Bonneville County, Idaho. BP’s net wind generation capacity(c) at the end of the first quarter was 711MW (1,237MW gross), compared with 678MW (1,113MW gross) at the end of the same period a year ago.

10


$ million Profit (loss) before interest and tax(a) (326 ) (800 )

Inventory holding (gains) losses (2 ) 39 Replacement cost profit (loss) before interest and tax(b) (328 ) (761 )

By region

US (231 ) (279 )Non-US (97 ) (482 )

(328 ) (761 )

Results include Non-operating items

US (106 ) (116 )Non-US (12 ) (205 )

(118 ) (321 )



(c) Net wind capacity is the sum of the rated capacities of the assets/turbines that have entered into commercial operation, including BP’s share of equity-accounted entities. The gross data is the equivalent capacity on a gross-JV basis, which includes 100% of the capacity of equity-accounted entities where BP has partial ownership.

Cautionary statement regarding forward-looking statements: The foregoing discussion contains forward-looking statements particularly those regarding production and quarterly phasing of production, second quarter seasonal turn-around effect and its impact on costs, margins and volumes; refining and petrochemicals margins; refinery turnaround activities; expected supply and trading contribution in the second quarter; dividend and optional scrip dividend. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will or may occur in the future. Actual results may differ from those expressed in such statements, depending on a variety of factors including the timing of bringing new fields onstream; future levels of industry product supply; demand and pricing; OPEC quota restrictions; PSA effects; operational problems; general economic conditions; political stability and economic growth in relevant areas of the world; changes in laws and governmental regulations; regulatory or legal actions; exchange rate fluctuations; development and use of new technology; the success or otherwise of partnering; the actions of competitors; natural disasters and adverse weather conditions; changes in public expectations and other changes to business conditions; wars and acts of terrorism or sabotage; and other factors discussed in this Announcement. For more information you should refer to our Annual Report and Accounts 2009 and our 2009 Annual Report on Form 20-F filed with the US Securities and Exchange Commission.


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Group income statement

11


$ million Sales and other operating revenues (Note 2) 73,071 47,296

Earnings from jointly controlled entities — after interest and tax 403 220 Earnings from associates — after interest and tax 763 285

Interest and other income 142 203 Gains on sale of businesses and fixed assets 38 81

Total revenues and other income 74,417 48,085

Purchases 51,641 30,777 Production and manufacturing expenses (Note 3) 5,740 5,894

Production and similar taxes (Note 3) 1,276 674 Depreciation, depletion and amortization 2,996 2,823

Impairment and losses on sale of businesses and fixed assets 164 137 Exploration expense 120 119

Distribution and administration expenses 3,020 3,349 Fair value (gain) loss on embedded derivatives (146 ) (186 )

Profit before interest and taxation 9,606 4,498 Finance costs 238 318

Net finance (income) expense relating to pensions and other post-retirement benefits (10 ) 50 Profit before taxation 9,378 4,130

Taxation 3,190 1,533 Profit for the period 6,188 2,597

Attributable to BP shareholders 6,079 2,562 Minority interest 109 35

6,188 2,597

Earnings per share — cents (Note 4) Profit for the period attributable to BP shareholders

Basic 32.39 13.69 Diluted 31.99 13.54


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Group statement of comprehensive income

Group statement of changes in equity

12


$ million Profit for the period 6,188 2,597

Currency translation differences (526) (1,011 )Available-for-sale investments marked to market (93) 74

Available-for-sale investments – recycled to the income statement — 2 Cash flow hedges marked to market (162) (211 )

Cash flow hedges – recycled to the income statement (94) 239 Cash flow hedges – recycled to the balance sheet 13 71

Taxation (119) (82 )Other comprehensive income (981) (918 )Total comprehensive income 5,207 1,679

Attributable to BP shareholders 5,105 1,668 Minority interest 102 11

5,207 1,679

BP shareholders’ Minority Total equity interest equity

$ million At 31 December 2009 101,613 500 102,113

Total comprehensive income 5,105 102 5,207

Dividends (2,626) (3) (2,629)Share-based payments (net of tax) (13) — (13)

Transactions involving minority interests — 300 300

At 31 March 2010 104,079 899 104,978

BP shareholders’ Minority Total equity interest equity

$ million At 31 December 2008 91,303 806 92,109

Total comprehensive income 1,668 11 1,679

Dividends (2,619) (111) (2,730)Share-based payments (net of tax) 121 — 121

At 31 March 2009 90,473 706 91,179


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Group balance sheet

13

31 March 31 December 2010 2009

$ million Non-current assets

Property, plant and equipment 108,232 108,275 Goodwill 8,409 8,620

Intangible assets 12,675 11,548 Investments in jointly controlled entities 15,484 15,296

Investments in associates 13,396 12,963 Other investments 1,459 1,567

Fixed assets 159,655 158,269 Loans 982 1,039

Other receivables 2,216 1,729 Derivative financial instruments 4,770 3,965

Prepayments 1,359 1,407 Deferred tax assets 464 516

Defined benefit pension plan surpluses 1,494 1,390 170,940 168,315

Current assets Loans 236 249

Inventories 23,221 22,605 Trade and other receivables 31,159 29,531

Derivative financial instruments 5,355 4,967 Prepayments 2,647 1,753

Current tax receivable 238 209 Cash and cash equivalents 6,841 8,339

69,697 67,653 Total assets 240,637 235,968

Current liabilities Trade and other payables 38,146 35,204

Derivative financial instruments 5,530 4,681 Accruals 5,482 6,202

Finance debt 8,356 9,109 Current tax payable 2,624 2,464

Provisions 1,646 1,660 61,784 59,320

Non-current liabilities Other payables 3,206 3,198

Derivative financial instruments 3,899 3,474 Accruals 656 703

Finance debt 23,797 25,518 Deferred tax liabilities 20,156 18,662

Provisions 12,752 12,970 Defined benefit pension plan and other post-retirement benefit plan deficits 9,409 10,010

73,875 74,535 Total liabilities 135,659 133,855

Net assets 104,978 102,113

Equity BP shareholders’ equity 104,079 101,613

Minority interest 899 500 104,978 102,113


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Condensed group cash flow statement

14


$ million Operating activities Profit before taxation 9,378 4,130

Adjustments to reconcile profit before taxation to net cash provided by operating activities Depreciation, depletion and amortization and exploration expenditure written off 3,017 2,849

Impairment and (gain) loss on sale of businesses and fixed assets 126 56 Earnings from equity-accounted entities, less dividends received (669) (252 )

Net charge for interest and other finance expense, less net interest paid 46 89 Share-based payments (146) 86

Net operating charge for pensions and other post-retirement benefits, less contributions and benefit payments for unfunded plans (490) 26

Net charge for provisions, less payments (48) 281 Movements in inventories and other current and non-current assets and liabilities(a) (1,940) 32

Income taxes paid (1,581) (1,725 )Net cash provided by operating activities 7,693 5,572

Investing activities Capital expenditure (4,289) (4,817 )

Acquisitions, net of cash acquired — — Investment in jointly controlled entities (82) (103 )

Investment in associates (6) (47 )Proceeds from disposal of fixed assets 108 311

Proceeds from disposal of businesses, net of cash disposed — — Proceeds from loan repayments 56 117

Other — 47 Net cash used in investing activities (4,213) (4,492 )

Financing activities Net issue of shares 128 35

Proceeds from long-term financing 342 4,619 Repayments of long-term financing (2,495) (2,580 )

Net decrease in short-term debt (247) (182 )Dividends paid – BP shareholders (2,626) (2,619 )

– Minority interest (3) (111 )Net cash used in financing activities (4,901) (838 )

Currency translation differences relating to cash and cash equivalents (77) (79 )Increase (decrease) in cash and cash equivalents (1,498) 163 Cash and cash equivalents at beginning of period 8,339 8,197

Cash and cash equivalents at end of period 6,841 8,360

(a) Includes Inventory holding (gains) losses (705) (254 )

Fair value (gain) loss on embedded derivatives (146) (186 )

Inventory holding gains and losses and fair value gains and losses on embedded derivatives are also included within profit before taxation.


