Case 3:17-cv-06011-WHA Document 206 Filed 04/04/18 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 M. Randall Oppenheimer (SBN 77649) Dawn Sestito (SBN 214011) O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 E-Mail: roppenheimer@omm.com E-Mail: dsestito@omm.com Theodore V. Wells, Jr. (pro hac vice) Daniel J. Toal (pro hac vice) Jaren Janghorbani (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 E-Mail: twells@paulweiss.com E-Mail: dtoal@paulweiss.com E-Mail: jjanghorbani@paulweiss.com Attorneys for Defendant Exxon Mobil Corporation 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 16 17 18 19 THE PEOPLE OF THE STATE OF CALIFORNIA, acting by and through Oakland City Attorney BARBARA J. PARKER, Plaintiff and Real Party in Interest, 20 21 22 23 24 25 26 27 v. BP P.L.C., a public limited company of England and Wales, CHEVRON CORPORATION, a Delaware corporation, CONOCOPHILLIPS COMPANY, a Delaware corporation, EXXONMOBIL CORPORATION, a New Jersey corporation, ROYAL DUTCH SHELL PLC, a public limited company of England and Wales, and DOES 1 through 10, First Filed Case: No. 3:17-cv-6011-WHA Related Case: No. 3:17-cv-6012-WHA EXXON MOBIL CORPORATION’S RESPONSE TO MARCH 21, 2018 NOTICE TO DEFENDANTS RE TUTORIAL Case No. 3:17-cv-6011-WHA Defendants. 28 EXXON MOBIL CORPORATION’S RESPONSE TO MARCH 21, 2018 NOTICE TO DEFENDANTS RE TUTORIAL NOS. 17-CV-6011-WHA AND 17-CV-6012-WHA Case 3:17-cv-06011-WHA Document 206 Filed 04/04/18 Page 2 of 6 1 2 3 THE PEOPLE OF THE STATE OF CALIFORNIA, acting by and through the San Francisco City Attorney DENNIS J. HERRERA, Plaintiff and Real Party in Interest, 4 5 6 v. 10 BP P.L.C., a public limited company of England and Wales, CHEVRON CORPORATION, a Delaware corporation, CONOCOPHILLIPS COMPANY, a Delaware corporation, EXXONMOBIL CORPORATION, a New Jersey corporation, ROYAL DUTCH SHELL PLC, a public limited company of England and Wales, and DOES 1 through 10, 11 Defendants. 7 8 9 Case No. 3:17-cv-6012-WHA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXXON MOBIL CORPORATION’S RESPONSE TO MARCH 21, 2018 NOTICE TO DEFENDANTS RE TUTORIAL NOS. 17-CV-6011-WHA AND 17-CV-6012-WHA Case 3:17-cv-06011-WHA Document 206 Filed 04/04/18 Page 3 of 6 Defendant Exxon Mobil Corporation (“ExxonMobil”) submits this statement in response 1 2 to the Court’s March 21, 2018 Notice to Defendants re Tutorial (“Statement”). No. 3:17-cv- 3 6011, ECF No. 178. BACKGROUND 4 On February 27, 2018, the Court issued a Notice re Tutorial. ECF No. 135. That Notice 5 6 invited “counsel to conduct a two-part tutorial on the subject of global warming and climate 7 change,” and scheduled the tutorial for March 21, 2018. Id. The Court’s invitation directed 8 counsel to (i) “trace the history of scientific study of climate change,” and (ii) “set forth the best 9 science now available on global warming, glacier melt, sea rise, and coastal flooding.” Id. The 10 following week, on March 6, 2018, the Court instructed counsel to address specific questions 11 during the tutorial. ECF No. 138. On March 20, 2018, ExxonMobil filed a motion contesting 12 the Court’s personal jurisdiction. ECF No. 168. The tutorial was held the following day. 13 Counsel for defendant Chevron Corporation (“Chevron”), over which this Court has personal 14 jurisdiction, presented at the tutorial. The Court explained that “to be fair [to] all of you who 15 have objected to jurisdiction and/or service of process, this will be deemed to be a special 16 appearance.” Tutorial Tr. at 6:9-11. After the tutorial ended, the Court ordered all non- 17 presenting defendants to submit a statement explaining the extent to which they are aligned with 18 statements made by counsel for Chevron. ECF No. 178. PURPOSE OF TUTORIAL 19 At the beginning of the March 21 tutorial, the Court clarified the tutorial’s purpose. Your 20 21 Honor stated: “This is not a trial. In these technology cases . . . we often have these tutorials so 22 that the poor Judge can learn some science, and it helps to understand the science.” Tutorial Tr. 23 at 6:25–7:4. “[T]he purpose” is “to try to educate the Judge.” Id. at 7:9-10. The Court further 24 explained: “[The experts] are not going to be under oath. This is not cross-examination. That 25 will all come later if we get that far.” Id. at 9:1-3. 1 26 1 27 28 Consistent with these instructions, other courts in this district have stated that the purpose of a tutorial “is to allow each party to inform the Court about the background of the technical information which is involved in the case and the nature of the dispute.” U.S. Ethernet Innovations, LLC v. Acer, Inc., No. C 10-03724 JW, 2010 WL 9934741, at *4 (N.D. Cal. Dec. 21, 2010). Thus, typically, “[s]tatements made during [a] tutorial may not be cited as judicial 1 EXXON MOBIL CORPORATION’S RESPONSE TO MARCH 21, 2018 NOTICE TO DEFENDANTS RE TUTORIAL NOS. 17-CV-6011-WHA AND 17-CV-6012-WHA Case 3:17-cv-06011-WHA Document 206 Filed 04/04/18 Page 4 of 6 STATEMENT 1 2 In keeping with the educational purpose of the March 21 tutorial, and without waiver of 3 objections to the Court’s jurisdiction, ExxonMobil offers this Statement in response to the 4 Court’s order seeking an explanation regarding the extent to which ExxonMobil is aligned with 5 statements made by counsel for Chevron. 