1899 L Street, NW
Suite 200
Washington, D.C. 20036
(202) 508-1100   Phone
(202) 861-9888   Fax
Jay Ward Brown
(202) 508-1136
jbrown@lskslaw.com

November 23, 2016
BY EMAIL AND FIRST CLASS MAIL
Justin Anderson, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
2001 K Street, NW
Washington, DC 20006
janderson@paulweiss.com
Re:

Non-Party Subpoenas to the Union of Concerned Scientists
and Dr. Peter C. Frumhoff in Exxon Mobil Corp. v. Healey,
No. 4:16-cv-469-K (N.D. Tex.)

Dear Mr. Anderson:
We represent the Union of Concerned Scientists (“UCS”) and its Director of Science &
Policy, Dr. Peter C. Frumhoff, in connection with the above-referenced subpoenas. Pursuant to
Rule 45(d)(2)(B) of the Federal Rules of Civil Procedure, UCS hereby responds to the subpoena
served on it on November 9, 2016, and Dr. Frumhoff hereby responds in part and objects in part
to the subpoena served on him on November 9, 2016, each of which seeks the same documents
and materials from them as non-parties in the referenced civil action.
Background
As you may be aware, UCS was founded more than forty years ago by faculty and
students at the Massachusetts Institute of Technology “[t]o initiate a critical and continuing
examination of governmental policy in areas where science and technology are of actual or
potential significance.” See “Founding Document: 1968 MIT Faculty Statement,” Union of
Concerned Scientists.1 Among other things, UCS defends scientists from political interference in
their work and from harassment by public officials and private industry, and it collaborates with
over 17,000 scientists and technical experts to develop and advance solutions to the world’s most
pressing problems.
Dr. Frumhoff is UCS’s Director of Science & Policy and chief scientist of its climate
initiative. He has published and lectured on topics including climate change impacts and climate
science and policy. Dr. Frumhoff serves on the Advisory Committee on Climate Change and
1

A copy of this document is available at http://www.ucsusa.org/about/founding-document-1968.html.

 Justin Anderson, Esq.
November 23, 2016
Page 2
Natural Resource Science at the U.S. Department of the Interior, the board of directors of the
American Wind Wildlife Institute, and the steering committee for the Center for Science and
Democracy at UCS, and he is an associate of the Harvard University Center for the Environment.
In July 2015, UCS released a report titled, “The Climate Deception Dossiers: Internal
Fossil Fuel Industry Memos Reveal Decades of Corporate Disinformation,” which documents a
coordinated, decades-long campaign by certain fossil fuel companies to distort climate science
findings and confuse the public about the risks of climate change.2 According to that report,
ExxonMobil and other companies had learned of the serious risks of climate change by 1988 at
the latest. The report concluded that the fossil fuel companies then publicly denied or minimized
the risks and secretly funded purportedly independent, contrarian climate research.
In November 2015, New York Attorney General Eric Schneiderman opened an
investigation into whether ExxonMobil had misled its investors about the risks of climate
change. ExxonMobil was served with a subpoena as part of that investigation. See First Am.
Compl., Exxon Mobil Corp. v. Healey, No. 4:16-cv-469-K (N.D. Tex. Nov. 10, 2016), ECF No.
100, at ¶ 20. The following year, Massachusetts Attorney General Maura Healey announced that
she was joining New York’s investigation into ExxonMobil, and her office served its own civil
investigative demand (“CID”) on ExxonMobil in April 2016. See id. ¶¶ 3, 69.
ExxonMobil initiated the present lawsuit against Attorney General Healey in June 2016
and subsequently added Attorney General Schneiderman as a defendant. ExxonMobil claims in
part that defendants’ investigation is threatening the company’s First Amendment rights by
“(1) targeting speech that the [defendants] perceive to support political perspectives on climate
change that differ from their own, and (2) exposing ExxonMobil’s documents that may be
politically useful to climate activists.” Id. ¶ 88. While orders recently entered in the underlying
litigation indicate that the parties are currently engaged in discovery regarding the court’s
jurisdiction over the action, on November 9, 2016, ExxonMobil served the subpoenas at issue on
non-parties UCS and Dr. Frumhoff.
Subpoena to UCS
In the form in which the subpoena was served upon UCS, UCS hereby responds that it
has no responsive documents or materials whatsoever in its possession, custody, or control. The
subpoena to UCS “calls for the recipient to produce the documents described . . . in accordance
with the accompanying ‘Definitions’ and ‘Instructions.’” Subpoena to UCS Ex. A at 1. Under
the heading “Definitions,” it states that “‘You,’ ‘Yours,’ and/or ‘Yourself’ mean Matthew F.
Pawa, as well as Your employees, agents, representatives or other persons acting or purporting
to act on Your behalf.” Id. ¶ 21 (emphasis added). Under the heading “Instructions,” it then
provides that “[t]hese requests call for the production of responsive documents within Your
2

