Initial federal court hearing in BP oil spill is this afternoon


The outline of oil spill litigation, which opens this afternoon in federal court in New Orleans, is beginning to take shape.

Attorneys for each side in “In Re: Oil Spill by the Oil Rig ‘Deepwater Horizon’ in the Gulf of Mexico, on April 20, 2010” submitted filings this week in how they would like the case before Judge Carl Barbier to go.

The plaintiffs attorneys would like to get as much information as possible right away, and are angling for a quick schedule that would bring cases to trial next year.

Defense attorneys, meanwhile, are pushing to slow things down and limit their opponents to information that’s already been produced for Coast Guard and Congressional inquiries before getting deep into discovery. They question whether many of the would-be plaintiffs even belong in the case, and say those questions should be resolved before getting into the guts of the case.

Today’s 2:30 p.m. hearing will focus on how to manage the case, but the proceedings are expected to be jammed. To make room for the hundreds of attorneys and any members of the public who want to attend, the hearing has been moved from Barbier’s regular courtroom to room C501, which is larger.

Plaintiff attorneys, led by Stephen Herman and James Parkerson Roy, would like documents, reports, analyses, leases, contracts, protocols, organizational charts, environmental samples, and all agreements and communications between BP and Feinberg Rozen, the law firm of Gulf Coast Claims Facility coordinator Kenneth Feinberg.

They would like the defendants to produce this information by December 1, and they would like depositions to begin in January.

They also propose an ambitious schedule for test trials on the various issues in the case, which help set benchmarks for settlement by vetting the issues, testing liability, and testing what injuries are worth.

They say they will file a master complaint by December 15, and by March 1, the plaintiff attorneys say they will identify four cases brought under the Oil Pollution Act dealing with liability and damage issues for the court to schedule for trial. By June 1, they propose to identify one wrongful death case and one “non-physical injury” case to move forward, and two general maritime cases on liability and damage issues. By Sept. 1, they say the court should hold a trial on whether Transocean can limit its liability.

A committee of defense attorneys made up of representatives of well lease holders BP, Anadarko Petroleum Corp. and MOEX USA Corp.; rig owner Transocean Ltd.; blowout preventer manufacturer Cameron International Corp.; cementing company Halliburton Energy Services Inc.; dispersant manufacturer Nalco Co; Dril-Quip Inc.; Hyundai Heavy Industries Co. Ltd.; Weatherford U.S. LP; and M-I LLC, have a very different vision for how the litigation should go.

“Defendants’ counsel have met with Plaintiffs counsel on several occasions in an effort to reach a join proposal regarding the Initial Case Management Order and have agreed on many terms and conditions. However, the parties disagree on the critical issue of the timing and scope of discovery and some other important issues,” they wrote.

The companies urged the court to allow time for all the various suits in courts around the country to be transferred to new Orleans, and then assess some key legal issues before moving forward with discovery, such as whether a large number of plaintiffs should even be before the court.

They say that people seeking redress for economic losses related to the oil spill under the Oil Pollution Act of 1990 have to go through the Feinberg claims process before they can file a lawsuit. Depositions and discovery should not begin until key legal issues have been resolved, they said, noting that plaintiff attorneys already have access to hundreds of thousands of pages of information that was made available to Congress and the Marine Board of Investigation. They say that the plaintiffs should be limited to 20 master requests for documents.

The defendants agree that the plaintiffs should file their master complaint by December 15, but give themselves two more weeks – until the end of January – to answer. They say that depositions shouldn’t begin until April, and that the Transocean limitation of liability proceeding should be held in late 2011 or early 2012. Any discussion about detailed discovery and test trials on personal injury, wrongful death and economic losses shouldn’t begin until January, they said.

“These matters should be resolved prior to beginning headlong down the path of discovery . . . plaintiffs’ proposed CMO (case management order) goes too far at this early stage of the litigation,” they wrote.

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
Cooper Law Firm

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