6 • to understand and address the risk. See Tutorial Tr. at 82:11-12. 7 8 • global solutions. See id. at 82:13-15. 10 • The climate system is warming in part due to increased concentrations of greenhouse gases in the atmosphere. See id. at 90:15-24. 12 13 Addressing the risk of climate change, providing economic opportunity, and lifting billions out of poverty are interrelated issues that require practical, cost-effective, 9 11 The risk of climate change is clear, significant, and warrants comprehensive policies • Human activities, including the combustion of coal, oil, and natural gas—and driven 14 largely by population size, economic activity, lifestyle, energy use, land use patterns, 15 technology, and climate policy—have increased the concentration of greenhouse 16 gases in the atmosphere. See id. at 126:25–127:2. 17 • The Intergovernmental Panel on Climate Change (“IPCC”) is an international body 18 that assesses the state of climate science and policy options for adapting to, and 19 mitigating, risks associated with a changing climate. See id. at 84:13-18. 20 • IPCC Assessment Reports provide contemporaneous analyses of existing climate 21 science research. See id. at 85:24–86:1. The Assessment Reports are a reference 22 point for understanding how scientific knowledge and confidence regarding human 23 influence on climate have evolved over the past 30 years. See id. at 87:9-12. 24 25 26 27 28 admissions against a party.” Id. “The substantive content of a tutorial is purely for the [judge’s] background. While a transcript of the proceeding is made and copies of materials are provided to the [judge] and the parties, none of those materials thereby become part of the evidentiary record . . . .” Peter S. Menell et al., Section 337 Patent Investigation Management Guide § 7.6 (2012) (emphasis added). Tutorial presentations may include “demonstrations, expert testimony, or audio-visual materials,” but cross examination is not permitted. Ethernet Innovations, 2010 WL 9934741, at *4. 2 EXXON MOBIL CORPORATION’S RESPONSE TO MARCH 21, 2018 NOTICE TO DEFENDANTS RE TUTORIAL NOS. 17-CV-6011-WHA AND 17-CV-6012-WHA Case 3:17-cv-06011-WHA Document 206 Filed 04/04/18 Page 5 of 6 1 • The climate models relied on by the IPCC are better suited to model the potential 2 influence of increased greenhouse gas concentrations on global mean temperature 3 than to identify local impacts—including glacier melt, sea level rise, and coastal 4 flooding—associated with a warming climate system. See id. at 158:1-17. 5 CONCLUSION 6 ExxonMobil takes the position that the above Statement—and statements offered by 7 counsel for Chevron at the March 21 tutorial—are not judicial admissions. And, although IPCC 8 Assessment Reports are a reference point for understanding how scientific knowledge and 9 confidence have evolved over the past 30 years and contain a wide range of data and potential 10 outcomes, ExxonMobil does not adopt every statement made in each of the five Assessment 11 Reports published to date. Finally, ExxonMobil shares the view expressed by counsel for 12 Chevron at the tutorial that “the resolution of climate science issues aren’t going to be 13 determinative here for all the reasons in our motion to dismiss.” Id. at 82:7-8. At its core, this 14 case is “about whether a tort suit like this one is the right way to debate and decide those policy 15 choices.” Id. at 83:12-14. 16 17 18 19 20 21 22 23 24 25 26 27 28 3 EXXON MOBIL CORPORATION’S RESPONSE TO MARCH 21, 2018 NOTICE TO DEFENDANTS RE TUTORIAL NOS. 17-CV-6011-WHA AND 17-CV-6012-WHA Case 3:17-cv-06011-WHA Document 206 Filed 04/04/18 Page 6 of 6 1 DATED: April 4, 2018 Respectfully submitted, 2 By: /s/ Dawn Sestito 3 M. Randall Oppenheimer (SBN 77649) Dawn Sestito (SBN 214011) O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 E-Mail: roppenheimer@omm.com E-Mail: dsestito@omm.com 4 5 6 7 8 9 Theodore V. Wells, Jr. (pro hac vice) Daniel J. Toal (pro hac vice) Jaren Janghorbani (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 E-Mail: twells@paulweiss.com E-Mail: dtoal@paulweiss.com E-Mail: jjanghorbani@paulweiss.com 10 11 12 13 14 15 Attorneys for Defendant EXXON MOBIL CORPORATION 16 17 18 19 20 21 22 23 24 25 26 27 28 4 EXXON MOBIL CORPORATION’S RESPONSE TO MARCH 21, 2018 NOTICE TO DEFENDANTS RE TUTORIAL NOS. 17-CV-6011-WHA AND 17-CV-6012-WHA