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Capital expenditure and acquisitions

Exchange rates

15


$ million By business

Exploration and Production US 1,133 1,670

Non-US(a) 2,815 2,035 3,948 3,705

Refining and Marketing US 528 567

Non-US 144 226 672 793

Other businesses and corporate US 28 56

Non-US 39 41 67 97 4,687 4,595

By geographical area US 1,689 2,293

Non-US(a) 2,998 2,302 4,687 4,595

Included above: Acquisitions and asset exchanges — —

(a) First quarter 2010 included capital expenditure of $900 million in Exploration and Production relating to the formation of a partnership with Value Creation Inc. to develop the Terre de Grace oil sands acreage in the Athabasca region of Alberta, Canada.


US dollar/sterling average rate for the period 1.56 1.43 US dollar/sterling period-end rate 1.51 1.42

US dollar/euro average rate for the period 1.38 1.30 US dollar/euro period-end rate 1.34 1.32


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Analysis of replacement cost profit before interest and tax and reconciliation to profit before taxation(a)

16



Exploration and Production US 2,762 1,143

Non-US 5,530 3,177 8,292 4,320

Refining and Marketing US (63 ) 308

Non-US 792 782 729 1,090

Other businesses and corporate US (231 ) (279 )

Non-US (97 ) (482 ) (328 ) (761 ) 8,693 4,649

Consolidation adjustment 208 (405 )Replacement cost profit before interest and tax(b) 8,901 4,244

Inventory holding gains (losses)(c) Exploration and Production 24 (34 )

Refining and Marketing 679 327 Other businesses and corporate 2 (39 )

Profit before interest and tax 9,606 4,498 Finance costs 238 318

Net finance (income) expense relating to pensions and other post-retirement benefits (10 ) 50 Profit before taxation 9,378 4,130

Replacement cost profit (loss) before interest and tax

By geographical area US 2,590 854

Non-US 6,311 3,390 8,901 4,244

(a) IFRS requires that the measure of profit or loss disclosed for each operating segment is the measure that is provided regularly to the chief operating decision maker for the purposes of performance assessment and resource allocation. For BP, this measure of profit or loss is replacement cost profit before interest and tax. In addition, a reconciliation is required between the total of the operating segments’ measures of profit or loss and the group profit or loss before taxation.

(b) Replacement cost profit reflects the replacement cost of supplies. The replacement cost profit for the period is arrived at by excluding from profit inventory holding gains and losses and their associated tax effect. Replacement cost profit for the group is not a recognized GAAP measure.

(c) Inventory holding gains and losses represent the difference between the cost of sales calculated using the average cost to BP of supplies acquired during the period and the cost of sales calculated on the first-in first-out (FIFO) method after adjusting for any changes in provisions where the net realizable value of the inventory is lower than its cost. Under the FIFO method, which we use for IFRS reporting, the cost of inventory charged to the income statement is based on its historic cost of purchase, or manufacture, rather than its replacement cost. In volatile energy markets, this can have a significant distorting effect on reported income. The amounts disclosed represent the difference between the charge (to the income statement) for inventory on a FIFO basis (after adjusting for any related movements in net realizable value provisions) and the charge that would have arisen if an average cost of supplies was used for the period. For this purpose, the average cost of supplies during the period is principally calculated on a monthly basis by dividing the total cost of inventory acquired in the period by the number of barrels acquired. The amounts disclosed are not separately reflected in the financial statements as a gain or loss. No adjustment is made in respect of the cost of inventories held as part of a trading position and certain other temporary inventory positions. Management believes this information is useful to illustrate to investors the fact that crude oil and product prices can vary significantly from period to period and that the impact on our reported result under IFRS can be significant. Inventory holding gains and losses vary from period to period due principally to changes in oil prices as well as changes to underlying inventory levels. In order for investors to understand the operating performance of the group excluding the impact of oil price changes on the replacement of inventories, and to make comparisons of operating performance between reporting periods, BP’s management believes it is helpful to disclose this information.



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Non-operating items(a)

Non-operating items are charges and credits arising in consolidated entities that BP discloses separately because it considers such disclosures to be meaningful and relevant to investors. These disclosures are provided in order to enable investors better to understand and evaluate the group’s financial performance.

17


$ million Exploration and Production

Impairment and gain (loss) on sale of businesses and fixed assets (13 ) 73 Environmental and other provisions — —

Restructuring, integration and rationalization costs (104 ) (1 )Fair value gain (loss) on embedded derivatives 146 243

Other 12 (4 ) 41 311

Refining and Marketing Impairment and gain (loss) on sale of businesses and fixed assets (45 ) (21 )

Environmental and other provisions — — Restructuring, integration and rationalization costs 12 (263 )

Fair value gain (loss) on embedded derivatives — (57 )Other (37 ) (9 )

(70 ) (350 )Other businesses and corporate

Impairment and gain (loss) on sale of businesses and fixed assets (68 ) (108 )Environmental and other provisions — (75 )

Restructuring, integration and rationalization costs (38 ) (71 )Fair value gain (loss) on embedded derivatives — —

Other (12 ) (67 ) (118 ) (321 )

Total before taxation (147 ) (360 )Taxation credit (charge)(b) 50 135

Total after taxation for period (97 ) (225 )

(a) An analysis of non-operating items by region is shown on pages 7, 9 and 10.

(b) Tax is calculated using the quarter’s effective tax rate on replacement cost profit.


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Non-GAAP information on fair value accounting effects

BP uses derivative instruments to manage the economic exposure relating to inventories above normal operating requirements of crude oil, natural gas and petroleum products as well as certain contracts to supply physical volumes at future dates. Under IFRS, these inventories and contracts are recorded at historic cost and on an accruals basis respectively. The related derivative instruments, however, are required to be recorded at fair value with gains and losses recognized in income because hedge accounting is either not permitted or not followed, principally due to the impracticality of effectiveness testing requirements. Therefore, measurement differences in relation to recognition of gains and losses occur. Gains and losses on these inventories and contracts are not recognized until the commodity is sold in a subsequent accounting period. Gains and losses on the related derivative commodity contracts are recognized in the income statement from the time the derivative commodity contract is entered into on a fair value basis using forward prices consistent with the contract maturity.

IFRS requires that inventory held for trading be recorded at its fair value using period end spot prices whereas any related derivative commodity instruments are required to be recorded at values based on forward prices consistent with the contract maturity. Depending on market conditions, these forward prices can be either higher or lower than spot prices resulting in measurement differences.

BP enters into contracts for pipelines and storage capacity that, under IFRS, are recorded on an accruals basis. These contracts are risk-managed using a variety of derivative instruments which are fair valued under IFRS. This results in measurement differences in relation to recognition of gains and losses.

The way that BP manages the economic exposures described above, and measures performance internally, differs from the way these activities are measured under IFRS. BP calculates this difference for consolidated entities by comparing the IFRS result with management’s internal measure of performance, under which the inventory and the supply and capacity contracts in question are valued based on fair value using relevant forward prices prevailing at the end of the period. We believe that disclosing management’s estimate of this difference provides useful information for investors because it enables investors to see the economic effect of these activities as a whole. The impacts of fair value accounting effects, relative to management’s internal measure of performance, are shown in the table above. A reconciliation to GAAP information is set out below.

Reconciliation of non-GAAP information

18


$ million Favourable (unfavourable) impact relative to management’s measure of performance

Exploration and Production 63 158 Refining and Marketing 10 (109 )

73 49 Taxation charge(a) (25 ) (18 )

48 31

(a) Tax is calculated using the quarter’s effective tax rate on replacement cost profit.