A copy of the report is available at http://www.ucsusa.org/global-warming/fight-misinformation/climatedeception-dossiers-fossil-fuel-industry-memos.

 Justin Anderson, Esq.
November 23, 2016
Page 3
possession, custody, or control (including those on email servers not associated with the Union
of Concerned Scientists), regardless of whether those documents were generated and/or
maintained by the Union of Concerned Scientists.” Id. ¶ 34. The subpoena further notes that
“[t]he foregoing Definitions and Instructions also apply to the Definitions and Instructions
themselves.” Id. ¶ 35. Mr. Pawa is not an employee, agent, or representative of UCS and UCS
therefore has no control over, and no duty to produce documents that may be within Mr. Pawa’s
possession, custody, or control. See, e.g., In re New England Compounding Pharmacy, Inc.
Prod. Liab. Litig., 2013 WL 6058483, at *7 (D. Mass. Nov. 13, 2013) (“Rule 45 explicitly limits
the scope of production. Therefore, the respondents need only produce responsive documents
within their possession, custody, or control. To the extent that a respondent does not have
responsive documents within its possession, custody, or control, it may simply state so.”)
(citation omitted).3
Subpoena to Dr. Frumhoff
As an initial matter, Dr. Frumhoff does not object to producing to ExxonMobil copies of
any documents responsive to the 13 individual requests set forth in the subpoena (the
“Requests”) that have been published (i.e., that have been released to the public) by him or by
UCS. To the best of his current knowledge and belief, all such documents are available freely to
members of the public at UCS’s searchable website, www.ucsusa.org. Given that these
documents are equally accessible to ExxonMobil as to Dr. Frumhoff, and given the relative
burdens, Dr. Frumhoff respectfully suggests that ExxonMobil should identify specifically which
of these publicly-available documents it seeks to have Dr. Frumhoff authenticate by affidavit and
Dr. Frumhoff will then do so to the extent that he is able.
Additionally, Dr. Frumhoff represents that, to the best of his present knowledge and
belief, he has no materials in his possession, custody, or control that would be responsive to
Requests No. 3 (documents that would identify sums paid to Al Gore for appearance at a Green
20 press conference), 4 (documents concerning the Green 20’s Common Interest Agreement), 10
(documents that concern fundraising for any political candidate, including members of Green 20,
where such document also concerns ExxonMobil), or 11 (communications with any member of
the Green 20 concerning a mock trial held in France in December 2015).
Finally, Dr. Frumhoff objects to each of the Requests directed to him on the following
grounds.
First, Dr. Frumhoff objects to the Requests because they seek the production of
documents protected from disclosure under the First Amendment to the Constitution of the
United States. Scientists such as Dr. Frumhoff who are “engaged in scholarly research” must be
considered “information gatherers and disseminators” whose work process, like that of
3

We note that the substantive objections set forth infra regarding the subpoena to Dr. Frumhoff would apply equally
to UCS if ExxonMobil were to serve a revised subpoena upon UCS.

