NY AG's Office Accuses Exxon Mobil of Trying to Discourage Witnesses, Delay Trial
Attorneys for Exxon Mobil rejected those claims in a new court filing this week, saying they’re only trying to prepare their case for trial and don’t intend on asking for a later trial date.
August 06, 2019 at 05:02 PM
6 minute read
The New York Attorney General’s Office has accused Exxon Mobil of attempting to discourage witnesses from offering testimony as part of the state’s lawsuit against the oil and gas company, and trying to delay the trial date scheduled for the litigation later this year.
Attorneys for Exxon Mobil rejected those claims in a new court filing this week, saying they’re only trying to prepare their case for trial and don’t intend on asking for a later trial date.
The disagreement is over seven third-party witnesses that Exxon Mobil has, in recent weeks, attempted to depose and seek documents from to prepare their case. Those witnesses, which are expected to testify in support of the state’s litigation, weren’t identified until late June.
The Attorney General’s Office had agreed to allow attorneys for Exxon Mobil to depose those witnesses to learn what they would testify at trial. Those depositions were planned to last a few hours each and focus on one issue, according to the Attorney General’s Office.
Exxon Mobil then sent a letter to the third-party witnesses, or their representatives, seeking both testimony and documents. The Attorney General’s Office wrote in a letter to the court last week that they hadn’t agreed to allow document discovery from those witnesses.
“In fact, 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,” the Attorney General’s Office wrote. “Nonetheless, ExxonMobil continued pressing third-party witnesses for documents by serving or notifying the OAG of its intent to serve subpoenas to these witnesses.”
Attorneys for the state asked Manhattan Supreme Court Justice Barry Ostrager to immediately bar the company from continuing to seek those documents, according to the filing.
The letter from Exxon Mobil had asked the third-party witnesses to confirm whether they planned to testify at the trial, which is scheduled for October. Attorneys for Exxon Mobil wrote that if they were planning to testify voluntarily, the company would be asking for documents and testimony in the coming weeks.
The Attorney General’s Office wrote that the letter was intentionally framed to discourage witnesses from volunteering to testify. One has already decided not to voluntarily testify, they said.
“ExxonMobil’s strategy of discouraging these third parties from testifying by maximizing the burden of document production is apparent, and is far different from the agreement presented at the June 28 conference,” the Attorney General’s Office wrote.
Attorneys for the state also wrote that, with the deadline for pre-materials fast approaching in the case, they wouldn’t be surprised if Exxon Mobil later asked for further delays in the trial. They made a dig at the company’s attorneys for not pursuing other documents when discovery in the case was still open.
“ExxonMobil was well aware of the existence of key third parties discussed in the complaint and the potential third party witnesses disclosed in April,” the Attorney General’s Office wrote. “Instead of seeking discovery from those witnesses, ExxonMobil spent fact discovery pursuing conspiracy theories about the OAG’s investigation.”
That part of the state’s letter appeared to refer to Exxon Mobil’s pursuit of the personal email account of former Attorney General Eric Schneiderman, who they’ve argued was influenced by outside interests to launch a targeted investigation into the company. They also wanted to depose a representative of the Attorney General’s Office about the investigation.
Attorneys for Exxon Mobil fired back at the Attorney General’s Office in a new filing this week, saying the situation was the state’s own doing. They weren’t given an amended list of third-party witnesses until late June, according to the company’s attorneys.
Exxon Mobil is represented by Theodore Wells, Dan Toal, and Justin Anderson, all partners at Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan.
They argued in the new filing this week that, if anyone was acting improperly, it was the Attorney General’s Office for failing to disclose the third-party witnesses earlier in the litigation. Without knowing who those individuals were before the close of fact discovery in May, they had no way of seeking documents or testimony from those individuals beforehand, they said.
“OAG has only itself to blame for the timing of these document requests,” Exxon Mobil wrote. “OAG dragged its feed until almost two months after the close of fact discovery when—for the first time—it belatedly and begrudgingly disclosed its preliminary list of third-party witnesses.”
On the wording of their letter to the third-party witnesses, attorneys for Exxon Mobil said nothing they wrote should be interpreted as attempting to discourage witnesses from testifying voluntarily. They were simply informing the witnesses that they won’t have to seek discovery from a witness that’s not planning to testify at trial, the company wrote.
“Contrary to OAG’s assertion, ExxonMobil’s communications with third parties were entirely appropriate,” Exxon Mobil wrote. “It should not be a controversial proposition that ExxonMobil need not seek discovery from, and thereby inconvenience, a third-party witness who will not testify at trial.”
Exxon Mobil also said it has no plans to delay the trial date set for the case. Attorneys for the company wrote that they’re willing to negotiate the scope of its requests to third-party witnesses to prevent any delays so they can receive any documents as soon as possible and finish depositions by early October.
“The company is eager to vindicate itself in court and remains committed to completing third-party discovery as expeditiously as possible and well before trial,” Exxon Mobil wrote.
New York filed suit against Exxon Mobil last year, alleging in the complaint that the company misled investors about the risk posed to its business by more stringent regulations promulgated to mitigate the effects of climate change.
A trial on the matter is set for Oct. 23 in Manhattan.
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