$ million Exploration and Production

Replacement cost profit before interest and tax adjusted for fair value accounting effects 8,229 4,162 Impact of fair value accounting effects 63 158

Replacement cost profit before interest and tax 8,292 4,320

Refining and Marketing Replacement cost profit before interest and tax adjusted for fair value accounting effects 719 1,199

Impact of fair value accounting effects 10 (109 )Replacement cost profit before interest and tax 729 1,090

Total group

Profit before interest and tax adjusted for fair value accounting effects 9,533 4,449 Impact of fair value accounting effects 73 49

Profit before interest and tax 9,606 4,498


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Realizations and marker prices

Non-GAAP information on unit production costs adjusted for restructuring costs(a)

19


Average realizations(a) Liquids ($/bbl)(b)

US 69.77 39.47 Europe 75.71 47.59

Rest of World 72.94 40.89 BP Average 71.86 41.26

Natural gas ($/mcf) US 4.84 3.38

Europe 4.91 5.56 Rest of World 3.90 3.41 BP Average 4.26 3.63

Total hydrocarbons ($/boe) US 54.54 31.83

Europe 60.39 41.36 Rest of World 42.20 28.35 BP Average 49.16 31.40

Average oil marker prices ($/bbl) Brent 76.36 44.46

West Texas Intermediate 78.84 43.20 Alaska North Slope 79.14 45.40

Mars 75.85 43.83 Urals (NWE– cif) 75.31 43.65

Russian domestic oil 35.52 19.52 Average natural gas marker prices

Henry Hub gas price($/mmBtu)(c) 5.30 4.91 UK Gas – National Balancing Point (p/therm) 35.65 46.80

(a) Based on sales of consolidated subsidiaries only – this excludes equity-accounted entities.

(b) Crude oil and natural gas liquids.

(c) Henry Hub First of Month Index.


$ million Production costs 1,524 1,499

Restructuring costs included in production costs (86) – Production costs adjusted for restructuring costs 1,438 1,499

Production (net of royalties)(b) Total hydrocarbons (mboe/d)(c) 2,690 2,715

Unit production costs adjusted for restructuring costs ($/boe)(d) 5.94 6.13

(a) Production costs are costs incurred by Exploration and Production to operate and maintain wells and related equipment and facilities. Amounts do not include ad valorem and severance taxes. Restructuring costs are included within non-operating items. Further information on non-operating items is provided on page 17.

(b) Excludes BP’s share of production of equity-accounted entities.

(c) Natural gas is converted to oil equivalent at 5.8 billion cubic feet = 1 million barrels.

(d) For first quarter 2009, there were no restructuring costs within production costs.


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Notes

20

1. Basis of preparation

The interim financial information included in this report has been prepared in accordance with IAS 34 ‘Interim Financial Reporting’.

The results for the interim periods are unaudited and in the opinion of management include all adjustments necessary for a fair presentation of the results for the periods presented. All such adjustments are of a normal recurring nature. This report should be read in conjunction with the consolidated financial statements and related notes for the year ended 31 December 2009 included in BP Annual Report and Accounts 2009 and in BP Annual Report on Form 20-F 2009.

BP prepares its consolidated financial statements included within its Annual Report and Accounts on the basis of International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB), IFRS as adopted by the European Union (EU) and in accordance with the provisions of the UK Companies Act 2006. IFRS as adopted by the EU differs in certain respects from IFRS as issued by the IASB, however, the differences have no impact on the group’s consolidated financial statements for the periods presented. The financial information presented herein has been prepared in accordance with the accounting policies expected to be used in preparing the Annual Report and Accounts and the Annual Report on Form 20-F for 2010, which do not differ significantly from those used in the BP Annual Report and Accounts 2009 or in BP Annual Report on Form 20-F 2009.

BP has adopted the revised version of IFRS 3 ‘Business Combinations’, with effect from 1 January 2010. The revised standard still requires the purchase method of accounting to be applied to business combinations but introduces some changes to the accounting treatment. Assets and liabilities arising from business combinations that occurred before 1 January 2010 were not required to be restated and thus there was no effect on the group’s reported income or net assets on adoption.

In addition, BP has adopted the amended version of IAS 27, ‘Consolidated and Separate Financial Statements’, also with effect from 1 January 2010. This requires the effects of all transactions with minority interests to be recorded in equity if there is no change in control. When control is lost, any remaining interest in the entity is remeasured to fair value and a gain or loss recognized in profit or loss. There was no effect on the group’s reported income or net assets on adoption.


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Notes

21

2. Sales and other operating revenues First quarter 2010 2009


Exploration and Production 18,080 12,343 Refining and Marketing 64,286 40,573

Other businesses and corporate 790 584 83,156 53,500

Less: sales between businesses Exploration and Production 9,746 5,800

Refining and Marketing 135 111 Other businesses and corporate 204 293

10,085 6,204

Third party sales and other operating revenues Exploration and Production 8,334 6,543

Refining and Marketing 64,151 40,462 Other businesses and corporate 586 291

Total third party sales and other operating revenues 73,071 47,296

By geographical area

US 26,108 17,580 Non-US 54,009 33,586

80,117 51,166 Less: sales between areas 7,046 3,870

73,071 47,296

3. Production and similar taxes First quarter 2010 2009

$ million US 313 79

Non-US 963 595 1,276 674

Comparative figures have been restated to include amounts previously reported as production and manufacturing expenses amounting to $213 million for the first quarter 2009, which we believe are more appropriately classified as production taxes. There was no effect on the group profit for the period or the group balance sheet.


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Notes

22

4. Earnings per share and shares in issue

Basic earnings per ordinary share (EpS) amounts are calculated by dividing the profit for the period attributable to ordinary shareholders by the weighted average number of ordinary shares outstanding during the period. The calculation of EpS is performed separately for each discrete quarterly period, and for the year-to-date period. As a result, the sum of the discrete quarterly EpS amounts in any particular year-to-date period may not be equal to the EpS amount for the year-to-date period.

For the diluted EpS calculation the weighted average number of shares outstanding during the period is adjusted for the number of shares that are potentially issuable in connection with employee share-based payment plans using the treasury stock method.


$ million Results for the period

Profit for the period attributable to BP shareholders 6,079 2,562 Less: preference dividend — —

Profit attributable to BP ordinary shareholders 6,079 2,562 Inventory holding (gains) losses, net of tax (481) (175)

RC profit attributable to BP ordinary shareholders 5,598 2,387

Basic weighted average number of shares outstanding (thousand)(a) 18,769,888 18,720,354 ADS equivalent (thousand)(a) 3,128,315 3,120,059

Weighted average number of shares outstanding used to calculate diluted earnings per share (thousand)(a) 19,004,740 18,920,515

ADS equivalent (thousand)(a) 3,167,457 3,153,419

Shares in issue at period-end (thousand)(a) 18,784,361 18,724,785 ADS equivalent (thousand)(a) 3,130,727 3,120,798

(a) Excludes treasury shares and the shares held by the Employee Share Ownership Plans and includes certain shares that will be issuable in the future under employee share plans.


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Notes

23

5. Analysis of changes in net debt First quarter 2010 2009

$ million Opening balance

Finance debt 34,627 33,204 Less: Cash and cash equivalents 8,339 8,197

Less: FV asset (liability) of hedges related to finance debt 127 (34 )Opening net debt 26,161 25,041

Closing balance

Finance debt 32,153 34,698 Less: Cash and cash equivalents 6,841 8,360

Less: FV asset (liability) of hedges related to finance debt 152 (323 )Closing net debt 25,160 26,661

Decrease (increase) in net debt 1,001 (1,620 )

Movement in cash and cash equivalents (excluding exchange adjustments) (1,421) 242 Net cash outflow (inflow) from financing (excluding share capital) 2,400 (1,857 )

Other movements 7 7 Movement in net debt before exchange effects 986 (1,608 )

Exchange adjustments 15 (12 )Decrease (increase) in net debt 1,001 (1,620 )

6. TNK-BP operational and financial information First quarter 2010 2009

Production (Net of royalties) (BP share) Crude oil (mb/d) 849 822

Natural gas (mmcf/d) 673 642 Total hydrocarbons (mboe/d)(a) 965 933

$ million Income statement (BP share)

Profit (loss) before interest and tax 788 419 Finance costs (38) (68 )

Taxation (168) (185 )Minority interest (39) (32 )

Net income 543 134 Cash flow

Dividends received 256 — 31 March 31 December

Balance sheet 2010 2009

Investments in associates 9,428 9,141

(a) Natural gas is converted to oil equivalent at 5.8 billion cubic feet = 1 million barrels.


