The personal email account of former New York Attorney General Eric Schneiderman is the subject of the latest dispute in the state’s lawsuit against Exxon Mobil, which is accused of misleading investors about the risk posed to its business by climate change regulations.
Attorneys for Exxon Mobil claimed in a new letter to Manhattan Supreme Court Justice Barry Ostrager that Schneiderman used his personal email account to conduct official business related to his office’s investigation into the company.
They’re now seeking broader access to Schneiderman’s personal account to see if there are any relevant communications that could be used to support their defense against the state’s litigation. Attorneys from the office of current New York Attorney General Letitia James are fighting the request.
Exxon Mobil said in the letter that it has identified 10 email chains relevant to the litigation that Schneiderman had forwarded from his personal email account to his official government account. Those were obtained from the state Attorney General’s Office through discovery, or material exchanged between parties as part of the litigation.
The company is now asking the Attorney General’s Office for access to Schneiderman’s entire personal email account and to search for any other communications that may be relevant to the litigation. There may be emails on that account that Schneiderman did not end up forwarding to his government account, they argued.
Those hypothetical messages could be used to support Exxon Mobil’s case against the litigation, which it has argued was rooted in selective enforcement against the company and misconduct on the part of Schneiderman. Exxon Mobil and others have said Schneiderman was influenced by environmental activists to trigger an investigation and bring litigation against the company.
Attorneys for Exxon Mobil wrote that the emails they’ve already obtained through discovery support that defense, and may be the “tip of the iceberg” on other communications to help their case. Exxon Mobil is represented by Theodore Wells, Dan Toal, and Justin Anderson, all partners at Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan.
“These emails show that Mr. Schneiderman used his Personal Account to communicate with special interests urging the use of government power to coerce ExxonMobil into changing its position on climate policy,” they wrote in the letter. “And they are likely just the tip of the iceberg. Additional documents doubtless exist in the Personal Account that Mr. Schneiderman never bothered to forward to his Work Account.”
But the Attorney General’s Office argued in its own letter responding to the request this week that the remaining contents of Schneiderman’s personal email account were both irrelevant and inaccessible.
Schneiderman had already preserved the relevant email chains by forwarding them to his government account, the Attorney General’s Office argued. At least two of the email chains were also either unsolicited by Schneiderman or started out as personal conversations between him and the sender, according to the letter.
“Government employees are not deemed to violate document preservation policies simply by receiving an email that is potentially relevant to work,” the letter said. “This would be impractical, as one cannot control what he or she receives.”
Schneiderman followed the required step of forwarding those emails to his government account within one day of receiving them, the Attorney General’s Office wrote. They also noted more than once in the letter that Schneiderman is no longer an employee of the office. He resigned about a year ago amid allegations of sexual misconduct. He was not criminally charged.
“Ordering the [Office of the Attorney General] to search and produce emails from the personal account of a former employee—indeed, a former employee who was opposing counsel in the underlying investigation—with no evidence that any relevant emails on the personal account were not properly preserved, is entirely unwarranted,” the letter said.
The letter from Exxon Mobil was accompanied by two email chains it referenced to back up the request. The contents of those emails were fully redacted, but the company’s attorneys did reveal who they were from.
One was from attorney Matthew Pawa, a partner at Hagens Berman Sobol Shapiro in Boston. Pawa has previously been involved in litigation against Exxon Mobil, which described him as “an avid ExxonMobil detractor” in their letter. Pawa was involved, for example, in New Hampshire’s lawsuit against the company, which resulted in a $236 million jury verdict over groundwater pollution in 2015.
Pawa emailed with Schneiderman in 2016, according to Exxon Mobil, and briefly discussed an investigation into the company.
“This exchange highlights the influence of private interests on OAG’s investigation of ExxonMobil,” the company wrote in its letter to Ostrager.
Another email came months later from Mark Cuban, a well-known investor and owner of the NBA’s Dallas Mavericks. The nature of that discussion is unknown, but the Attorney General’s Office wrote that it started as a personal exchange and evolved from there.
Schneiderman was apparently contacted by the Attorney General’s Office to discuss his personal email account during the discovery phase of the Exxon Mobil lawsuit, which was announced after he left office.
According to a different filing from the Attorney General’s Office, Schneiderman confirmed that he had complied with all of his discovery obligations and did not have any other communications on his personal email account that would be relevant to support Exxon Mobil’s defense. He also claimed that he didn’t use his personal email account for government business.
That account is part of another recent request from Exxon Mobil to depose employees within the state Attorney General’s Office, which it has claimed has been stingy with discovery. Attorneys for the company wrote in a filing earlier this month that the deposition would allow them to ask about the emails from Schneiderman’s personal email account, including whether all relevant communications were collected.
The deposition would also seek information about the factual bases for the allegations against Exxon Mobil, as well as the office’s relationships and communications with third parties. They argued in the filing that they wouldn’t be able to get that kind of information any other way and that the state’s deposition of Exxon Mobil’s attorneys in 2017 would merit the testimony.
“ExxonMobil seeks this deposition for a legitimate purpose: to efficiently acquire the information it needs to clear its name, which OAG has sullied with its investigation and Complaint,” the filing from Exxon Mobil said.
But the Attorney General’s Office has argued that Exxon Mobil doesn’t need to depose employees within its office to gather the information it’s seeking, and that the testimony wouldn’t benefit its defense, anyway. The company could have deposed up to nine people from third parties instead of government employees, the state argued.
“ExxonMobil does not and cannot show that the testimony it seeks is material and necessary, that it has a good faith basis for seeking the testimony, and that it cannot obtain the information from another source,” the Attorney General’s Office wrote.
Attorneys for ExxonMobil and representatives from the Attorney General’s Office deferred comment to their filings with the court.
Both sides are expected to present arguments on those requests, as well as the state’s motion to reject Exxon Mobil’s defenses against the litigation, in Manhattan next month.