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Court Decides Exxon’s Challenge To Massachusett’s Civil Discovery Demand Re Global Warming Investigation

Posted on April 25th, 2018

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In Exxon Mobile Corporation v. Attorney General, No. SJC-12376 (Mass. April 2018), controversy erupted upon the release of documents in 2015 by news reporters, of internal documents originating from Exxon Mobil Corporation (“Exxon”) purporting to show that the company knew (at a time long before public awareness) that emissions from fossil fuels contributed to global warming and climate change.  The documents also allegedly contained information showing that even though it would be necessary to drastically reduce global fossil fuel consumption to avoid the consequences of global warming, Exxon not only failed to disclose that knowledge to the public, but it further sought to undermine the evidence of climate change in order to preserve its value as a company.

Upon reviewing this information, the Attorney General of Massachusetts believed that Exxon’s marketing or sale of fossil fuel products in Massachusetts may have violated the State’s primary consumer protection law. Based on her authority, the Attorney General issued a Civil Investigative Demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon’s knowledge of and activities related to climate change. Exxon responded by filing a motion in the Superior Court seeking to set aside or modify the C.I.D.

Exxon challenged the C.I.D. based on its content, arguing that it was overbroad and unduly burdensome, as well as arbitrary and capricious. Exxon argued that these points constituted “good cause” warranting modification or setting aside the C.I.D.  As the party moving to set aside the C.I.D., Exxon bore the burden to show good cause why it should not be compelled to respond.  The Court examined whether Exxon met the criteria needed to sustain that burden.

The law authorizes the Attorney General to examine any documentary material relevant to such alleged unlawful method, act or practice that is the subject of the Attorney General’s investigation. The Court reviewed the three-pronged test which is used to balance the opposing interests of the investigator and the investigated:  (1) whether the C.I.D. described with reasonable particularity the material required; (2) second, whether the material required was not plainly irrelevant to the authorized investigation; and, (3) whether the quantum of material required does not exceed reasonable limits. The Court agreed with the judge that the C.I.D. described with reasonable particularity the material requested, given its focus on Exxon’s knowledge of the impacts of carbon dioxide and other fossil fuel emissions on the Earth’s climate. With respect to the relevance of the materials sought, Exxon argued that the Attorney General’s request for historic documents dating as far back as 1976 were not relevant to an investigation under the relevant law, which carried a four-year statute of limitations.

Exxon already complied with a request for similar documents from New York’s Attorney General. The judge reasonably inferred that it would not be too burdensome for Exxon, having already complied with that request, to comply with the Massachusetts C.I.D., which was similar in nature.

The Court affirmed the order denying Exxon’s motion to modify or set aside the C.I.D., and affirmed the order granting the Attorney General’s cross motion to compel Exxon’s compliance.

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