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Notes

24

7. Inventory valuation

A provision of $46 million was held at 31 December 2009 to write inventories down to their net realizable value. The net movement in the provision during the first quarter 2010 was a decrease of $22 million (first quarter 2009 was a decrease of $1,163 million).

8. Post balance sheet event

On 20 April 2010, the semi-submersible drilling rig Deepwater Horizon owned and operated by Transocean Limited caught fire in the US Gulf of Mexico and subsequently sank. The rig was drilling an exploration well (Mississippi Canyon 252) in which BP has a 65% interest. As operator under the MC 252 lease, BP is committed to doing everything in its power to contain the environmental consequences of the incident. BP is currently ramping up preparations for a major cleaning effort on the shorelines of Louisiana, Mississippi, Alabama and Florida. Efforts continue to stem the flow of oil from the well, currently estimated at up to 5,000 barrels a day. Preliminary estimates indicate that current efforts to contain the spill and secure the well are costing the MC 252 owners about $6 million per day. This figure is expected to rise as activity increases. It is too early to quantify other potential costs and liabilities associated with the incident.

9. Second-quarter results

BP’s second-quarter results will be announced on 27 July 2010.

10. Statutory accounts

The financial information shown in this publication, which was approved by the board of directors on 26 April 2010, is unaudited and does not constitute statutory financial statements.


Table of Contents

Signatures

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

25

BP p.l.c. (Registrant)

Dated: 29 April 2010 /s/ D J Pearl D J PEARL Deputy Company Secretary


Exhibit 99.1

Computation of ratio of earnings to fixed charges

26

First quarter 2010 $ million, except ratio

Profit before taxation 9,378

Group’s share of income in excess of dividends of equity-accounted entities (669)

Capitalized interest, net of amortization 11

Profit as adjusted 8,720

Fixed charges:

Interest expense 144 Rental expense representative of interest 312

Capitalized interest 51 507

Total adjusted earnings available for payment of fixed charges 9,227

Ratio of earnings to fixed charges 18.2


Exhibit 99.2

Capitalization and indebtedness

The following table shows the unaudited consolidated capitalization and indebtedness of the BP group as of 31 March 2010 in accordance with IFRS:

27

31 March 2010 $ million

Share capital Authorized share capital (1) 9,021

Capital shares (2-3) 5,183 Paid-in surplus (4) 11,033 Merger reserve (4) 27,206

Own shares (71)Available-for-sale investments 661

Cash flow hedges (164)Foreign currency translation reserve 4,117

Treasury shares (21,263)Share-based payment reserve 1,397

Profit and loss account 75,980 BP shareholders’ equity 104,079

Finance debt (5-7)

Due within one year 8,356 Due after more than one year 23,797

Total finance debt 32,153 Total capitalization (8) 136,232

(1) Authorized share capital comprises 36 billion ordinary shares, par value US$0.25 per share, and 12,750,000 cumulative preference shares, par value £1 per share.

(2) Issued share capital as of 31 March 2010 comprised 18,777,884,384 ordinary shares, par value US$0.25 per share, and 12,706,252 preference shares, par value £1 per share. This excludes 1,866,287,922 ordinary shares which have been bought back and held in treasury by BP and 112,803,287 ordinary shares which have been bought back for cancellation. These shares are not taken into consideration in relation to the payment of dividends and voting at shareholders’ meetings.

(3) Capital shares represent the ordinary shares of BP which have been issued and are fully paid.

(4) Paid-in surplus and merger reserve represent additional paid-in capital of BP which cannot normally be returned to shareholders.

(5) Finance debt recorded in currencies other than US dollars has been translated into US dollars at the relevant exchange rates existing on 31 March 2010.

(6) Obligations under finance leases are included within finance debt in the above table.

(7) As of 31 March 2010, the parent company, BP p.l.c., had outstanding guarantees totalling US$27,834 million, of which US$27,801 million related to guarantees in respect of borrowings by its subsidiary undertakings. Thus 86% of the finance debt had been guaranteed by BP. BP had, as of 31 March 2010, no material outstanding contingent indebtedness and there have been no material changes since that date. All of BP’s debt is unsecured.

(8) There has been no material change since 31 March 2010 in the consolidated capitalization and indebtedness of BP. Except for the matters disclosed in note 8 on page 24 in connection with the Deepwater Horizon drilling rig, there has been no material change since 31 March 2010 in relation to the contingent liabilities of BP.


Exhibit 8


SECURITIES AND EXCHANGE COMMISSION


Form 6-K

Report of Foreign Issuer

Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934

for the period ended 30 April 2010

BP p.l.c. (Translation of registrant's name into English)

1 ST JAMES'S SQUARE, LONDON, SW1Y 4PD, ENGLAND (Address of principal executive offices)

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.

Form 20-F |X| Form 40-F --------------- ----------------

Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the

Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.

Yes No |X| --------------- ----------------


press release

April 30, 2010

This press release was issued last night in the United States.

BP STEPS UP SHORELINE PROTECTION PLANS ON US GULF COAST

BP announced today it has launched the next phase of its effort to contain and clean up the Gulf of Mexico oil spill, with a significant expansion of onshore preparations in case spilled oil should reach the coast. The company is today ramping up preparations for a major protection and cleaning effort on the shorelines of Louisiana, Mississippi, Alabama and Florida. To supplement its Houma, Louisiana incident command post, which oversees the offshore containment effort and onshore response in Louisiana, BP is now establishing a similar onshore incident command post in Mobile, Alabama to oversee the onshore response in Mississippi, Alabama and Florida. Work will continue to complete installing marine protection booms along the coast. As well as 180,000 feet of boom already in the water, an additional 300,000 feet is staged or in the process of being deployed, with more on the way. BP is mobilizing its full resources to fight the oil spill, which follows the sinking of the Transocean Deepwater Horizon drilling rig in the Mississippi Canyon 252 block. This includes efforts to stem the flow of oil into the water from the sub-sea well, to contain the spill offshore and to protect the Gulf coast. " We are doing absolutely everything in our power to eliminate the source of the leak and contain the environmental impact of the spill. We are determined to fight this spill on all fronts, in the deep waters of the Gulf, in the shallow waters and, should it be necessary, on the shore," said BP Group Chief Executive Tony Hayward. "In the past few days I have seen the full extent of BP's global resources and capability being brought to bear on this problem, and welcome the offers of further assistance we have had from government agencies, oil companies and members of the public to defend the shoreline and fight this spill. We are determined to succeed." The massive offshore operation that has been running for a week has been addressing the spill on the surface offshore, both by skimming and collecting oil and by applying dispersants. There is concern, however, that weather and current patterns will shift and move the sheen closer to shore or onshore in the coming days. The new onshore activity is focussed on five locations in the potentially affected states: Venice, Louisiana; Pascagoula and Biloxi, Mississippi; Mobile, Alabama; and Pensacola, Florida. Staging posts are in place stocked with people and material, including about 100,000 feet of boom, to protect the shoreline in each area. Each of the states has oil spill response plans already in place and trained community groups and volunteers will also be available to aid the response to the oil spill and deploy resources. Parallel to these, BP is today setting up offices in each of these communities manned by company staff to provide information on what is happening, what is being done and any developments. These will connect with local government officials, community and other groups to provide information on developments. To harness the many offers of help BP has received, these offices will also collect names of any people wanting to assist with the response, and will co-ordinate identification of activities with which untrained personnel may be able to assist.


