By Karen Savage
ExxonMobil is attempting to discourage witnesses from testifying against it in New York’s climate fraud suit, according to documents filed last week in New York Supreme Court.
The oil giant has demanded third-party witnesses provide documents along with depositions in the case, which the New York attorney general’s office says is imposing “disproportionate burdens” on those witnesses. Kevin Wallace, an attorney representing New York Attorney General Letitia James, submitted a letter to the court objecting to the document demands last week.
The New York attorney general’s office filed a lawsuit against Exxon last year for allegedly defrauding investors for years by deliberately downplaying the climate risks to its business and long-term financial health. The case is scheduled for trial on October 23.
The document requests serve Exxon’s “strategy of discouraging these third parties from testifying by maximizing the burden of document production,” Wallace wrote in a letter submitted last week to Judge Barry Ostrager. Wallace also said Exxon is misleading the witnesses regarding an agreement reached by both parties during a June hearing.
According to Wallace, the AG’s office agreed during that hearing to allow Exxon to take relatively short – up to three-hour—depositions from key third-party witnesses. They include Daniele Fugere, president of As You Sow, a nonprofit that advocates for corporate responsibility through shareholder advocacy; Natasha Lamb, a managing partner with Arjuna Capital, an investment firm that specializes in sustainable investing; and Michael Garland of the New York City Comptroller’s Office.
Two days after the hearing, Exxon sent letters to the witnesses informing them that if they were to testify, they would need to submit documents in addition to the depositions.
“In face, at no point—either in conversation with counsel or in colloquy with the court on June 28—did ExxonMobil raise the issue of document production.” Wallace wrote.
Wallace said the AG’s office was not copied on the letters, but was informed by the witnesses that they had received them. After the AG’s office informed Exxon that the requests were “misleading and improper,” Exxon asked the court to compel witnesses to turn over the documents.
In the letters, attorneys for Exxon reminded witnesses that they cannot be compelled to testify and asked if they would still make themselves available for the trial.
The AG’s office said as a result of the document request, some witnesses, including Rakhi Kumar of State Street Global Advisors, have declined to voluntarily testify. The AG’s office has requested the court issue a subpoena to compel Kumar to testify.
Yale law professor Douglas A. Kysar, who is not involved in the suit, said the document request feeds into Exxon’s narrative of an “anti-carbon conspiracy” involving liberal academics, foundations, non-governmental organizations, and plaintiffs’ lawyers. The request includes “all communications concerning ExxonMobil between you and Matthew Pawa, Peter Frumhoff, Naomi Oreskes, Geoffrey Supran, the Rockefeller Family Foundation, Sharon Eubanks, Hagens Berman Sobol Shapiro LLP, Richard Heede, Sher Edling, LLP, 350.org, or the Union of Concerned Scientists.”
“The third party witnesses won’t necessarily take this request literally as a threat by Exxon—but they will have to consider the vast expense and inconvenience that would follow from being dragged into the ‘anti-carbon conspiracy’ narrative,” Kysar said.
The attorney general’s office did not immediately respond to a request for comment.
Wallace wrote that discovery in the case concluded on May 1 and in addition to “mischaracterizing” the parties’ agreement, the requests are overly broad and subject to negotiation, which he said “will inevitably result in delays, threatening the trial schedule.”
Exxon did not immediately respond to a request for comment, but in a July 30 letter to the judge said “document discovery goes hand-in-hand with depositions.” The company contends that the AG’s office is attempting to draw “an arbitrary line in the sand” by not allowing the document requests.
“The line between ‘normal legal maneuvering’ and ‘intimidation-style tactics’ is a fine one that is almost always pushed by litigants in high-stakes battles like this one,” Kysar said.
“Still, the timing and the breadth of the document request by Exxon’s lawyers raises even my cynical eyebrows.”