At BP’s urging, a federal judge ordered The Daily to take down exclusively obtained video clips of deposition testimony by former CEO Tony Hayward from its website — but The Daily is refusing to comply.
Judge Sally Shushan issued the order on Tuesday, saying the release of the video may be in violation of a pretrial order stating that no “part of the video or audio record of a video deposition shall be released or made available to any member of the public unless authorized by the court.”
Hayward gave three days of deposition testimony in a London law office last month as part of a federal lawsuit filed by several states and hundreds of plaintiffs against the oil giant for damages in last year’s Deepwater Horizon oil spill.
The Daily said in a statement yesterday: “We have not removed the clips … and have no intention of doing so until we’ve had the opportunity to present our case to the court.
“The Deepwater Horizon disaster is one of the worst environmental disasters in United States history and there is tremendous public interest in the complete disclosure of all of the surrounding facts.”
The Daily published the clips on Saturday on its app and website.
The publication contends the judge’s order “is an extraordinary example of prior restraint.” While generally referring to government suppression of speech in advance of publication — a practice prohibited by the First Amendment — “prior restraint” also applies in situations where a court order prevents further publication of material.
A source close to the case told The Daily that the judge’s order followed a request from BP’s lawyers that the video be taken down.
“It was counsel for BP that approached the judge and asked for that order,” said the source. “I think there are portions that might be embarrassing to them, including the part where their client is not able to remember the names of the victims.” The reference is to a clip posted by The Daily, in which Hayward is only able to correctly recall the name of one man among the 11 who died when the Deepwater Horizon rig exploded on April 20, 2010.
Shushan also ordered YouTube.com and parent company Google to remove clips of Hayward’s deposition that were posted to the site by The Daily. The clips were still available last night.
In the video clips of Hayward’s deposition, the disgraced former CEO shows flashes of anger and remorse as he defends his handling of the disaster, which occurred while the company was on criminal probation for two prior disasters.
During one notable exchange, an attorney for Transocean, the Swiss-based company that owned the rig BP was leasing, questions Hayward about the 11 men who died in the explosion, which also caused billions of gallons of oil to spew into the Gulf of Mexico over a nearly three-month period.
Hayward strokes his chin when asked his impression of the victims’ colleagues and families, then lowers his head as he admits he can’t remember all of the victims’ names. He’s only able to correctly name one victim.
Then his expression turns defiant as attorney Stephen L. Roberts hammers Hayward about a legal pleading BP filed on the anniversary of the explosion, “claiming, among other things, that these men were callous, indifferent and grossly negligent in causing this explosion.”
Hayward responds that he had nothing to do with the filing, which was “after I left the company.” Hayward then refuses to pass judgment on BP’s action, before finally offering, “I can imagine how — how, on the anniversary, the families and particularly the wives were very upset.”
In another exchange on day one of the deposition, also posted by The Daily, plaintiffs’ attorney Robert Cunningham accuses Hayward of lying under oath when he testified to Congress that BP was conducting “a full and complete investigation” into the causes of the disaster.
Cunningham points out, “A full and comprehensive investigation … would have required the executives to investigate themselves, wouldn’t it?”
But in fact, Hayward admits that BP failed to follow its own routine investigative procedures by neglecting to look into possible mistakes made by leadership.
“We were trying to establish what was the cause of the accident. That’s what we did,” Hayward responds.
The Daily, along with at least two other news organizations, received a 906-page transcript of the deposition last week, but the judge has not asked for the return of the transcript.
Hayward’s attorneys, Thomas Kirsch II and Dan K. Webb, did not respond to The Daily’s request for comment.