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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of the
PEOPLE OF THE STATE OF NEW YORK,
by ERIC T. SCHNEIDERMAN,
Attorney General of the State of New York,

Index No. 451962/2016
IAS Part 61

Petitioner,

Hon. Barry R. Ostrager

-againstPRICEWATERHOUSECOOPERS LLP and
EXXON MOBIL CORPORATION,

Motion Sequence Nos. 4 and 5

Respondents.

EXXON MOBIL CORPORATION’S OPPOSITION TO
THE ATTORNEY GENERAL’S MOTION TO COMPEL
AND REPLY IN SUPPORT OF ITS MOTION TO QUASH

PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
Attorneys for Respondent Exxon
Mobil Corporation

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .............................................................................................. ii
PRELIMINARY STATEMENT ......................................................................................... 1
ARGUMENT ....................................................................................................................... 5
I.

The Attorney General Has Failed to Demonstrate a Legitimate Need for,
or the Proportionality of, His Document Subpoena................................................. 5
A.

B.

The Attorney General Has Failed to Provide a Factual Basis for the
Document Subpoena. ................................................................................... 7
1.

Using Distinct Carbon-Related Costs for Distinct Purposes
Is Proper. .......................................................................................... 7

2.

Incorporating Actual Carbon Costs into Project Economics
Is Proper. ........................................................................................ 11

3.

The Attorney General Cannot Justify the Document
Subpoena by Pointing to a Lack of Evidence. ............................... 12

Lacking Any Sense of Proportionality, the Attorney General’s
Document Subpoena Should Also Be Quashed as Unduly
Burdensome and Oppressive. .................................................................... 14

II.

The Attorney General’s Request that ExxonMobil Prepare New Analyses
Cannot Be Salvaged by Relabeling Them “Interrogatories.” ................................ 18

III.

The Probe of ExxonMobil’s Proved Reserves and Asset Impairments Is
Preempted. ............................................................................................................. 19

IV.

ExxonMobil Does Not Control Imperial. .............................................................. 19

V.

The Court Should Not Allow the Attorney General to Create a Sideshow
of Discovery about Discovery. .............................................................................. 23

CONCLUSION.................................................................................................................. 25

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TABLE OF AUTHORITIES
Page(s)

CASES

A’Hearn v. Comm. on Unlawful Practice of Law,
23 N.Y.2d 916 (1969) .................................................................................................... 5
Airbnb, Inc. v. Schneiderman,
44 Misc. 3d 351 (Sup. Ct. Albany Cnty. 2014) ................................................. 6, 14, 17
Alfred E. Mann Living Trust v. ETIRC Aviation S.a.r.L.,
55 Misc. 3d 1211(A) (Sup. Ct. N.Y. Cnty. 2010).................................................. 16, 17
Bank of Tokyo–Mitsubishi, New York Branch v. Kvaerner,
671 N.Y.S.2d 90 (Sup. Ct. N.Y. Cnty. 1998) ............................................................. 22
Berger v. United States,
295 U.S. 78 (1935)......................................................................................................... 1
City of Albany Indus. Dev. Agency v. N.Y. State Comm’n on Gov’t
Integrity,
144 Misc. 2d 342 (Sup. Ct. Albany Cnty. 1989) ........................................................... 5
D’Alimonte v. Kuriansky,
144 A.D.2d 737 (3d Dep’t 1988) ................................................................................. 15
Delagi v. Volkswagenwerk A.G. of Wolfsburg, Germany,
29 N.Y.2d 426 (1972) ............................................................................................ 20, 21
FIA Leveraged Fund Ltd. v. Grant Thornton LLP,
2017 WL 2110774 (1st Dep’t May 16, 2017) ............................................................. 20
Grande Prairie Energy LLC v. Alstom Power, Inc.,
798 N.Y.S.2d 709 (Sup. Ct. N.Y. Cnty. 2004) ........................................................... 22
Horn Const. Co. v. Fraiman,
34 A.D.2d 131 (1st Dep’t 1970) .................................................................................... 5
Litemore Elec. Co. v. City of N.Y.,
96 A.D.2d 1022 (1st Dep’t 1983) ................................................................................ 18
Matter of Napatco, Inc. v. Lefkowitz,
43 N.Y.2d 884 (1978) .......................................................................................... 5, 6, 25
Mijatovic v. Noonan,
172 A.D.2d 806 (2d Dep’t 1991) ................................................................................. 18

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Page(s)
Mustaphalli Capital Partners Fund, LP v. People,
Index No. 650845/14, 2014 WL 2417523 (Sup. Ct. N.Y. Cnty. May
23, 2014) ........................................................................................................................ 6
Myerson v. Lentini Brothers Moving and Storage Co.,
33 N.Y.2d 250 (1973) .................................................................................................... 5
N.Y. State Comm’n on Judicial Conduct v. Doe,
61 N.Y.2d 56 (1984) .................................................................................................... 16
N.Y. State Joint Comm’n on Pub. Ethics v. Campaign for One N.Y., Inc.,
53 Misc. 3d 983 (Sup. Ct. Albany Cnty. 2016) ........................................................... 17
OneBeacon Am. Ins. Co. v. Newmont Mining Corp.,
82 A.D.3d 554 (1st Dep’t 2011) .................................................................................. 20
People ex rel. Spitzer v. H & R Block, Inc.,
847 N.Y.S.2d 903 (Sup. Ct. N.Y. Cnty. 2007) ............................................................ 19
Public Administrator of NewYork County v. Royal Bank of Canada,
19 N.Y.2d 127 (1967) .................................................................................................. 20
Reuters Ltd. v. Dow Jones Telerate, Inc.,
231 A.D.2d 337 (1st Dep’t 1997) .......................................................................... 15, 17
Smith v. Russo-Asiatic Bank,
170 Misc. 408 (Sup. Ct. Albany Cnty. 1939) .............................................................. 16
Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp.,
751 F.2d 117 (2d Cir. 1984) .................................................................................. 20, 21

