A Manhattan Supreme Court judge has denied attorneys for Exxon Mobil Corp. access to former New York Attorney General Eric Schneiderman's personal email account but agreed to consider a request from the company to depose a representative of the state Attorney General's Office.

Manhattan State Supreme Court Justice Barry Ostrager, at a hearing this week, dismissed two defenses offered by Exxon Mobil, which had accused the Attorney General's Office of official misconduct and acting with a conflict of interest.

The litigation is far from over; attorneys for Exxon Mobil will now work toward preparing a case challenging the merits of the state's lawsuit against them. They're set to go to trial in October.

Attorney General Letitia James said in a statement Friday that she was happy with Ostrager's decision.

“I am happy with the judge's decision, and look forward to continuing to make our case in court,” James said.

The company alleged that Schneiderman, while in office, used his personal email account to conduct official business related to his office's investigation of the company. Attorneys for Exxon Mobil made the claim after they obtained a series of communications relevant to the litigation that Schneiderman had forwarded to his government account from his personal email.

Those emails were obtained by Exxon Mobil through discovery, or material exchanged as part of the litigation. They had argued that broader access to Schneiderman's personal email account may have helped support their defense of official misconduct on his part.

The company suggested in recent filings that there may be additional communications on Schneiderman's personal email account that he chose not to forward and preserve. Those communications could have shown he was influenced by environmental activists to trigger an investigation and bring litigation against the company.

Ostrager ruled that, instead of unfettered access to Schneiderman's account, Exxon Mobil would be provided with a signed declaration from Schneiderman certifying that anything relevant on the account was made available to them through discovery.

“The Attorney General is going to make a representation to you that anything that referred or related to this investigation that was on Mr. Schneiderman's personal email account has been made available to you,” Ostrager said, according to a transcript of the hearing.

Justin Anderson, a partner at Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan, argued on behalf of Exxon Mobil for access to Schneiderman's email account. He noted that Schneiderman had received emails to his personal account from Matthew Pawa, a partner at Hagens Berman Sobol Shapiro, and an outspoken critic of Exxon Mobil.

“We can see that he was communicating with Mr. Pawa through that account and that Mr. Pawa has expressly stated that what he has been trying to do is advocate and encourage State Attorneys General to misuse their powers to limit First Amendment rights,” Anderson argued.

The Attorney General's Office, represented by Assistant Attorney General Marc Montgomery, has argued that Exxon Mobil's claims are overstated. They've said Schneiderman did not use his personal email account for government business, and even forwarded any relevant emails to his government account so they would be legally preserved. That's how they were obtained through discovery.

“They do not show Mr. Schneiderman conducting Attorney General business from his personal email account,” Montgomery said. “The bulk of them are articles that were forwarded to him that he somehow thought might be useful to distribute to other people at the AG's office so he forwarded them to his work account.”

Ostrager tabled a decision on whether to allow Exxon Mobil's attorneys to depose someone from the Attorney General's Office ahead of trial. The company wanted someone to testify on the factual basis of the claims in the lawsuit, which they argued have shifted over time.

Daniel Toal, another partner at Paul Weiss on the case, said during arguments this week that, despite several interrogatories and documents exchanged with the Attorney General's Office, they were still unclear about the actual foundation of the litigation against them.

“In a seven-hour deposition I'll have the opportunity to ask hundreds of questions to pin the Attorney General down on the factual basis for their claims, which have been shifting over time, as Your Honor knows,” Toal said.

Ostrager agreed to consider three-page letters on the request from attorneys on both sides of the litigation. Those will be due sometime next week, after which he'll decide whether to allow the deposition.

Exxon Mobil had also made claims of selective enforcement against them by the Attorney General's Office. Ostrager allowed the company to keep that defense, which attorneys will likely make a central part of their case going forward.

Former New York Attorney General Barbara Underwood first brought the lawsuit against Exxon Mobil last October after a three-year investigation by the office. The suit alleged the company misled investors about the risk posed to its business by more stringent regulations promulgated to mitigate the effects of climate change.

Attorneys for Exxon Mobil and the Attorney General's Office are scheduled to meet for a status conference in the case later this month.

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