Scientists at the Woods Hole Oceanographic Institution released emails Friday to BP PLC on research related to the 2010 Gulf of Mexico spill in accordance with a court order.

The rate at which oil spilled has become key in the litigation against BP, with the company liable for billions of dollars for pollution damage under the Clean Water Act. The exact amount of the fine is yet to be determined, and will depend on the spill rate and any findings that BP willfully underestimated it.

The U.S. government has stepped up its criminal probe, with the Justice Department looking into whether BP executives lied about the spill rate in their congressional testimony, as reported in the Wall Street Journal (Greenwire, May 29).

Meanwhile, lawyers for BP have attacked the officially accepted spill rate, set by the federal government and Woods Hole researchers.

"That's where the rubber meets the road here, when it comes time to assess the final fees and ultimate liability," said Aaron Viles, deputy director of the Gulf Restoration Network. "BP's aim out of this is to diminish their liability, and that's where we are going to see a lot of focus."

The Woods Hole institute was contracted by BP and the Coast Guard to determine the flow rate of the oil spill. The effort resulted in two papers, published in the peer-reviewed Proceedings of the National Academy of Sciences, that estimated the spill rate at 57,000 barrels a day from April 20 to July 15, when the well was capped. This added to a total release of 4.9 million barrels.

Institute researchers developed an acoustic-based technology to calculate this rate, because the depth of the Macondo well made traditional spill calculations imprecise. The rate is similar to the rate calculated by the U.S. government of 56,000 barrels a day.

BP's internal measurement was a rate of 240 barrels a day to 38,000 barrels a day.

The ongoing lawsuit against BP does not directly involve the institute, but the oil company had requested access to the scientists' research material to better understand the findings. Woods Hole turned over documents and primary data that could be used to reconstruct the study, including hours of videotaped footage, said Laurence Madin, director of the institute.

BP subsequently subpoenaed the scientists' internal communications, including emails, initial drafts and notes, which the institute handed over Friday.

Madin said BP's lawyers have alleged in legal documents that there could be irregularities in the scientific research based on correspondence the company has already subpoenaed from other parties directly involved in the court case. That could be the reason behind BP's fishing expedition, he said.

"I'm told by the scientists involved there was nothing improper or devious, there was only an honest exchange of views," Madin added. "But as you know, email can be a fairly informal medium, and sometimes people express themselves without great precision."

The worry is that the emails could be taken out of context in a manner similar to the Climategate scandal, in which emails between researchers at the University of East Anglia were abused by climate skeptics to suggest climate change research is invalid. Numerous panels have since acquitted the researchers of misconduct.

"We've seen enough other examples in recent years of the misuse of information like that, so there is some reason for concern," Madin said.

The Woods Hole scientists directly involved in the research were not available to comment given that they might need to testify in court at a future date, but they published an op-ed in the Boston Globe on Sunday expressing concern.

"In reviewing our private documents, BP will probably find e-mail correspondence showing that during the course of our analysis, we hit dead-ends; that we remained skeptical and pushed one another to analyze data from various perspectives. ...

"Such interchange does not cast doubt on the strengths of our conclusions; rather, it constitutes the typically unvarnished, yet rigorous, deliberative process by which scientists test and refine their conclusions to reduce uncertainty and increase accuracy."

Robert Wiygul, a Mississippi-based lawyer who is representing plaintiffs against BP, said the subpoena of records from third parties with technical knowledge, such as Woods Hole in this case, is not unusual. The court will give the researchers space to defend any emails and explain their context, so it would be difficult for BP to prove misconduct, he said.

However, the lack of protection given to the scientific deliberative process is unfortunate, he said. While lawyers during their deliberative process and government agencies during rulemaking are protected from discovery under law, the same privilege is not afforded to scientists.

"It's a significant disincentive to the kind of truth-seeking inquiry you'd want," Wiygul said.

The institute scientists expressed similar concern against this lack of protection given to the research community in their op-ed: "It is the lack of legal protection that has us concerned."