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Exxon Mobil Corporation (“ExxonMobil”) submits this brief in opposition to the
Attorney General’s motion to compel compliance with the May 8, 2017 subpoenas challenged by
ExxonMobil and in further support of its motion to quash.
PRELIMINARY STATEMENT
Prepared for the press rather than this Court, the Attorney General’s brief amply
demonstrates why the challenged subpoenas should be quashed. Filled with inflammatory,
reckless, and false allegations of an “ongoing fraudulent scheme” and “sham” business practices,
the Attorney General’s brief was filed with this Court minutes before detailed press accounts
appeared describing his baseless claims. This rapid and widespread media coverage was the
intended consequence of the Attorney General’s providing advance copies of the brief to the
media days before filing it with the Court, a troubling fact confirmed by members of the media.
Providing a brief to the press in advance of filing is textbook pandering.
No further evidence is required to establish the political motivation of the Attorney
General’s fruitless year-and-a-half long investigation pursuing his ever-shifting and unraveling
investigative theories. It is an abuse of the powers of his office and the court system itself,
furthering only the Attorney General’s transparent political ambitions and ultimately bound to
taint a prospective jury pool, thereby depriving ExxonMobil of a fair trial in the event this
political witch hunt were to reach that unlikely stage. As the Supreme Court so aptly stated
eighty years ago, a government attorney’s interest “is not that it shall win a case, but that justice
shall be done. . . . [W]hile he may strike hard blows, he is not at liberty to strike foul ones.”
Berger v. United States, 295 U.S. 78, 88 (1935).
In addition to the “foul” blows included in his brief, the Attorney General has unilaterally
released ExxonMobil’s confidential and proprietary records about its commercially sensitive

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business operations without first providing ExxonMobil the opportunity to request sealing. 1
Whether this amounts to intentional graymail or was an oversight due to haste in meeting a press
deadline need not be resolved here. Whatever the cause, the Attorney General’s actions only
highlight the important role this Court plays in ensuring that the Attorney General exercises his
power lawfully and makes demands proportionate to a legitimate need.
And a legitimate law enforcement need is absent here. In the latest of many shifts in his
investigative theory, the Attorney General now claims there is a disconnect between
ExxonMobil’s public statements about carbon pricing and its internal practices. Nothing of any
substance in the Attorney General’s brief supports this claim.2 ExxonMobil has for years told
the public that, when projecting the global demand for energy, it assesses potential macro
impacts of future aggregate greenhouse gas (“GHG”) policy by using a proxy cost of carbon.
That approach assists ExxonMobil in assessing potential energy demand over time in many
sectors where future policy actions are unclear, or may involve a significantly broad suite of
policy initiatives. In other demand sectors where the direction of policies and related targets are
more clear, a more direct approach reflecting assessments of targeted policies is used, as
appropriate, and as an alternative to a proxy cost. Overall, the use of a proxy cost and targeted
policy assessments have the result of dampening energy demand over time. These demand
projections are ultimately reflected in ExxonMobil’s overall energy outlook and its pricing
outlook, which are used to assess investment opportunities. ExxonMobil’s assessment of energy
demand, made available to the public on an annual basis, has informed its investment decisions
1

2

In light of the commercially sensitive nature of the information, it is not surprising that ExxonMobil has not
published it, and it is improper for the Attorney General to have unilaterally disclosed it. The Attorney General
should be directed to provide notice to ExxonMobil prior to filing any further documents that he has received in
this investigation so that ExxonMobil may seek sealing where appropriate.
It is unsurprising that the Attorney General is proceeding in this misguided fashion since he did not bother to
conduct depositions of those who possess knowledge on this matter before issuing the challenged document
subpoena.

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for years.
Separate from assessing the impacts of aggregate carbon policy at a macro level in terms
of global energy demand and prices, ExxonMobil also takes into account, where appropriate, the
impacts of current and reasonably anticipated GHG regulations related to capital projects. It
does this by estimating the potential project-specific costs associated with GHG emissions and
including them in the project’s economics.
The Attorney General would like this Court to believe that ExxonMobil’s practices are
not aligned with its public statements, but he offers no credible support for that false claim.
Instead, he points to ExxonMobil’s use of (i) proxy carbon cost estimates when assessing the
impact of aggregate GHG policy on global energy demand that were different, at times, from
(ii) GHG cost estimates used to assess the potential effect of regulations on the economics of
specific projects. Considering the different purposes of those two exercises (assessing potential
global energy demand over time on the one hand, and evaluating likely economics of specific
projects on the other), it is unsurprising that different figures would be used. ExxonMobil has
not said that it relied on one set of figures for all purposes, and a reasonable investor would not
draw such a conclusion from ExxonMobil’s public statements.
The Attorney General’s other purported justifications are even less persuasive.

He

complains about finding no evidence of the “consistent application of a proxy cost” in the 2.8
million pages of ExxonMobil documents already produced in this case, but points to no instance
where a cost of carbon was not applied but should have been. For a prosecutor proceeding in
good faith, the absence of any evidence of wrongdoing is grounds for closing an investigation,
not expanding it. Even more frivolous is the Attorney General’s claim that it was inappropriate
to use the actual cost of carbon in Alberta, Canada when assessing overall project economics,

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rather than hypothetical figures. There is no basis in law or logic to find fault for relying on
actual costs when available. And the idea that ExxonMobil was obligated to apply hypothetical
costs of possible future policies when estimating reserves finds no support in, and would in fact
contradict, relevant SEC policies.

Moreover, GAAP standards for reviewing assets for

impairment contain no reference to costs associated with potential future GHG regulations.
To justify further depositions, the Attorney General falsely submits that ExxonMobil has
somehow not accounted for the purported “destruction of documents from key custodians.”
Nothing could be further from the truth. As this Court recognized months ago, ExxonMobil
provided the Attorney General with a full accounting of its preservation and collection efforts
both as to Mr. Tillerson and more broadly in this matter. ExxonMobil has now provided
multiple sworn statements and two witnesses for separate day-long depositions on the issue. If
more testimony is required, the Attorney General must explain what he needs and make a request
proportional to that need. Demanding that another four witnesses travel to New York City for
further depositions on the Attorney General’s say-so falls well short of satisfying that standard.
The Attorney General’s conclusory assertion of ExxonMobil’s control of an independent
Canadian energy company is equally insufficient to meet the burden of proof necessary to
compel ExxonMobil to produce a witness from that company.
From the outset of this investigation, it has been clear that the Attorney General is
working backwards from an assumption of ExxonMobil’s guilt, searching in vain for some
theory to support his prejudgment. These subpoenas are just the latest gambit in the Attorney
General’s pursuit of favorable press and harassment of ExxonMobil. They should be quashed.

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ARGUMENT
I.

The Attorney General Has Failed to Demonstrate a Legitimate Need for, or the
Proportionality of, His Document Subpoena.
The Attorney General would relegate this Court to a mere rubber stamp on his subpoena

power. 3 Unsurprisingly, the law says otherwise. As ExxonMobil established in its opening
brief, where, as here, an investigation has proceeded beyond a “preliminary or tentative inquiry,”
a showing of “some factual basis” for an investigation is not enough to safeguard against the
investigation “be[ing] causelessly broadened into an unlimited examination of the business
affairs of an enterprise.” Myerson v. Lentini Brothers Moving and Storage Co., 33 N.Y.2d 250,
258–260 (1973). Reining in executive overreach, courts halt inquiries where they have become
“unduly protracted, unduly intrusive into the affairs of the witness without some showing of
utility in its further prosecution.” A’Hearn v. Comm. on Unlawful Practice of Law, 23 N.Y.2d
916, 918 (1969).