These efforts are in addition to the ongoing work with Transocean, MMS, the US Coast Guard, and the other organizations within the Unified Command to do everything possible to stop the flow of oil on the sea bed. Efforts to stem the flow of oil from the well, currently estimated at up to 5,000 barrels a day, are continuing with six remotely-operated vehicles (ROVs) continuing to attempt to activate the blow out preventer (BOP) on the sea bed. By this weekend the Transocean Development Driller III is scheduled to spud a relief well intended to secure the existing well. Drilling of this well is expected to take two to three months. Work is also continuing to produce a subsea collection system capable of operating in deep water to funnel leaking oil to the surface for treatment. This is expected to be ready for deployment in the next few weeks. Preliminary estimates indicate that current efforts to contain the spill and secure the well are costing the MC252 owners about $6 million per day. This figure is expected to rise as activity increases. It is too early to quantify other potential costs and liabilities associated with the incident. Press enquiries : U.S. Coast Guard Joint Information Center 985-902-5231 BP Press Office London +44 20 7496 4076 www.deepwaterhorizonresponse.com

- ENDS -

SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

BP p.l.c.(Registrant)

Dated: 30 April 2010

/s/ D. J. PEARL..............................

D. J. PEARLDeputy Company Secretary


Exhibit 9


SECURITIES AND EXCHANGE COMMISSION


Form 6-K

Report of Foreign Issuer

Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934

for the period ended 4 May 2010

BP p.l.c. (Translation of registrant's name into English)

1 ST JAMES'S SQUARE, LONDON, SW1Y 4PD, ENGLAND (Address of principal executive offices)

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.

Form 20-F |X| Form 40-F --------------- ----------------

Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the

Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.

Yes No |X| --------------- ----------------


May 4, 2010

WORK BEGINS TO DRILL RELIEF WELL TO STOP OIL SPILL

BP today announced that work has begun to drill a relief well to intercept and isolate the oil well that is spilling oil in the US Gulf of Mexico. The drilling began at 15:00CDT (21:00BST) on Sunday May 2. The new well, in 5,000 feet of water, is planned to intercept the existing well around 13,000 feet below the seabed and permanently seal it. The new drill site is about half a mile on the seabed from the leaking well in Mississippi Canyon block 252, and drilling is estimated to take some three months. "This is another key step in our work to permanently stop the loss of oil from the well," said BP Group Chief Executive Tony Hayward. "At the same time we are continuing with our efforts to stop the leak and control the oil at the seabed, to tackle the oil offshore, and to protect the shoreline through a massive effort together with government agencies and local communities." BP has also carried out a second approved trial injection of dispersants directly into the oil flow at a point close to the main leak on the seabed. The technique is intended to efficiently mix the oil and dispersant, breaking up and dispersing accumulations of oil and allowing it to degrade naturally and reduce surface impact. The suggestion for this innovative technique came from the companies across the oil industry that BP approached last week for further ideas and expertise to help BP control the well and tackle the spill. Rapid progress is also being made in constructing a coffer dam, or containment canopy. A 14 x 24 x 40 foot steel canopy has already been fabricated and other-sized canopies are under construction and being sourced. Once lowered over the leak site and connected by pipe, the canopy is designed to channel the flow of oil from the subsea to the surface where it could be processed and stored safely on board a specialist vessel. Weather permitting, first installation of a canopy on site is expected to start in a little over a week, allowing the process of testing and commissioning to begin. Only once this is complete will the effectiveness of the system be demonstrated. At the seabed, BP continues to use up to eight remotely operated vehicles (ROVs) to work on the blow-out preventer and subsea equipment. Accurate estimation of the rate of flow is difficult, but current estimates by the US National Oceanic and Atmospheric Administration (NOAA) suggest some 5,000 barrels (210,000 US gallons) of oil per day are escaping from the well. On the surface, weather hampered surface operations over the weekend but is forecast to improve in coming days. BP currently has 230,000 gallons of dispersant available to deploy once the sea state is calm enough and a further 208,000 gallons on order. Offshore booms and specialist oil spill response vessels, skimmers and barges will return to operation in calmer seas, treating and collecting as much oil as possible before it reaches the coast. The onshore activity is focused on six locations in the potentially affected states: Venice and Port Sulphur, Louisiana; Pascagoula and Biloxi, Mississippi; Mobile, Alabama; and Pensacola, Florida. Staging posts are in place stocked with people and material to help protect the shoreline in each area. Work is continuing to install marine protection booms along the coast. Hundreds of thousands of feet of boom have been deployed and, to date, 2,000 volunteers have been trained to assist in the response effort.

press release


Whilst difficult to accurately estimate, the cost to the MC252 owners of the efforts to contain the spill and secure the well is currently estimated to be more than $6 million per day. This figure is rising as activity increases. It is too early to quantify other potential costs and liabilities associated with the incident. Press enquiries: BP Press Office London +44 20 7496 4076 BP Press office, US: +1 281 366 0265 U.S. Coast Guard Joint Information Center 985-902-5231 www.deepwaterhorizonresponse.com

- ENDS -

SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

BP p.l.c.(Registrant)

Dated: 4 May 2010

/s/ D. J. PEARL..............................

D. J. PEARLDeputy Company Secretary


Exhibit 10





Exhibit 11




















Exhibit 12


Case 2:12-cr-00292-SSV-DEK Document 2 Filed 11/15/12 Page 1 of 1Case 2:10-md-02179-CJB-SS Document 10002-14 Filed 05/15/13 Page 2 of 58

Case 2:12-cr-00292-SSV-DEK Document 2-1 Filed 11/15/12 Page 1 of 56Case 2:10-md-02179-CJB-SS Document 10002-14 Filed 05/15/13 Page 3 of 58
























































Exhibit 13




Exhibit 14



Exhibit 15


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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA

IN RE: OIL SPILLby the OIL RIG,DEEPWATER HORIZON inthe GULF OF MEXICO,April 20, 2010

MDL NO. 2179

SECTION "J"

JUDGE BARBIER

MAG. JUDGESHUSHAN

VOLUME 1

Deposition of DAVID RAINEY, taken atPan-American Building, 601 Poydras Street,11th Floor, New Orleans, Louisiana, 70130, onJune 2, 2011.

APPEARANCES:

Mr. Duke WilliamsMr. Christopher ZaineyWILLIAMS LAW GROUP909 Poydras Street, Suite 1650New Orleans, Louisiana 70112(985) 876-7595

GAUDET, KAISER, L.L.C.

Board-Certified Court Reporters

1Case 2:10-md-02179-CJB-SS Document 10002-17 Filed 05/15/13 Page 2 of 5

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GAUDET, KAISER, L.L.C.Board-Certified Court Reporters

182

you could please turn to Tab 23 in your

binder.

A. Okay.

Q. And this is an e-mail, it starts

at the top: From Doug Suttles to John Lynch

and Andy Inglis.

But if we work down the e-mail

chain, it starts with you forwarding a flow

rate note to Mr. Suttles. And the attachment

to -- and this e-mail is dated May 19th,

2010.

And the attachment is -- is a

document that is entitled: Mississippi

Canyon 252 #1 Flow Rate Calculations.

Mr. Rainey, is this the memo

that you referred to earlier when you were

discussing or we were discussing your

May 17th calculations?

A. I believe it is, yes. I'm not

used to seeing it printed in this format

but --

Q. Yeah, for whatever reason that's

the way it printed when we got it. And if

you take a look at that and tell me whether

it appears that the memo and the attachments


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183

to that memo appear to be complete to you.

(Discussion off the record.)

A. Yes, this looks to be complete

at first glance.

Q. (BY MR. CERNICH) And did you

prepare this memo, Mr. Rainey?

A. Yes, I did.

Q. And did anyone assist you in

preparing this memo?

A. It was reviewed by Doug Suttles.

Q. Did he ask you to prepare this

memo?

A. No.

Q. Did someone ask you to prepare

this memo?

A. A request was made. This was my

response to the request, not a specific

request to prepare a memo.

Q. Okay. And what was -- what was

the request?

MR. LANCASTER: Object and ask you to

lay some additional foundation as to who,

what and where because I'm going to be

instructing the witness not to answer some

questions based upon privilege grounds.


