IN DEFIANCE OF JUDGE’S RULING IN CLIMATE CASE, NEW YORK ATTORNEY GENERAL REFUSES TO COMPLY WITH DISCOVERY REQUESTS
https://eidclimate.org/in-defiance-of-judges-ruling-in-climate-case-new-york-attorney-general-refuses-to-comply-with-discovery-requests/MARCH 12, 2019
The New York Attorney General’s Office (OAG) is refusing to comply with ExxonMobil’s discovery requests even after the New York Supreme Court ruled the company could proceed with discovery related to the AG’s investigation of its climate change disclosures. The company is seeking documents that would support its allegation that the OAG is pursuing its investigation in bad faith.
Since the OAG initiated its investigation into ExxonMobil more than three years ago, its arguments have shifted multiple times, as each of the allegations of fraud has lacked evidence. However, in addition to highlighting the questionable legal agenda, recent court filings demonstrate how the OAG has methodically denied ExxonMobil’s discovery requests in an effort to delay the exercise, possibly in the hope that the OAG can convince the judge to dismiss the company’s defenses.
Right to Discovery Upheld by New York Supreme Court
Justice Barry Ostrager ruled in February that the OAG could file a motion to dismiss ExxonMobil’s defenses, but that in the meantime, “Exxon Mobil is privileged to pursue discovery on its defenses.â€
“Civil litigants may not avoid their discovery obligations by challenging the legal viability of an adversary’s claims,†ExxonMobil writes in one letter to the OAG. “Therefore, ExxonMobil maintains that OAG’s objections are improper to the extent they are predicated on a legal challenge to ExxonMobil’s affirmative defenses. OAG may not credibly withhold documents responsive to the Affirmative Defense Requests.â€
The OAG’s efforts to hinder ExxonMobil’s right to discovery stand in stark contrast to the actions of the defendant. For instance, the OAG claims that documents requested by ExxonMobil are protected by various privileges, “without identifying each document withheld and the basis for invoking any privilege,†according to one letter from ExxonMobil. In another letter, the company writes that the OAG’s reluctance to turn these documents over suggests that certain privilege assertions appear to be “facially dubious.â€
Conversely, ExxonMobil has provided the OAG with more than 2,800 pages of privilege logs. In fact, throughout the entirety of this investigation, ExxonMobil has turned over more than four million pages of documents; so many pages that they would stand taller than the Empire State Building if stacked on top of each other....