To justify the substantial widening of a long-running investigation, the

Attorney General must demonstrate that continued investigative “efforts would or reasonably
might prove fruitful.” Horn Const. Co. v. Fraiman, 34 A.D.2d 131, 133 (1st Dep’t 1970). And
it is not enough for the Attorney General to do what he has done here, pointing to “minimal,
equivocal documentary proof . . . with no other proof of any sort to support suspicion of
illegality.” Matter of Napatco, Inc. v. Lefkowitz, 43 N.Y.2d 884, 885–86 (1978).
Rejecting this well-established law, the Attorney General claims that “New York courts
continue to apply [his preferred, more deferential] principles in evaluating follow-on
subpoenas.” 4 But that claim is not supported by precedent, including those referenced in the
3

4

Opp. 14–15 & n.14. “Opp.” refers to the Attorney General’s brief in opposition to ExxonMobil’s motion to
quash and in support of his cross-motion to compel compliance with the challenged subpoenas (NYSCEF No.
168); “Oleske” refers to the affirmation filed by John Oleske in support of the Attorney General’s cross-motion
to compel (NYSCEF No. 169) and the exhibits thereto; and “Br.” refers to ExxonMobil’s brief in support of its
motion to quash (NYSCEF No. 130).
Opp. 15.

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Attorney General’s brief. While it is true that City of Albany Indus. Dev. Agency v. N.Y. State
Comm’n on Gov’t Integrity upheld a follow-on subpoena, 5 that decision did not address, as here,
a request for documents minimally relevant to an ongoing inquiry. 144 Misc. 2d 342, 344–45
(Sup. Ct. Albany Cnty. 1989). To the contrary, the state commission in that case carried its
burden of establishing that the document request was “both reasonable in breadth and relevant
and material to the issues under inquiry.” Id. at 344 (emphasis added). The Attorney General
should be held to the same standard here—and found wanting.
The Attorney General’s reliance on Mustaphalli Capital Partners Fund, LP v. People,
Index No. 650845/14, 2014 WL 2417523 (Sup. Ct. N.Y. Cnty. May 23, 2014), is equally
unfounded. 6 That decision examined a follow-on Martin Act subpoena issued less than one
month after the first. 2014 WL 2417523, at *1 (addressing a subpoena served April 2, 2014,
following an original subpoena served March 3, 2014). That is a far cry from the case here,
where the Attorney General has investigated ExxonMobil for eighteen months and counting,
receiving more than 2.8 million pages of documents in response to an already expansive request.
Under the precedent identified by the Attorney General and ExxonMobil, the rules are
clear: the Attorney General must provide something more than “minimal, equivocal documentary
proof” to obtain further documents in this long-running, intrusive inquiry. Napatco, 43 N.Y.2d
at 885. If that threshold hurdle is cleared, then the Court must “weigh[] the scope and basis for
the issuance of the subpoena against the factual predicate for the investigation ‘lest the powers of
investigation . . . become potentially instruments of abuse and harassment.’” Airbnb, Inc. v.
Schneiderman, 44 Misc. 3d 351, 356 (Sup. Ct. Albany Cnty. 2014) (quoting Myerson, 33 N.Y.2d
at 258). This standard mandates that the document subpoena be quashed.
5
6

Opp. 15 n.18.
Opp. 15.

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The Attorney General Has Failed to Provide a Factual Basis for the Document
Subpoena.
The Attorney General offers one justification for his new document subpoena: rank

speculation that ExxonMobil’s public statements about a proxy cost of carbon were false or
misleading. Despite having 2.8 million pages of ExxonMobil’s documents and eighteen months
to review them, the Attorney General has found no valid basis for believing misrepresentations
have taken place. Nothing in the Attorney General’s brief remotely supports that claim.
1.

Using Distinct Carbon-Related Costs for Distinct Purposes Is Proper.

ExxonMobil has truthfully and consistently told the public that, when projecting the
global demand for energy, it addresses potential impacts of future climate-related policies,
including the potential for restrictions on emissions, through the use of a proxy cost of carbon.” 7
This approach assists the company in assessing potential energy demand over time in many
sectors where future policy actions are unclear or may involve a significantly broad suite of
policy initiatives. In other demand sectors, for example the light duty vehicle sector, where the
direction of policies and related targets are more clear (e.g., fuel economy standards), a more
direct approach reflecting assessments of targeted policies is used, as appropriate, and as an
alternative to a proxy cost. Overall, the use of a proxy cost and targeted policy assessments have
the result of dampening energy demand over time.

In this manner, ExxonMobil takes a

comprehensive account of potential effects of future GHG policies on energy demand. In its
annual Outlook for Energy report, ExxonMobil (like other energy companies) provides its
estimates of future demand for energy, reflecting the potential impact of future carbon policies.
The proxy cost of carbon reflects a macro global impact of potential
government policy on future global oil and gas demand.
ExxonMobil considers the potential impact of GHG-related policies on its individual
7

Oleske Ex. 1 at 17.

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projects in two ways. First, as noted above, the demand for energy projected in the Outlook for
Energy—which forms a critical part of ExxonMobil’s project planning process—utilizes a proxy
cost of carbon as well as targeted policy assessments to comprehensively reflect potential
policies governments may employ related to managing the risks of climate change, which can, in
turn, impact future oil and gas demand. This rigorous assessment of the potential impact of
future emissions policies is central to the development of ExxonMobil’s Outlook for Energy and
is therefore baked into ExxonMobil’s macro demand and price outlooks, which are considered
when evaluating the economics of ExxonMobil’s potential projects. 8
The separate GHG cost reflects the potential direct financial impact
of regulations affecting ExxonMobil’s projects.
Second, ExxonMobil also evaluates the direct financial impact of existing and potential
future GHG regulation on potential investments on a project-by-project basis, as appropriate.
This GHG cost examines those existing and reasonably anticipated regulations that may have an
impact on the economics of the project in question, as opposed to those policies that might have
an effect on global demand. Additionally, to stress test potential investments, ExxonMobil
considers many variables, including, among other things, potential wide swings in oil and gas
prices, geopolitical risks, and potential changes in sales markets. The application of a GHG cost,
over and above the projected macro impact of climate change policy factored into ExxonMobil’s
energy outlook, is thus in keeping with ExxonMobil’s disciplined approach to evaluating
potential investments and projects across a wide range of economic conditions and commodity

8

While these macro demand and price outlooks reflect supply and demand assumptions consistent with the
Outlook for Energy, the pricing may not fully contemplate the potential for local and regional market impacts,
or other offsetting policy factors. For example, to the extent GHG emission costs increase the marginal cost of
production in a region, depending on circumstances, some or all of these costs may be recovered in the market
through higher prices. ExxonMobil assesses these situations, as appropriate, on a case-by-case basis and
develops specific policy and market assumptions for business decisions or assessments that could be impacted.