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184

MR. CERNICH: Okay.

Q. (BY MR. CERNICH) Why did you

prepare this memo?

MR. LANCASTER: That would call for

disclosure of conversations with counsel, so

I instruct the witness not to answer based

upon privilege. You could get the "who" out

there, if you want.

Q. (BY MR. CERNICH) Who asked you

to prepare this memo?

A. Nobody asked me to prepare the

memo. I prepared the memo in response to a

request from BP's counsel.

Q. From BP's?

A. Counsel.

Q. Counsel. Did BP's counsel

review drafts of this memo?

A. Yes, they did.

Q. And is this the final version of

that memo?

A. I believe it is. The only --

there was one edit that was made to the final

sentence, and I can't remember whether this

is the final or the original version.

Q. Did you --


Exhibit 16to




The United States has moved to attach Exhibit 16 as a sealed appendix per Paragraph 8.B ofMDL No. 2179 Pre-Trial Order # 13 (Order Protecting Confidentiality), which mandates thatdocuments which have been designated as “Confidential” or “Highly Confidential” must be filedunder seal as an appendix to the instrument that refers to them.


Exhibit 17to






Exhibit 18




















Exhibit 19




Exhibit 20to






Exhibit 21to






Exhibit 22



1




BY THE OIL RIG )





*****************

VOLUME 1

*****************

Deposition of Timothy James Lockett,

Ph.D., BP, Inc., taken at the Pan-American

Building, 601 Poydras Street, 11th Floor, New

Orleans, Louisiana, 70130, on the 18th day of

December, 2012.



29

1 Q. Okay. You mentioned that you supervise a

2 Team of Engineers. How many people do you

3 supervise?

4 MR. PAVLIS: You're asking

5 currently?

6 MR. BENSON: Yeah.

7 MR. PAVLIS: Okay.

8 A. Right now, I supervise three people

9 directly.

10 Q. (By Mr. Benson) Okay. And who are those

11 people?

12 A. In Sunbury, Ian Hudson.

13 THE WITNESS: Do I need to spell

14 names?

15 THE COURT REPORTER: Sure.

16 Q. (By Mr. Benson) That would be helpful.

17 A. Hudson, H-u-d-s-o-n. And Kieron Hopper.

18 That's K-i-e-r-o-n, H-o-p-p-e-r. And in Houston,

19 Yong Qian Fan. Yong Qian is Y-o-n-g, Q-i-a-n,

20 surname F-a-n.

21 THE COURT REPORTER: Thanks.

22 Q. (By Mr. Benson) And did you say earlier

23 your title was Flow Assurance Engineer?

24 A. My title at the time I joined BP was Flow

25 Assurance Engineer, and my title now would be



30

1 Discipline Lead for Flow Assurance.

2 Q. Okay. Has the substance of your job

3 changed since you've joined BP?

4 A. The substance was not. The balance has

5 changed more in favor of supervisory rather than

6 delivery.

7 Q. Okay. Who do you report to now at BP?

8 A. Can you clarify whether you mean in a

9 managerial sense or in a technical sense?

10 Q. I guess both.

11 A. In a managerial sense, I currently report

12 to John Osborne, who is my Team Leader. He's the

13 Team Leader for Subsea Floating Systems. In a

14 technical sense, much of my work is connected

15 with Trevor Hill. And insofar as it concerns a

16 design project rather than a current operation,

17 then much of my work relates to Farah Saidi.

18 Q. Okay.

19 THE WITNESS: Do I need to spell

20 Saidi?

21 THE COURT REPORTER: No, sir. I've

22 got it.

23 THE WITNESS: Thank you.

24 Q. (By Mr. Benson) You mentioned John

25 Osborne. Can you briefly describe the management



89

1 Q. Okay. Well, let's go as you understood

2 it in May of 2010.

3 MR. DRAKE: The same objection.

4 MR. PAVLIS: I'll join in the

5 objection.

6 A. Well, in -- in May 2010, I would have

7 understood that higher resistance to flow would

8 drive a higher differential pressure. And you

9 don't know what the size of that restriction is,

10 so all you're talking about there is a scale of

11 how resistance would play against other

12 parameters that you don't know.

13 MR. BENSON: Let's go off the

14 record.

15 THE VIDEOGRAPHER: The time is

16 10:46 a.m. We're off the record, ending Tape 2.

17 (Recess from 10:46 a.m. to 11:00 a.m.)

18 MR. BENSON: Ready.

19 THE VIDEOGRAPHER: All set?

20 The time is 11:00 o'clock a.m. We're

21 back on the record, beginning Tape 3.

22 Q. (By Mr. Benson) Okay. Dr. Lockett, could

23 you turn to Tab 1 in your book. This is an

24 exhibit that's been previously marked as 9445.

25 Can you take a look at this? And I want to ask



90

1 you a few questions about it.

2 A. (Reviewing document.) Okay.

3 Q. Have you reviewed it?

4 A. I'm comfortable with it, yes.

5 Q. Okay. Now, this -- the cover is an

6 E-mail that you sent to Farah Saidi, Trevor Hill,

7 and Ian Stilwell on April 27th, 2010; is that

8 right?

9 A. That is correct.

10 Q. Okay. And what analysis were you

11 providing here?

12 A. We were starting to develop a -- an

13 analysis tool which would describe the system of

14 well, BOP stack, and riser for the purpose of

15 evaluating the option of using hydrates to block

16 the top of the well.

17 Q. Okay. I take it this is something that

18 Trevor Hill had asked you to work on?

19 A. Yes, it is.

20 Q. Okay. And this is sort of your initial

21 report to Mr. Hill and others about what you've

22 found so far?

23 A. Yes, it is.

24 Q. Okay. And this is sort of what we talked

25 about earlier, that after you do a modeling run



91

1 or modeling analysis, you would summarize it in

2 some kind of document to the person who asked for

3 that run?

4 A. This is the start of -- of that, yeah,

5 continuing that process of how it would normally

6 work, yes.

7 Q. Okay. Let me ask you to wor -- look at

8 the E-mail, the cover E-mail here. You say:

9 "This is from this morning and has as series of

10 key points landing at the identification that we

11 must either have a restriction to inflow

12 (formation collapse) or restriction to outflow

13 (crimp) in order to have realistic" flow --

14 "flowrates in the range 5000" to "20000" barrels

15 per day.


17 A. You did.

18 Q. Okay. And so that was your conclusion on

19 April 27th, correct?

20 A. You used the word "conclusion." I've

21 used the word "identification." There may be

22 a -- a difference in our interpretation of those

23 words, but in general form, that -- that's a

24 summary of where this work takes me or took me.

25 Q. Okay. When you say "(formation



155

1 A. (Reviewing document.)

2 Q. If we could mark this as 10646.

3 A. It's already marked.

4 MR. PAVLIS: It's already marked.

5 Q. (By Mr. Benson) Oh, yes. Thank you.

6 Okay. So this has been previously marked as

7 9446.

8 Dr. Lockett, do you recognize this

9 document and the attachments?

10 A. Yes, I do.

11 Q. Okay. Describe what this analysis was.

12 A. (Reviewing document.) This E-mail

13 discusses methods of estimating flow rate from

14 quantities that are measurable or could be

15 measurable in the system as it existed at that

16 time and explores how those methods would play

17 out given certain assumptions about the system in

18 order to provide -- to provide scales for

19 velocity, thermal, and pressure measurements, to

20 link those back to flow rates.

21 Q. Okay. And why -- why was this something

22 you were working on on May 3rd?

23 A. My recollection is that I was asked to

24 prepare a summary of methods that could be used

25 by a phone call to Trevor.



156

1 Q. And so this was your response?

2 A. And this is my response.

3 Q. Okay. And you -- you've titled the

4 E-mail, you've given it the "Subject: Best

5 estimate." It's fair to say this is your best

6 estimate at the time?