 Justin Anderson, Esq.
November 23, 2016
Page 4
journalists, is protected by the First Amendment. See Cusumano v. Microsoft Corp., 162 F.3d
708, 714 (1st Cir. 1998); see also In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab.
Litig., 249 F.R.D. 8, 12 (D. Mass. 2008) (granting motion for protective order in litigation over
non-party document subpoena served on the New England Journal of Medicine and its
publisher).
The Requests are likewise objectionable under the First Amendment to the extent they
seek to chill and/or have the effect of chilling the right to free speech, association, and petition of
the government in terms of Dr. Frumhoff’s work on climate science and policy. See, e.g., Pebble
Ltd. P’ship v. EPA, 310 F.R.D. 575, 582 (D. Alaska 2015) (granting motion to quash subpoenas
served on non-parties the Alaska Conservation Foundation and its program officer Dr. Samuel
Snyder, where those subpoenas sought “the discovery of material protected by the First
Amendment”); Wyoming v. Dep’t of Agric., 208 F.R.D. 449 (D.D.C. 2002) (granting motion to
quash subpoenas served on non-party environmental groups on First Amendment grounds). Put
differently, Dr. Frumhoff objects to the Requests on the ground that ExxonMobil is not entitled
to have its cake and eat it, too: In the underlying litigation, ExxonMobil alleges that the requests
by the Attorneys General for its climate change-related documents are part of an “apparent effort
to silence, intimidate, and deter those possessing a particular viewpoint” from participating in the
“debate” over climate change. See First Am. Compl. ¶ 110. It appears that such intimidation is
precisely ExxonMobil’s intent in issuing the subpoena to Dr. Frumhoff.
Second, Dr. Frumhoff objects to the Requests because they exceed the scope of discovery
that ExxonMobil has been authorized to undertake. We understand that, on October 13, 2016,
the Texas court ordered that the parties to the underlying litigation could engage in jurisdictional
discovery for the limited purpose of determining whether Attorney General Healey acted in bad
faith in issuing the CID to ExxonMobil. See Order, Exxon Mobil Corp. v. Healey, No. 4:16-cv469-K (N.D. Tex. Oct. 13, 2016), ECF No. 73, at 5-6. Even if this Order implicitly permits
discovery of non-parties for that particular purpose, which Dr. Frumhoff does not concede, these
Requests seek records regarding matters that on their face would not be relevant to the only
“claim or defense” presently before the court, the allegation of bad faith against Attorney
General Healey. See Fed. R. Civ. P. 26(b)(1). Request No. 7, as just the most glaring example,
calls for documents relating to a conference that took place in June 2012, two and a half years
before Attorney General Healey took office, and which she did not even attend. It is similarly
implausible, for instance, that records relating to “fees or expenses paid to former Vice President
Al Gore,” as sought by Request No. 3, or documents concerning any 2015 or 2016 ExxonMobil
“shareholder resolution relating to climate change,” as demanded by Request No. 9, could bear
on the bad faith claim.
Third, even if a court were to conclude that the Texas court’s order authorizing limited
jurisdictional discovery did not preclude the present subpoena, either in whole or in part, Dr.
Frumhoff nevertheless objects to the Requests because, individually and collectively, they
impose an undue burden on him. See Fed. R. Civ. P. 45(d)(1) (“A party or attorney responsible

 Justin Anderson, Esq.
November 23, 2016
Page 5
for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden
or expense on a person subject to the subpoena.”). There are at least three components to the
undue burden. The Requests, directed at a non-party, seek “all” documents regarding a broad
range of topics concerning Dr. Frumhoff’s work over the past several years. The Requests
thereby are intrusive, unreasonably broad, and disproportionate to the needs of ExxonMobil in
the underlying litigation. Cf. Cusumano, 162 F.3d at 717 (“Although discovery is by definition
invasive, parties to a law suit must accept its travails as a natural concomitant of modern civil
litigation. Non-parties have a different set of expectations. Accordingly, concern for the
unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the
balance of competing needs.”); United Therapeutics Corp. v. Watson Labs., Inc., 2016 WL
5334653, at *3 (D. Mass. Sept. 22, 2016) (recognizing that, like discovery taken between parties
under Rule 26, subpoenas to non-parties under Rule 45 must also be “proportional to the needs
of the case” following 2015 amendments to Federal Rules of Civil Procedure).
Additionally, the Requests are disproportionate to ExxonMobil’s needs and unduly
burdensome to Dr. Frumhoff to the extent ExxonMobil has not first attempted to obtain from the
parties the materials that it here seeks via the subpoena to Dr. Frumhoff, a third party. For
example, several of the Requests seek copies of communications between Dr. Frumhoff and
representatives of the defendants in the underlying litigation. But ExxonMobil has made no
showing that it is practically unable to obtain such materials from the defendant parties, and
turning to a non-party in the absence of such a showing is unreasonable. See, e.g., Rockstar
Consortium US LP v. Google, Inc., 2015 WL 5972422, at *6 (D. Mass. Oct. 14, 2015) (finding
that subpoena imposed an undue burden on non-party in part because its demands “could have
been satisfied, to a considerable extent, through requests to [a party],” and noting that “Rule 45
does not excuse imposing an undue burden on . . . a non-party, because of discovery difficulties
with [a party]”).
Furthermore, the Requests are disproportionate to ExxonMobil’s needs and unduly
burdensome to Dr. Frumhoff to the extent they purport to require him to engage at his expense
technical vendors to search extensive electronic databases and then produce responsive
documents in a particular, and particularly onerous format. ExxonMobil has made no showing
why the burden and expense of such search and production in its preferred format is necessary,
much less why Dr. Frumhoff should bear the financial costs of complying. For clarity,
Dr. Frumhoff objects to the searches of electronic records the Requests would require of him.
Fourth, Dr. Frumhoff objects to the Requests to the extent they require him to search for
and produce documents that are not within his possession, custody, or control. As just one
example, the Requests would impose on Dr. Frumhoff an obligation to comb through the files of
anyone acting – or merely “purporting to act” – on his behalf in any capacity whatsoever to
search for responsive records. See Subpoena to Dr. Frumhoff Ex. A ¶ 21.