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prices. Indeed, as set out by the documents referenced in the Attorney General’s brief, 9 the
proxy cost used in the Outlook for Energy and the GHG cost used for project planning “serve
two different purposes.” 10
The market has already acknowledged that, as a general matter, “ExxonMobil’s carbon
price is invisible to consumers” and is not publicly disclosed. 11 Nevertheless, ExxonMobil has
projected in its Outlook for Energy an implied cost of carbon reaching $60 per ton of CO2
emissions by 2030 for OECD countries and has noted that its proxy cost of carbon “in some
geographies may approach $80/ton by 2040.” 12 Aside from these broad ranges, ExxonMobil has
not released a detailed set of the figures it uses to assess global energy demand or in project
planning.
The Attorney General suggests there is something improper or misleading in
ExxonMobil’s use of a proxy cost of carbon when estimating the aggregate global demand for
energy and a conceptually distinct GHG cost when evaluating project economics. 13 Why that
would be so is not obvious and has not been explained by the Attorney General.
GHG costs are tools for assessing potential future investments,
not concrete costs governed by GAAP.
The Attorney General suggests that GAAP and SEC regulations require ExxonMobil to
use the same cost of GHG emissions regardless of context or purpose, whether for estimating
9
10

11

12
13

Oleske Exs. 3–5.
Oleske Ex. 4. The documents reflect, and the Attorney General acknowledges, that ExxonMobil’s proxy cost
and GHG costs converge in 2030, as ExxonMobil believes policies will evolve from a patchwork of approaches
(sometimes affecting producers and other times affecting end users) into a more comprehensive regime, e.g., a
carbon tax. Oleske Ex. 5. This demonstrates that, consistent with responsible business practice, ExxonMobil
has continued to evolve and mature its processes for assessing future GHG policy when evaluating projects.
See Affirmation of Justin Anderson in Opposition to the Attorney General’s Motion to Compel and in Further
Support of Exxon Mobil Corporation’s Motion to Quash and for a Protective Order (“Anderson”) Ex. A.
While it has been publicly stated that ExxonMobil does not disclose the full details of its projected costs of
future climate change policy, it has also been publicly stated that ExxonMobil’s internal projections are not
static, and are subject to review and revision based on continuing events. (See id.)
Oleske Ex. 1 at 17–18. The Center for American Progress recognized the latter figure as among the highest of
any American company. See Anderson Ex. B.
Opp. 6–7.

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global aggregate demand, making “impairment decisions,” or estimating “oil and gas reserves.” 14
But GAAP requires no such thing. To the contrary, except to the extent actual GHG policies are
in effect in a relevant jurisdiction, GHG costs are tools for assessing potential future investments,
not concrete costs governed by GAAP.

GAAP standards regarding impairment make no

reference to such costs, requiring only that assumptions used in developing estimates of future
cash flows be “reasonable” in relation to assumptions used in developing other information used
by the entity. See FASB Accounting Standards Codification 360-10-35-30. For their part, the
relevant SEC regulations on the estimation of reserves expressly bar consideration of the
hypothetical impact of future policies, which is a key purpose of the proxy cost.
ExxonMobil’s use of different metrics, in different circumstances, to accomplish different
goals evinces prudent financial stewardship, applying appropriate assumptions in appropriate
cases. There is nothing untoward or surprising about any of this.
What is surprising is how far the Attorney General’s latest theory lurches from those
originally used to justify this investigation. The Attorney General’s November 2015 subpoena
was supposedly born of the thesis that ExxonMobil downplayed the risks of climate change, but
secretly took the effects of climate change into account in its business decisions. That original
theory has been turned on its head, as the Attorney General now claims that ExxonMobil
recognized publicly the gravity of climate change in its Outlook for Energy, but ignored these
risks when considering particular oil or gas projects. This is just another example of the “heads I
win, tails you lose” approach to investigating employed by the Attorney General. While it might
be too much to expect consistency from the Attorney General, his failure to present a coherent

14

Opp. 8.

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rationale for further investigation is fatal to his current plea to this Court. 15
2.

Incorporating Actual Carbon Costs into Project Economics Is Proper.

Grasping for justifications that might conceivably support the document subpoena, the
Attorney General alleges that ExxonMobil improperly “advised” an employee of a partially
owned affiliate, Imperial Oil Limited (“Imperial”), “not to apply the proxy cost of GHGs” and to
hold flat an alternative cost indefinitely into the future. 16 That is not true, and the document the
Attorney General references for support rebuts the allegation. In that document, an Imperial
employee asked for “clarity” on whether the “guidance is to follow the new EU GHG costs” for
a heavy oil project in Canada. 17

ExxonMobil’s Corporate GHG Manager confirmed that

understanding, noting that “[b]eginning in 2020, the price is $24.30/T then increases to $100/T
by 2050.” 18 Far from suggesting fraud, this email demonstrates that ExxonMobil’s actions lived
up to its words. Indeed, the GHG costs referenced in the email exactly track ExxonMobil’s
guidance and price tables, which use actual costs through 2020, and then escalate GHG costs to
$100 per ton in 2050. 19
The Attorney General also does not explain how ExxonMobil can be faulted for advising
that the actual cost of carbon then imposed by law be considered, rather than a projected cost of
carbon. 20 Indeed, as stated in its public disclosures, ExxonMobil applies a GHG cost to project
economics “where appropriate.” 21 When an actual cost is known, it serves no legitimate purpose
to ignore that cost and replace it with one that is hypothetical. The operative ExxonMobil policy
15

16
17
18
19
20
21

In this vein, the Attorney General makes a baseless allegation about ExxonMobil’s purported failure to meet
and confer. (Opp. 12–13.) Even setting aside the irony that the Attorney General routinely ignored his own
obligation to meet and confer in advance of his numerous applications to this Court, this charge is utterly false,
as detailed in ExxonMobil’s letter to the Attorney General, dated May 25, 2017. (Anderson Ex. C.)
Oleske ¶ 33; Opp. 7–8, 24.
Oleske Ex. 6.
Id.
See Anderson Ex. G.
Id.
Oleske Ex. 1 at 18.