7 MR. DRAKE: Objection, form.

8 A. I've titled the E-mail "Best estimate"

9 for the purposes of conveying the view that we

10 have a number of different methods that can be

11 deployed to provide an estimate of flow, and any

12 one of them on their own constitutes an estimate,

13 when a fact is used to interpret the scales that

14 I've explored here. And a best estimate can be

15 derived when we have corroboration between those

16 different methods.

17 Q. (By Mr. Benson) Okay. And let's turn

18 to -- I think you should have a spreadsheet that

19 looks sort of like this (indicating), with three

20 plots and three tables.

21 A. Yes, I do.

22 Q. Okay. And is this the guts of the

23 analysis that you were just referring to?

24 A. The guts of the analysis really exist

25 on -- on the pages behind this, and this is a



252




BY THE OIL RIG )





*****************

VOLUME 2

*****************

Continuation of the Deposition of Timothy

James Lockett, Ph.D., taken at the Pan-American

Building, 601 Poydras Street, 11th Floor, New

Orleans, Louisiana, 70130, on the 19th day of

December, 2012.



425

1 my Counsel on a matter of privilege?

2 Q. (By Mr. Davis-Denny) Yes.

3 MR. DAVIS-DENNY: Can we please stop

4 the clock, though.

5 THE VIDEOGRAPHER: The time

6 is two -- going off the record?

7 MR. DAVIS-DENNY: Yes.

8 THE VIDEOGRAPHER: It's 2:49 p.m.

9 We're off the record.

10 (Recess from 2:49 p.m. to 2:54 p.m.)

11 MR. DAVIS-DENNY: Ready.

12 THE VIDEOGRAPHER: All set?

13 The time is 2:54 p.m. We're back on the

14 record, beginning Tape 15.

15 A. Can you repeat the question?

16 Q. (By Mr. Davis-Denny) Your analysis was

17 that the flow rate had increased during the

18 course of the Top Kill, correct?

19 A. The opinion I formed at that time, based

20 on the work I had conducted at that time, was

21 that the flow rate had increased between the

22 start of Top Kill 1 and the end of Top Kill 3.

23 Q. Okay. Could you please go back to U.S.

24 Tab 13, Exhibit 9446? This was the one we

25 started to look at earlier.



426

1 A. Okay.

2 Q. This is your May 3rd E-mail to Trevor

3 Hill with the "Subject" line "Best estimate"?


5 Q. Okay. Now if you'll please turn to the

6 attachment, and I believe there's an attachment

7 in there that's a long, legal-size piece of

8 paper, correct?

9 A. (Nodding.)

10 Q. And you're looking at that right now?

11 A. Yes, I am.

12 Q. Okay. And I'd like to focus your

13 attention on the numbers that are in the tables

14 on the -- towards the left-hand side of that

15 legal-size piece of paper.

16 Do you see that?

17 A. Yes, I do.

18 Q. Okay. And the second column in each of

19 your tables, is that a flow rate number in stock

20 tank barrels per day that you are estimating?


22 A. It's a flow rate in stock tank barrels

23 per day of the OilPhase, and I'm using it in a

24 parametric study, so it is an output from that

25 study as a function of hole size.



427

1 Q. (By Mr. Davis-Denny) Okay. And explain

2 to me, you have three different tables here, one

3 of which says "Outlet of Riser," one of which

4 says "BOP," one of which says Downstream "of

5 Crimp." But there does not appear to be a

6 tremendous amount of difference between the flow

7 rates in these tables, or what is the difference

8 between these tables, or among these tables, I

9 should say?


11 A. I believe these three tables index a

12 common set of OLGA calculations, and what I'm

13 doing in the three tables is pulling out

14 information that's three different places,

15 "Outlet of Riser," "BOP," downstream "of crimp,"

16 in order to form the three graphs that's shown on

17 the right-hand side of the page.

18 Q. (By Mr. Davis-Denny) Okay. So at "Outlet

19 of Riser," you have seven cases that vary based

20 on the size of the hole; is that correct?


22 Q. And six of those seven cases yield flow

23 rates higher than 5,000 barrels of oil per day,

24 correct?




428

1 A. Six of those cases have flow rates higher

2 than 5,000 barrels per day in them, yes.

3 Q. (By Mr. Davis-Denny) And four of the

4 seven cases, more than half, have flow rates

5 higher than 20,000 barrels of oil per day,

6 correct?


8 A. Four of the seven cases have flow rates

9 higher than 20,000 barrels per day, yes.

10 Q. (By Mr. Davis-Denny) And to arrive at a

11 flow rate under 20,000 barrels of oil per day,

12 you have to assume that the hole size through

13 which the oil is flowing is less than one inch;

14 is that correct?


16 A. Subject to the validity of the rest of

17 the modeling assumptions implicit in this work,

18 yes, that's correct.

19 Q. (By Mr. Davis-Denny) Okay. Did you have

20 any evidence that it was more likely than not

21 that the hole size was less than one inch in

22 May -- let's say in May of 2010?


24 A. No, I did not.

25 Q. (By Mr. Davis-Denny) I'd like to show you


Exhibit 23to






Exhibit 24to






Exhibit 25



1




BY THE OIL RIG )





*****************

VOLUME 1

*****************


DEPOSITION OF BP, BY AND THROUGH CHARLES

HOLT, taken at Pan-American Building,



November, 2012.



261

1 exactly what the numbers were, but some kind

2 of worst -- worst case modeling, because if

3 we can stab it with some worst case numbers,

4 then, you know, we'll always have lesser

502:37 numbers. That's the way the modeling -- and

6 as it turns out, we would have been able to

7 stab it with some worst case numbers, and so

8 at the end of the day whatever the flow rate

9 was wouldn't have affected because we used

1002:37 worst case numbers. I don't remember what

11 that number was specifically, but...

12 Q. (BY MS. STRIPPOLI) But put --

13 putting the numbers aside and putting the

14 actual flow rate aside, flow rate in and of

1502:37 itself, the stream of flow coming out of the

16 well impacts whether or not you can exercise

17 that source control option of putting a

18 second BOP on that original BOP, correct?

19 MR. DRAKE: Objection; form.

2002:37 MR. CASEY: Same.

21 A. Yes, there were -- there were

22 calculations done to determine the impact of

23 the flow coming out of the first BOP and our

24 ability to stab a second BOP, because of that

2502:38 concern.





Exhibit 26


⌒ [器 :

To:Cc:Sublect:

sensitivity:

chns Ma■ ce lChns Matice@streSS COmlFriday,Apl1 30,20104:34 PMSimpson,Richard:W‖‖am Burch:」 im We‖ings(BPli Cha‖ ie Hon(BP)Harbinder Pordal:Anup Pau!RE:Flow Rate for l耐 mode‖ ng run:BP Ma∞ndo PIume Modehng Parameters

Confidential

Understood

christopher l. l.'lat ic e, Ph.0.,PrincipalStress Engineering Services,5380 Courseview Dr.llason, OH 45044Phone:5lf-335-5701Fax:513-336-5817chris. maticeostress - comAn Employee o{ned companymlrlr. stress. com

t Licensed in OH and Tx

PE.(*)

Inc

-----Original Message-- - --From: Simpson, Richard I mai lto: Ric hard. SimDsonobp. com]sent: Friday, April 30, 2O7O 5:29 PM

To: Chris Hatice; t/iltiam Burch; lim tlellings (BP); charlie Holt (BP)cc: Harbinder Pordal.; Anup PaulSubject: Flow Rate for first modeling run : BP lilacondo Plume titodeling ParametersImportan(e: Highsensitivity: Confidential

chris,

l,lOTE : Confidential information

For the first runJ use 7O,OOO bpd

For the second runr 35,000 bpd

Third run, 77,5oo bpd

Regards,

Richard Simpson, HNItilaster Mariner / OIM

titarine Specialist,Canadian Beaufort sea, BP NME

l'larine Authority,BP Canada E拙

涯幕RepO"【磯

⌒

Prol ect : 2361049 SES 00066315


Direct 1 281.366_2275Hobile 1 713 357.8973Richard.Simpsonρ Bp.cOm

―――――Original Message― ――――

Fron: Chris Matice [malltO:Chris Maticonstress com]Sent: Friday, Apri1 30, 2010 4:19 PMTo: Willian BurchCc: Simpson, Richattdぢ Hanbinder Pordal, Anup paulSubject: RE: BP Macondo Plune Modeling parameters

