As the October 23rd trial date approaches in the New York Attorney General’s (NY AG) lawsuit accusing ExxonMobil of misleading its investors on the risks that climate change poses to its business, the AG’s office is hard at work trying to prevent the company from obtaining discovery documents that could be crucial to its defense.

After taking more than three months to provide a list of the third-party witnesses it plans to call at trial, the NY AG is now claiming that ExxonMobil should not be allowed to ask witnesses for documents related to the case because it will “impose enormous and unnecessary burdens” on witnesses. This claim—which implicitly denies ExxonMobil the right to adequately prepare its own defense—glosses over how the AG has stonewalled at every opportunity when asked to appropriately provide a list of its anticipated third-party witnesses for trial.

NY AG Complains About Delays…After Repeatedly Blowing Through Key Deadlines

Central to the AG’s argument against ExxonMobil is its claim that, because fact discovery had a deadline of May 1, 2019, ExxonMobil may not ask for additional documents related to the case. ExxonMobil’s legal counsel rightly contested this claim in a July 26, 2019 letter to the court:

“Recall that ExxonMobil first raised OAG’s failure to identify a single third party in its preliminary witness list on March 1, 2019. It took OAG more than a month to submit a wildly overbroad list of 32 nonparty individuals and institutions ‘likely to have discoverable information.’ In total, this disclosure listed 25 individuals and 7 institutions employing more than 600,000 people. ExxonMobil therefore asked OAG to resubmit a proper list of potential third-party witnesses, but OAG refused.”

That’s right: the NY AG blew past the March 1, 2019 deadline to submit its list of witnesses. What’s more, when it finally submitted a list of witnesses more than one month later, the list was overly broad – including over 30 names – leading Justice Ostrager to criticize the AG‘s office: “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.” It took until June 26, 2019—nearly two months after the court-mandated fact discovery deadline of May 1—for the AG to finally submit a list of 13 witnesses it will likely ask to testify during the trial.

The NY OAG’s claim that “ExxonMobil’s document requests will inevitably result in delays, threatening the trial schedule,” is particularly egregious given the AG’s own behavior in the case. The NY AG dragged its feet in providing an accurate and transparent list of third-party witnesses. Given the delay in providing a witness list, ExxonMobil has suggested that the NY AG was deliberately trying to delay proceedings over the company’s clear indication that it is eager for the trial to take place as soon as possible.

The NY AG Has a History of Evading Transparency and Discovery

This is not the first time that the NY AG has attempted to block document discovery requests.  As EID Climate has previously reported, in April 2019, the AG tried to permanently seal third-party communications with an unnamed environmental litigator. However, as EID Climate pointed out, ExxonMobil has a right to correspondence between the AG and outside attorneys, especially because those communications may help establish the fact that outside and biased interests are a driving force behind the office’s investigations and litigation.

Earlier, in March 2019, the AG tried to fight Justice Barry Ostrager’s ruling that “ExxonMobil is privileged to pursue discovery on its defenses,” refusing to comply with discovery requests from ExxonMobil that would support the claim that the AG pursued its investigation of the company in bad faith. As EID Climate reported:

“A prime example of New York’s attempts to stonewall the company is their failure to provide documents regarding their communications with third parties. According to one letter, ExxonMobil’s lawyers had phone call with the OAG in November during which the OAG denied conducting any ‘Third-Party Interviews,’ stating that they ’emphatically and unequivocally informed ExxonMobil that no such interviews had taken place.’ However, in a letter written just two weeks later, the OAG contradicted its previous claim, noting that ‘OAG did communicate with third parties in the course of the investigation’ and that it would ‘respond appropriately to any document requests that Exxon propounds’ seeking ‘notes associated with those communications.’ However, when ExxonMobil asked for the identities of third-parties the OAG communicated with, the OAG claimed that the requested information was shielded by various privileges and protections from disclosure – without articulating how ‘the mere identity of persons or entities it communicated with constitutes privileged information.'”

With less than 90 days until trial, it’s time for the NY AG to stop stonewalling. A fair trail requires allowing ExxonMobil to pursue discovery, as it’s entitled, and prepare for its defense.