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at the time recommended that users in Western Canada “include . . . local specifics if known to
differ” from projections. 22 It speaks volumes about the flimsiness of the Attorney General’s
investigation, and his willingness to misrepresent the very documents upon which he relies, that
he would fault ExxonMobil for following both company policy and Canadian law.
3.

The Attorney General Cannot Justify the Document Subpoena by Pointing to
a Lack of Evidence.

Next, the Attorney General makes the counterintuitive claim that ExxonMobil must be
misleading the public about its use of a proxy cost of carbon because the Attorney General has
not identified the documents he would expect to see if ExxonMobil had been applying the proxy
cost or the GHG cost in its corporate planning, reserves estimation, and asset impairment
analyses. 23 In other words, the Attorney General stakes his entire investigation on the logical
fallacy that the absence of evidence constitutes evidence of absence.

But ExxonMobil’s

production has been made based on a protocol agreed to by the Attorney General, as supervised
and approved by this Court. Indeed, as this Court stated during the January 9, 2017 hearing, the
production it ordered—which ExxonMobil has now completed—should provide the Attorney
General “all of the documents that [he] require[s]” to conduct his inquiry. 24
After having received “all of the documents that [he] require[s],” 25 the Attorney
General’s claim that he has seen nothing to support ExxonMobil’s public statements cannot
obscure the fact that he cites not a single document that undercuts ExxonMobil’s long-standing,
public commitment to incorporating both a proxy cost of carbon (to gauge demand) and a GHG
cost (as an added layer of financial discipline) into its business decisions. And aside from being
unpersuasive as a matter of logic, the Attorney General’s claim grossly distorts the record.
22
23
24
25

See Anderson Ex. G.
Opp. 7; Oleske ¶ 34.
Jan. 9, 2017 Tr. at 15:15-17.
Id.

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Contrary to the Attorney General’s suggestion that ExxonMobil’s production is “devoid
of evidence that Exxon applied any consistent proxy-cost analysis,” 26 ExxonMobil has produced
many years’ worth of “Dataguide Appendices” setting forth the corporate policy requiring that
business segments take GHG emission costs into account when assessing project economics. 27
The Attorney General has not provided a shred of evidence indicating—or even suggesting—that
ExxonMobil business units or employees were ignoring this policy. Other internal documents,
written when neither the sender nor the recipient would have any incentive to mislead,
demonstrate that ExxonMobil in fact applied a GHG cost to its projects. 28
Moreover, the record includes management presentations making clear that GHG costs
were a part of the equation when determining the financial viability of projects. 29 ExxonMobil’s
production also contains numerous documents demonstrating that ExxonMobil incorporates an
estimate of the cost of GHG regulation in its project planning in full accordance with its public
statements. 30 If the Attorney General’s implausible theory were correct, ExxonMobil employees
have for years prepared internal and proprietary Dataguides, presentations, analyses, and other
documents for the sole purpose of maintaining a false pretense of doing something (evaluating
the future regulatory costs of carbon emissions) that no law or policy requires them to do. To
describe the Attorney General’s theory is to debunk it. Simply put, the assembled record
supplies no basis to doubt ExxonMobil’s truthful public statements that it has utilized both a
proxy cost of carbon and GHG costs for corporate planning purposes.
Largely relegated to a footnote in his brief, the Attorney General claims that ExxonMobil
26
27
28
29
30

Oleske ¶ 35.
See, e.g., Anderson Ex. D (for 2011); Anderson Ex. E (for 2012); Anderson Ex. F (for 2013); Anderson Ex. G
(for 2014); Anderson Ex. H (for 2015).
See, e.g., Anderson Exs. I, J, K.
See, e.g., Anderson Ex. L.
See, e.g., Anderson Ex. M (planning for a facility in La Barge, Wyoming); Anderson Ex. N (planning for U.S.
refinery operations); Anderson Ex. O (planning for Baton Rouge refinery operations).

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failed to apply a proxy or GHG cost for “emissions stemming from end use of . . . oil and gas,”
an apparent reference to so-called “Scope 3” emissions, which are generated by the end users of
ExxonMobil’s products, not ExxonMobil.31 The Attorney General has identified no public
statement where ExxonMobil claimed that its proxy cost of carbon or GHG costs included Scope
3 emissions. The only statement offered by the Attorney General to support this claim amounts
to little more than a red herring. 32 In 2014’s Managing the Risks report, ExxonMobil stated that
it applies a proxy cost of carbon to the “use” of fossil fuels, and that application occurs when
ExxonMobil assesses how carbon-related policies might affect the macro demand for energy. 33
ExxonMobil has not suggested that the GHG cost applied when evaluating its projects follows
each barrel of oil ExxonMobil removes from the ground through its end use.
A clear-eyed analysis of the “evidence” mischaracterized in the Attorney General’s
headline-grabbing brief thus shows it is not indicative of the misconduct he so desperately
wishes to uncover. Instead, it actually confirms that ExxonMobil is doing what it says it is
doing: incorporating a proxy cost of carbon into its energy demand outlook and GHG costs into
its project economics. The Attorney General’s deficient and inaccurate showing—particularly
after eighteen months and 2.8 million documents—is woefully insufficient to support his
crushingly burdensome document subpoena.
B.

Lacking Any Sense of Proportionality, the Attorney General’s Document Subpoena
Should Also Be Quashed as Unduly Burdensome and Oppressive.
With no basis in fact, the document subpoena should be quashed at the threshold. But

even if the Attorney General were able to clear that initial hurdle, his subpoena should
nevertheless be quashed for its disproportional breadth and burden. See, e.g., Airbnb, 44 Misc.

31
32
33

Opp. 8 n.8, 9.
Oleske Ex. 1.
Id. at 17–18.

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3d at 356 (recognizing need for courts to weigh “the scope and basis for the issuance of the
subpoena against the factual predicate for the investigation ‘lest the powers of investigation . . .
become potentially instruments of abuse and harassment.’” (quoting Myerson, 33 N.Y.2d at
258)). Nothing about the document subpoena is proportional to the alleged investigative need.
The Attorney General first tries to sidestep this fact by denying that his subpoenas are
subject to any rule of proportionality at all. 34 But John Oleske—the same Assistant Attorney
General who signed the brief making this argument—previously stood before this Court and
agreed that the Attorney General’s investigation is, in fact, governed by the rule of
proportionality this Court endorsed, but which the Attorney General now disclaims. 35
The Attorney General next claims that “a subpoena recipient cannot simply make general
claims that the subpoena is unduly burdensome, but rather must substantiate th[o]se claims.”36
The law is clear, however, that a subpoena will be quashed whenever it is “patently overbroad,
burdensome and oppressive”—characteristics that are self-evident from a bare review of the
document subpoena issued in this case. Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d
337, 344 (1st Dep’t 1997). Specificity is the watchword: A subpoena cannot seek information
beyond “limited or specifically defined subjects” so as to turn an investigation into “the
proverbial ‘fishing expedition.’” Id. at 342, 344; see also D’Alimonte v. Kuriansky, 144 A.D.2d
737, 739 (3d Dep’t 1988) (quashing the Attorney General’s subpoena, which “require[d]
production of any and all payment records,” when there was “no limitation as to time or client”).
Yet that is exactly what the document subpoena does here.
As set forth in ExxonMobil’s opening brief, by its terms, the subpoena sweeps in an

34
35
36

Opp. 14 n.14.
See NYSCEF No. 146 (Mar. 22, 2017 Hr’g Tr.) at 23:13–14 (responding to the Court’s statement that “there’s a
rule of proportionality here,” Mr. Oleske said “that’s true”).
Opp. 16.