Bill:

These runs wi11 likely take lo - 12 hours each We should start with our best estimate

Thanks,chris

Christopher 〕 Matice, Ph D , p 〔 (*)PrincipalStress Engineer■ ng Serv■ ces, In(5380 Coursev■ew Dr_Ma50n, OH 45040Phone: 513-336-6701Fax: 513-336-6817chris maticqpstress comAn Emp10yee Owned Companywww stress.com

ネ Licensed in OH and Tx

―――――Original Message― ――――

Fronl: Will18m BurCh [mailtO:bburchβ wildwell com]Sent: Friday, Apri1 30, 2010 5:06 PMTo: Chris MaticeCc: Simpson, Richard; Harbinder pOrdal; Anup Paulsubject: Re: BP macOndo Plume modeling Parameters

Agreed I.ll get prelimiary 〔nterprise stack drawings forwarded ‐ the design options arestill being worked_

Rate estimations are very unkown as we discussed 5,000 bbl m■ n■ mun then run some sens■ v■tieson flow ― maybe 10,000, 20,000, 40,000, 80,000, 160,000 bbls if this is easy. If there issignificant computational tine in each run, let's discuss the best way to capture the mostvalue for the least number of runs

Bill

sent from my iPhone

On Apr 30, 20■ 0, at 4:01 P“ , ⅢChris Matice..

くChris.Maticopstress.comく mailto:chris.Maticeastress (om>〉 wrote:

Bill:

V

▼

ProDect: 2361049 SES 00066316

V


Thanks for this data. This gives us enough geometrical information to start modeling theHorizon BOP. We also have sufficient material data.

As we discussed, we will start the modeling effort at SOOO bpd flow rate, flowing vertically' from the cut 18.75 inch riser. Based on the data pnovided we Hill use a gas-to-oil ratio of

29Og SCF /b61.

Our second model will simulate the stack with the Enterprise BoP in pl.ace and with flowexisting the perforations in the riser. Please forrard dimensions of the Enterprise BOP andthe perforatlon pattern on the riser as soon as you have these available.

Thanks,Chris

Christopher l. Matice, Ph.D., P.E.(")Princ ipalStness Engineering Services, Inc.5380 Courseview Dr.I.tason, OH 45040Phone:513-336-6701Fax:513-336-6817<mailto: chris. maticeostress. com>chris. naticeostress. com<nailto: chris . maticeostress. com>An Employee O{ned Company<httD: //wt,u. stress. com>wv,r. stress. com<httD ://wuu. stress.com>

t Licensed in oH and Tx

From: !,lilliam Burch [mailto: bburchouildwel l. com]Sent: Friday, April 34, 2OlO )t37 PM

To: Chris l.laticeCc: simpson, Richardsubject: BP Macondo Plume l.lodeling Parameters

Chris,

See attached data requested for plume modeling. If you have any questions or needclarifications, please don't hesitate to call or email. Thanks very muchJ

Bi 11

william Burchwild Well Control, Inc.well control Engineer<mai lto: wburcl6,rildwe1l . com>wburcl6t{i 1dwe11 . com<mailto: wburcl$r,{i1dwel1 . c

om) I <http: //wwt,.wilduell. com>wuw. r{i ldwel1 . com<http: ,//wr{tr. wildue1l.. com)2A7.7a4.47OO phone + 281.784.4750 +ax"Experience Makes The Difference"

The contents of this message are provided for informational purposes only. t{ild Hell Control,Inc. does not guarantee the accuracy or (ompleteness of the contents and assumes no liabilitywhatsoever for loss or damage arising out of recipient's reliance on or use of theinformation provided herein. This message contains confidential information and is intendedsolely for the named recipient(s). If you are not the intended recipient, please immediatelycontact the sender by return e-mail and destroy all copies of the original, messa8e. Thankyou.

⌒

Project | 2361049 SES 00066317


V

V

V


Exhibit 27


From: Hill, Trevor Sent: Mon May 17 22: 14:51 2010 To: Wood, Douglas G Subject: FW: Pressure build-up Importance: Normal Attachments: image001.jpg

Doug

Please see point 1 as you interface with kill team ...

Regards

Trevor

From: Lockett, Tim Sent: 17 May 2010 23:00 To: Hill, Trevor Subject: RE: Pressure build-up

Trevor

I have yet to review the ppt files from Ole. I am off-site tomorrow but be in on Wednesday to meet up.

My thoughts (based on the covering email):

1) The apparent reliance in Ole's email on the 5 mbd number, which has little if no origin, is concerning. From all the different ways we have looked at flowrate, 5 mbd would appear to err on the low side. I will therefore be looking to see that the dynamic well kill modelling has been tested at higher well rates. If this

hasn't been done, yet, then could you initiate this with Ole.

2) Maybe I am being pessimistic but my first thought when I heard of the fall in pressure upstream of the BOP is that this is bad news rather than good, my thought would go to reduced restriction within the BOP. The insertion of the insertion pipe has increased back-pressure at the kink - we should have seen an

increase in pressure transmitted back to the upstream side of the BOP.

Tim

From: Hill, Trevor Sent: 17 May 201015:31 To: Lockett, Tim Subject: FW: Pressure build-up

CONFIDENTIAL BP-HZN-2179MDL04833812


From: Ole B. Rygg [mailto:[email protected]] Sent: 16 May 201017:26 To: Hill, Trevor Cc: Mix, Kurt; Thomas Selbekk Subject: RE: Pressure build-up

Hi Trevor, I have not yet, completed a report on all the findings due to the time contraints, but have instead included my findings in power point presentations.

Please find two of those enclosed.

As you can see (shut-in presentation), the last reduction in pressure drop at the weihe ad (Yesterday), will give more gas in the well and an increased gas cusion during shut-in. UNLESS, the reduction in wellhead pressure is due to an increased flow rate and the restrictions at the wellhead is giving away. This means a large hole in the BOP stack an less chance of ever being able to do a dynamic top kill, since the required rate through the stack to achieve the required pressure drop is to high.

Be aware that we are working on the 5000 bopd case. That could be too optimistic.

I am currently working on bullheading modelling for the top kill option.

Please give me a call if you want to discuss. I have a local cell phone number: . 4093923095

Regards, Ole

cid:3310015153 18375562

Dr. Ole B. Rygg Managing Director, add wellflow as Vice President, Drilling & Production, add energy group

mob +47 91 1709041 dir +4766983291 1 fax +4766983299 mail [email protected]

add wellflow as Billingstadsletta 19B 1 P.O. Box 165 1 N-1376 Billingstad 1 Norway add energy. no

This message (including any attachments) contains confidential information intended for a specific



individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this message and are hereby notified that any disclosure, copying, or distribution of this message, or the taking of any action based on it, is strictly prohibited.

From: Mix, KUli [mailto:[email protected]] Sent: 16. mai 2010 17:48 To: Hill, Trevor Cc: Ole B. Rygg Subject: RE: Pressure build-up

Please include Trevor on the distribution of the latest modeling done on the current measured wellhead pressures. Kurt

From: Hill, Trevor Sent: Friday, May 14,20108:45 AM To: Mix, KUli Subject: Pressure build-up Kurt After the discussions yesterday I am keen to see any report produced by Ole Rygg on the flow modeling and pressure build-up please. I am happy to ask him directly, but wanted to check with you first. Regards Trevor Trevor Hill E&P Enghlee6ng Technical Authority - Flow Assurance +-1-1 (0)7879 -18697-1 BP Exploration Operating Co Ltd Registered oflice: Chelisey Road, Sunbury on Thames, Middlesex, TW16 7BP, United Kingdom Registered in England and Wales, number 305943 Flow Assurance BP Intranet Site Flow Assurance in BP Connect

