New York Attorney General Letitia “Tish” James’s case Martin Act case against ExxonMobil is still in pre-trial hearings, but Justice Barry Ostrager is already losing patience. On Monday, at an initial hearing to discuss dismissing five of ExxonMobil’s defenses and other pre-trial motions, Justice Ostrager pushed the AG’s office to whittle down its lengthy witness list to a manageable number and to give ExxonMobil attorneys access to this information.
Criticizing the Office of the Attorney General (OAG) for failing to provide ExxonMobil attorneys with a “good faith” witness list for a case he described as “among the most actively litigated cases in this courthouse,” Ostrager expressed frustration that James’s office was unable to whittle down a lengthy witness list with the trial only months away. “I’m having a hard time understanding why the Office of the Attorney General can’t identify witnesses who they believe may testify four months from now.”
Justice Ostrager’s comments mirror those of ExxonMobil attorneys, who said it was “inconceivable” that James and her staff did not know who they would call to testify this close to the trial. The OAG has had plenty of time to prepare, as the initial investigation was first launched by disgraced former-Attorney General Eric Schneiderman in 2015. The defense has listed 11 people on its preliminary witness list, while the OAG has more than 30 individuals and organizations.
“The answer at this point [is] we just don’t know exactly who we’re going to call,” replied Kevin Wallace, acting chief of the Attorney General’s Investor Protection Bureau.
Justice Ostrager pushed back on this, telling the OAG that it could not simply list “Goldman Sachs,” a company with tens of thousands of employees, as a witness. Though the final list is not due until September 23rd, he requested that the office make a diligent effort to narrow the list before a conference set in two weeks.
While the exchange was encouraging for ExxonMobil, other questions discussed at the hearing remain unresolved. The central focus of the hearing were several defense motions filed by the company, which argued that the OAG had inappropriate relationships with climate activists and was selectively enforcing the Martin Act, a powerful state law the OAG has used to through millions of pages of company documents.
Justice Ostrager ruled that ExxonMobil’s selective enforcement defense could continue. This could allow the company access to the quarterly reports select OAG staffers were required to submit as part of their participation in a Bloomberg-funded fellowship program through the State Energy & Environmental Impact Center at the New York University Law School. Environmentalist billionaire Michael Bloomberg has used the center to place selected attorneys in state AGs’ offices to work on “progressive” environmental causes. Two of these attorneys are working in the office of the New York AG, and at least one of them is known to be working on the ExxonMobil case. If the judge allows the release of the quarterly reports, the public would be able to learn more about the sort of work these privately-funded attorneys are doing while wielding the power of the government.
Still, ExxonMobil did not get all it was looking for at the hearing. The justice denied the company’s request to search former AG Eric Schneiderman’s personal email account for work-related emails. The request was made after discovery revealed several emails showing that Schneiderman corresponded with third parties on issues relating to the NY OAG’s investigation on his private account before forwarding the messages to his work email. Instead of granting access to Schneiderman’s files, the justice required the OAG to provide a statement in writing giving the company confidence that any emails regarding the investigation had been properly forwarded.
He also ruled against ExxonMobil in a second email-related question, holding that it was unnecessary for the OAG to unseal emails between the office and environmental activist Matt Pawa, Mark Cuban, and other third parties.
Even after the hearing, some questions remain unanswered. The most significant of these is whether ExxonMobil will be permitted to depose someone from the OAG. Despite the fact that the OAG has deposed two ExxonMobil attorneys for several hours, it has not allowed company attorneys to depose any of its attorneys.
While the trial is still several months away, the possibility of obtaining records about the Bloomberg program may have significance beyond this case. As more information about the program has gotten out, it has garnered harsh critiques from the press and private organizations. The Wall Street Journal recently criticized the arrangement, writing that “the ethical problems here should be obvious,” calling the situation one of “state AGs for rent.” More recently, the fellowship program has become the subject of lawsuits filed against the AGs of Virginia, Maryland, and Massachusetts seeking records detailing how the lawyers were selected and whether the arrangement is even legal under state laws.