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undifferentiated quantum of information that resides in multiple departments of the company and
across varied regions. The Attorney General erroneously characterizes the burden as modest,
claiming that the subpoena “limit[s] its request to instances relating to Exxon’s decision to apply
proxy costs to its investment and impairment decisions.” 37 But, as explained above, that analysis
(using the GHG cost) can occur for any investment decision, when appropriate.

Were

ExxonMobil to comply, it would need to document each instance in the past dozen years that it
has (i) evaluated an oil and gas project, (ii) considered whether to impair an asset, and
(iii) estimated reserves and resources. 38 The subpoena then demands that ExxonMobil create
separate spreadsheets providing detailed information and analysis about how the GHG cost has
factored into each decision. It does not take a background in oil and gas to ascertain that this
analysis would touch on nearly all of ExxonMobil’s business decisions. 39
Were that all, the burden of compliance would be staggering; but the subpoena also
requires that ExxonMobil produce a sweeping array of documents, including (i) all documents
relied upon in creating these spreadsheets; (ii) documents produced from 142 custodians and 11
shared locations from the date of the 2015 subpoena through the date of the new subpoena;
(iii) twelve years of documents related to the ExxonMobil and Imperial reserves committees, the
impairment of long-lived assets, and all communications with the securities industry; and
(iv) copies of all materials provided to the SEC. 40 These demands dwarf those of the 2015
subpoena, in response to which ExxonMobil has already produced over 2.8 million pages. See
N.Y. State Comm’n on Judicial Conduct v. Doe, 61 N.Y.2d 56, 62 (1984); Smith v. Russo-Asiatic
Bank, 170 Misc. 408, 411 (Sup. Ct. Albany Cnty. 1939) (noting that a document subpoena may not

37
38
39
40

Opp. 16–17.
Anderson ¶ 3.
Anderson ¶ 2.
Anderson ¶ 4.

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require “production of all the books and papers of a party so that it is universal in its operation”).

None of the precedents identified by the Attorney General have compelled compliance
with a subpoena that imposes such an onerous burden. Alfred E. Mann Living Trust v. ETIRC
Aviation S.a.r.L., for example, upheld a subpoena seeking only limited documents necessary to
determine “the nature and whereabouts of . . . income, property, and other assets” to satisfy a
judgment already issued against the defendant. 55 Misc. 3d 1211(A), at *2 (Sup. Ct. N.Y. Cnty.
2010). In N.Y. State Joint Comm’n on Pub. Ethics v. Campaign for One N.Y., Inc., the public
ethics commission, as part of an investigation into improper lobbying, sought only a few years’
worth of communications that a political nonprofit had exchanged with donors. 53 Misc. 3d 983,
997 (Sup. Ct. Albany Cnty. 2016). In Airbnb, the Attorney General’s much more modest
subpoena demanded only limited electronically stored information that was “readily accessible”
to the subject of the investigation. 44 Misc. 3d at 359. None of those subpoenas came close to
requiring the recipients to produce documents related to entire swaths of their business over a
twelve year period, let alone demanding the creation of detailed analyses.
Instead, the Attorney General’s demands align with those courts have quashed or
modified as improperly burdensome. For example, the court in Reuters found a subpoena overly
burdensome because it “would require at least preliminary review of all files of all persons at
Dow who have dealt with [a particular issue]” to determine responsiveness. 231 A.D.2d at 344.
Much in the same way, the Attorney General’s subpoena here, by its own terms, would require
that ExxonMobil perform at least a preliminary review of each of its oil and gas investment
decisions for the last twelve years to determine the application of GHG costs. Even if the
Attorney General’s wrongheaded declaration that “there are few instances in which Exxon

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actually applied proxy costs [sic] to its investment or impairment decisions” were correct 41—
which it is not—the subpoena still would be unduly burdensome because it demands such a
preliminary investigation. It therefore should also be quashed on that basis.
II.

The Attorney General’s Request that ExxonMobil Prepare New Analyses Cannot Be
Salvaged by Relabeling Them “Interrogatories.”
In an attempt to salvage his “requests for information” (“RFIs”) that seek to conscript

ExxonMobil to do his work for him, the Attorney General attempts to simply relabel them as
“interrogatories.” But it is no answer for the Attorney General to claim that he has the power to
issue interrogatories and that RFIs are a rare sub-species of interrogatory. That is because the
RFIs here go so far beyond any reasonable limits on the proper purpose and scope of an
interrogatory as to be unworthy of the name. Indeed, as New York courts have held, such
overbroad but detailed interrogatories would “not [be] the proper vehicle for pursuing
information on these points because they do not pinpoint the critical areas” of the Attorney
General’s investigation. Litemore Elec. Co. v. City of N.Y., 96 A.D.2d 1022, 1023 (1st Dep’t
1983); see also Mijatovic v. Noonan, 172 A.D.2d 806, 806 (2d Dep’t 1991). If styled as
interrogatories, RFIs would thus be both overbroad and procedurally improper.
But these RFIs are not interrogatories; they are part of a subpoena duces tecum. And, as
explained in ExxonMobil’s opening brief, 42 a subpoena duces tecum—whether issued by a
government investigator, or a private party—may not compel the creation of new documents. 43
That is exactly what the Attorney General’s improper RFIs would seek to do by conscripting
ExxonMobil to manufacture prolix spreadsheets and tables not currently in existence from data
not currently organized in the manner the Attorney General prefers. These requests amount to

41
42
43

Opp. 17.
Br. 17–19.
Id.

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nothing more than an improper demand that ExxonMobil prepare an analysis of its business for
the sole purpose of supporting the Attorney General’s litigation position.
III.

