U.S. District Judge Carl Barbier issued a pre-trial order governing the United States' preservation of documents in Gulf oil spill multidistrict litigation (MDL).

The order, signed Jan. 4 in federal court in New Orleans, gives instructions to U.S. agencies – including the Departments of Agriculture, Commerce, Defense, Energy, and Homeland Security, among others – for preserving documents related to the Deepwater Horizon explosion and resulting oil spill.

The order pertains to all "potentially relevant information" which is defined as all information "that is discoverable in this action to the Federal Rule of Civil Procedure 26(b)." The information is listed broadly and "includes, but is not limited to, Drafts, records, files, correspondence, reports, memos, calendars, diaries, minutes" and so on.

The order specifically states that it does not impact or change any of the U.S.' "obligation to preserve physical evidence, such as air, water and soil specimens" and evidence from the Deepwater Horizon explosion site.

The order also states that the United States is to maintain "certain databases containing Potentially Relevant Information, such as testing date, and has taken steps to insure that historical information can be restored to such databases in the event of system failures."

The order states that the preservation of documents does not apply to voicemail, instant messages, text messages or e-mails so long as the U.S. tells anyone "reasonably believed to be in possession of Potentially Relevant Information" to discontinue use of those services to discuss the information.

The order also states that by preserving information, "the United States is not conceding that such material is discoverable in this matter, nor is the United States waiving any claim of privilege."

Federal MDL 2:10-2179

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