 Justin Anderson, Esq.
November 23, 2016
Page 6
Fifth, Dr. Frumhoff objects to the Requests to the extent they seek information that is
protected by the attorney-client privilege, the work-product doctrine, the common interest
privilege, the joint-defense privilege, and/or other privileges, doctrines, or immunities.
Furthermore, Dr. Frumhoff objects to producing a privilege log of responsive documents because
to do so would impose on him undue burden in the form of expense for the search for responsive
records and the assistance of counsel, when ExxonMobil cannot make even a threshold showing
of an actual need for such documents in the underlying litigation.
Sixth, Dr. Frumhoff objects to the Requests to the extent they seek to impose
requirements beyond those provided for in the Federal Rules of Civil Procedure and the Local
Rules of the United States District Court for the District of Massachusetts. By way of example,
the subpoena insists that the Requests “are continuing in nature under Federal Rule of Civil
Procedure 26(e),” stating:
Any document created or identified after service of any response to
these Requests that would have been produced in response had the
document then existed or been identified shall promptly be
produced whenever You find, locate, acquire, create, or become
aware of such documents, up until the resolution of this lawsuit.
Id. ¶ 23. But such an onerous continuing disclosure obligation, on its face, applies only to “[a]
party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory,
request for production, or request for admission,” not a non-party responding to a subpoena
served pursuant to Rule 45. See Fed. R. Civ. P. 26(e)(1) (emphasis added).
Seventh, Dr. Frumhoff objects to the Requests to the extent they seek information
concerning any responsive documents “that were disposed of or destroyed since April 13, 2016.”
See Subpoena to Dr. Frumhoff, Request No. 13. Dr. Frumhoff did not receive a document
preservation request from ExxonMobil in this matter until his receipt of a letter dated October
20, 2016, and he is under no obligation to identify any materials that may have been disposed of
in the ordinary course prior to that time.
Eighth, Dr. Frumhoff objects to the Requests to the extent they seek the disclosure of his
expert work product, which would constitute “an unretained expert’s opinion or information that
does not describe specific occurrences in dispute and results from the expert’s study that was not
requested by a party.” See Fed. R. Civ. P. 45(d)(3)(B)(ii). Requests No. 2 and 7, for instance,
expressly call for records relating to certain presentations made and discussions engaged in by
Dr. Frumhoff that would fall within the scope of his expertise in climate science and policy.
Ninth, we understand that representatives of Dr. Frumhoff promptly on his behalf
requested from you a brief extension of the time in which he was required to respond to the
subpoena, but that, on behalf of ExxonMobil, you declined that request without explanation.

 Justin Anderson, Esq.
November 23, 2016
Page 7
Dr. Frumhoff accordingly reserves the right to amend or supplement his objections to the
Requests as more information becomes available to him, and the failure of Dr. Frumhoff to
object on a particular ground herein shall not be construed to be a waiver of his right to object on
any additional grounds.
*

*

*

While we believe the foregoing responses and objections are self-explanatory, if you
wish to discuss the subpoenas, please contact us.
Very truly yours,
LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:
Jay Ward Brown
Rachel F. Strom, MA BBO # 666319
Maxwell S. Mishkin