The Probe of ExxonMobil’s Proved Reserves and Asset Impairments Is Preempted.
Notwithstanding the Attorney General’s claim to have abandoned his inquiry into

ExxonMobil’s proved reserves—which are estimated in accordance with SEC regulations—he
nevertheless attempts to leave the door ajar to tread on exclusively federal turf. Indeed, the
Attorney General’s brief inexplicably claims that ExxonMobil did not appropriately “apply” a
prospective “proxy cost” of carbon during “evaluation of its reserves” notwithstanding its
concession that, under binding SEC regulations, reserves are estimated in accordance with
retrospective oil prices. 44 This Court should shut the door once and for all. For the reasons set
forth in ExxonMobil’s opening brief, 45 the Attorney General may not seek to punish
ExxonMobil for declining to consider possible future climate change policies in estimating its
proved reserves, nor may the Attorney General compel ExxonMobil to adopt his preferred
assumptions about the potential impact of future climate change policies when determining
whether assets are impaired.

The Attorney General’s investigative requests probing

ExxonMobil’s reserves estimates and asset impairment analyses should therefore be quashed.
IV.

ExxonMobil Does Not Control Imperial.
As the proponent of the deposition of Jason Iwanika, a Canadian citizen working for a

separately incorporated Canadian company, the Attorney General bears the burden of
demonstrating Mr. Iwanika is subject to his jurisdiction. People ex rel. Spitzer v. H & R Block,
Inc., 847 N.Y.S.2d 903 (Sup. Ct. N.Y. Cnty. 2007). The Attorney General asserts repeatedly that
“a parent corporation can be required” to produce testimony from employees of controlled

44
45

Opp. 8.
Br. 19–23.

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subsidiaries, which is not in dispute. 46 The relevant issue, left unaddressed by the Attorney
General’s brief, is the standard under New York law for establishing that one company controls
another. That exacting standard makes clear that ExxonMobil does not control Imperial, and
thus cannot be compelled to produce an Imperial employee for a deposition.
The Court of Appeals established the modern standard for determining corporate control
over a subsidiary in Delagi v. Volkswagenwerk A.G. of Wolfsburg, Germany, 29 N.Y.2d 426
(1972). There, the court considered whether jurisdiction was properly acquired over a foreign
corporation by reason of its control of New York corporate entities. The court found it lacked
jurisdiction, noting that it had “never held a foreign corporation present on the basis of control,
unless there was in existence at least a parent-subsidiary relationship.” Id. at 432. Even then, the
control over the subsidiary’s activities “must be so complete that the subsidiary is, in fact, merely
a department of the parent.” Id. This broad principle applies whether courts seek to assert
jurisdiction over a foreign parent company through a subsidiary, as discussed in Delagi, or a
foreign subsidiary through a parent company, as in Public Administrator of New York County v.
Royal Bank of Canada, 19 N.Y.2d 127, 132 (1967).
The Attorney General fails here to address, much less satisfy, the “mere department” test.
In applying that test, “[t]he essential factor is common ownership”—namely, that “nearly
identical ownership interests must exist before one corporation can be considered a department
of another corporation for jurisdictional purposes.” Volkswagenwerk Aktiengesellschaft v. Beech
Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984); see also FIA Leveraged Fund Ltd. v. Grant
Thornton LLP, 2017 WL 2110774, at *1 (1st Dep’t May 16, 2017) (stating First Department
adopted factors set out in Volkswagenwerk). Thus, even where, as here, one corporation owns a
majority interest in another, courts decline to assert jurisdiction where control is less than total.
46

Opp. 23 (emphasis added).

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OneBeacon Am. Ins. Co. v. Newmont Mining Corp., 82 A.D.3d 554, 554–55 (1st Dep’t 2011).
Similarly, the Attorney General has offered scant evidence in support of other factors
considered under the “mere department” test. These additional factors include: (1) financial
dependency of the subsidiary on the parent; (2) the degree to which the parent interferes in the
selection and assignment of the subsidiary’s executive personnel and fails to observe corporate
formalities; and (3) the degree of the parent’s control of the subsidiary’s marketing and
operational policies. Volkswagenwerk, 751 F.2d at 120–122.
The Attorney General presents no evidence in support of the first factor, an effective
concession of the reality that Imperial, a publicly traded company in its own right, is financially
independent.

As for corporate separateness, the Attorney General points to Imperial’s

cooperation with ExxonMobil in accommodating the Attorney General’s requests for documents
from Imperial employees.

But nothing in the record suggests that Imperial’s past

accommodation has been anything other than gratuitous and voluntary. ExxonMobil has no
ability to compel further accommodations if Imperial declines to extend them, and the Attorney
General has no evidence to the contrary. Finally, the Attorney General offers nothing more than
a single email exchange to demonstrate ExxonMobil’s control over Imperial’s operational
policies, but that email shows Mr. Iwanika seeking “guidance,” not instructions, and would be
too slender a reed in any event to find that Imperial is a mere department. 47 Nor does Mr.
Iwanika’s appearance on an ExxonMobil privilege log counsel a different result, 48 as a common
interest between ExxonMobil and Imperial in responding to the Attorney General’s subpoena
provides a complete explanation for that.
Far from being a “mere department,” Imperial is an independent affiliate of ExxonMobil.
47
48

Oleske Ex. 6.
Opp. 24–25.

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Imperial is a publicly traded company—30% of its shares are widely held. 49 Furthermore, five
of Imperial’s seven directors are outside directors with no prior history of employment at
ExxonMobil.50

These directors have legal responsibility to all shareholders, not only to

ExxonMobil.51 By the same token, the day-to-day relationship between the two companies also
reinforces their separateness. ExxonMobil employees cannot (i) hire, fire, or discipline Imperial
employees; (ii) approve Imperial employee expenses; or (iii) sign agreements on behalf of
Imperial. 52 And ExxonMobil’s recommendations regarding policies and guidelines to Imperial
do not automatically take effect as they must first be reviewed and adopted by Imperial’s
management. 53 The “mere department” test forecloses the Attorney General from asserting
jurisdiction over Imperial.
Rather than addressing the “mere department” test, however, the Attorney General relies
on two decisions addressing facts far different from those at issue here. First, Bank of Tokyo–
Mitsubishi, New York Branch v. Kvaerner examined the relationship between a parent and its
wholly owned subsidiary, which is not at issue here. 671 N.Y.S.2d 90 (Sup. Ct. N.Y. Cnty.
1998). Second, Grande Prairie Energy LLC v. Alstom Power, Inc. examined a fact pattern
where, unlike here, (i) the two companies shared the same name; (ii) the requested witness from
the subsidiary was a principal participant in the transaction that precipitated the dispute with the
plaintiff; and (iii) a member of the defendant’s negotiating team sent an email to the plaintiff that
described the parent and subsidiary companies as “one organization, coordinated, and not
working in a vacuum.” 798 N.Y.S.2d 709 (Sup. Ct. N.Y. Cnty. 2004). Nothing in these

49
50
51
52
53

Anderson ¶¶ 11, 12.
Id. ¶ 13.
Id.
Id. ¶ 14.
Id. ¶ 15.

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decisions questions the applicability of the “mere department” test, just as nothing in the
Attorney General’s brief suggests that the test has been satisfied.
V.

The Court Should Not Allow the Attorney General to Create a Sideshow of
Discovery about Discovery.
Seeking controversy and headlines, the Attorney General accuses ExxonMobil of

destroying documents from purportedly “key custodians.” 54 The claim is baseless, following
eighteen months of document production from 142 custodians, yielding 2.8 million pages of
documents.
When the Attorney General first raised questions about ExxonMobil’s document
collection and production, ExxonMobil filed a detailed submission explaining the processes used
to collect Management Committee documents and providing extensive information about the
Wayne Tracker account, 55 which the Court found at a March 22, 2017 hearing to have
“addressed each of the items [the Attorney General] . . . requested.” 56 To ensure that the
Attorney General received all he was entitled to review on this point, the Court directed
ExxonMobil to attest to the facts set forth in its thorough submission, and authorized the
Attorney General’s office to “cross-examine the affiants” at subsequent depositions.57
ExxonMobil has complied with those instructions.

Through these appropriate means, the

Attorney General could address all outstanding questions about ExxonMobil’s discovery.
The Attorney General now complains, however, that the ample remedies offered by the
Court are not enough, and further suggests that ExxonMobil failed to place a number of

54
55
56

57

Opp. 22.
NYSCEF No. 128.
NYSCEF No. 146 (Mar. 22, 2017 Hr’g Tr.) at 4:15–20. An analysis of all produced Wayne Tracker emails
reveals that each was to, from, copying, or blind copying another custodian from whom ExxonMobil produced
documents, or was found in the files of another produced custodian.
Id. at 14:21–24.

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additional, and supposedly “key,” custodians on hold in November 2015. 58 That claim holds no
water.

Sixteen of the claimed “key” custodians are executive assistants or perform

administrative functions for senior management (the “Custodians”). ExxonMobil had no
reasonable basis to believe that any of these Custodians possessed unique responsive
documents—and analysis of ExxonMobil’s recent production confirms that belief was accurate.
•

As an initial matter, two of the Custodians were placed on hold by ExxonMobil in
November 2015, as ExxonMobil informed the Attorney General on May 3, 2017. 59

•

Only 863 of the 2,184 documents produced from the remaining fourteen Custodians were
actually responsive—the remaining documents were non-responsive document family
members ExxonMobil included in its production.

•

Many of the documents are duplicates of documents in the possession of other custodians
or of each other, or they come from periods when the Custodians did not support senior
management. With those documents excluded, only 43 of the 863 responsive documents
were unique and not privileged.

•

Of the 43 responsive documents, 12 were emails reasonably likely to have appeared in
the files of the key custodians from whom ExxonMobil produced documents—indeed,
other custodians’ names appear in those documents’ from, to, copy, or blind copy lines.

•

Of the remaining 31 documents, 26 are purely logistical, 2 contain a stray, nonsubstantive reference to climate change, 1 is clerical, 1 is a public document, and 1 is a
non-ExxonMobil document.
ExxonMobil’s recent productions thus bear out the Company’s long-standing belief that

the 16 Custodians about whom the Attorney General so loudly complains were not, and are not,
reasonably likely to possess uniquely responsive documents.
Setting aside these custodians, the Attorney General alleges that yet another custodian
was not placed on hold in November 2015: Donald Humphreys, who retired in 2013, two years

58

59

Opp. 21–22. Although only obliquely referenced in the Attorney General’s brief, the Oleske Affirmation
suggests that ExxonMobil failed to properly preserve documents relating to ExxonMobil’s oil and gas reserves.
(Oleske ¶¶ 87–90). After the Attorney General evinced an investigative interest in ExxonMobil’s reserves on
June 24, 2016, ExxonMobil placed 37 reserves-related custodians on hold, a fact of which the Attorney General
was informed in a September 8, 2016 letter. (Anderson Ex. P.) Subsequently, of course, this Court held—as
ExxonMobil contended—that the Attorney General’s November 2015 subpoena did not call for documents
relating to ExxonMobil’s reserves except as related to climate change.
Oleske Ex. 17.

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before the Attorney General issued the original subpoena. ExxonMobil has produced to the
Attorney General all responsive documents retained by Humphreys at the time of his retirement.
Accordingly, the Attorney General’s lamentations about ExxonMobil’s supposed “document
destruction” are as unfounded as they are irresponsible and provide no legitimate basis to delve
deeper into ExxonMobil’s robust subpoena compliance.
CONCLUSION
As with so much else in his investigation, the Attorney General’s justification for his
abusive new subpoenas overpromises and under-delivers. Rather than supply a legitimate basis
for his continued investigation, the Attorney General offers only a paltry few documents buried
under a mountain of distortions and self-serving characterizations. Such “minimal, equivocal
documentary proof” is insufficient to support further investigation. Napatco, 43 N.Y.2d at 885–
86. The Attorney General’s subpoena duces tecum should also be quashed for the independent
reason that it imposes a burden far out of proportion to the non-existent evidentiary record
claimed to support it. Nor should the Attorney General be permitted to engage in investigative
sleight of hand by shifting the focus of his inquiry to ExxonMobil’s subpoena compliance, an
area of well-trodden ground where the Court has already determined that ExxonMobil has
responded to each of the Attorney General’s stated concerns. Finally, the Attorney General
cannot compel ExxonMobil to produce an employee of a separate, independent corporation for a
deposition. Lacking any basis in the facts or in proportionality, these subpoenas cannot be
allowed to stand. Accordingly, the Attorney General’s cross-motion to compel should be denied,
and ExxonMobil’s motion to quash should be granted.

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 INDEX NO. 451962/2016

FILED: NEW YORK COUNTY CLERK 06/09/2017 01:08 PM
NYSCEF DOC. NO. 205

Dated:

RECEIVED NYSCEF: 06/09/2017

June 9, 2017
New York, NY
Respectfully submitted,
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
/s/ Theodore V. Wells, Jr.
Theodore V. Wells, Jr.
twells@paulweiss.com
Michele Hirshman
mhirshman@paulweiss.com
Daniel J. Toal
dtoal@paulweiss.com
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
Fax: (212) 757-3990
Justin Anderson
janderson@paulweiss.com
2001 K Street, NW
Washington, D.C. 20006-1047
(202) 223-7300
Fax: (202) 223-7420
Attorneys for Exxon Mobil Corporation

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