Sletten observes that it was the plaintiffs, not the oil companies, who first "injected" Consumer Watchdog into the case, by citing the reports written by Court or published by Consumer Watchdog in their lawsuits.
But that gave the oil companies a convenient opportunity to dump subpoenas on the consumer group.
Sletten didn't assert that Court or Consumer Watchdog had anything to do with drafting or filing the lawsuits. Indeed, Flanagan says the plaintiffs merely "cut and pasted" the group's reports into their legal complaints without even informing the group in advance that it was doing so. The reports, he says, are all public documents.
The oil companies' actions reflect a harsh reality of civil litigation in federal court: Almost anyone can be dragooned into a lawsuit and forced to expend money and time to extricate themselves from the burden of a subpoena.
"It is kind of odd that somebody can be minding their own business and all of a sudden get a subpoena, and the default is to expect compliance," says UCLA law professor David Marcus, a specialist in federal courts and civil procedure who has no involvement in the oil company case. But them's the rules.
Judges tend to be relatively more solicitous of the burdens of non-parties than of plaintiffs and defendants, Marcus says, but that doesn't mean the targets can count on getting away scot-free. Judges have wide latitude in weighing claims that a subpoena seeks irrelevant material or infringes on a target's 1st Amendment rights.
The lawsuits underlying the subpoenas were filed against Chevron, Exxon Mobil and six other oil and gas companies in 2015 and 2018 and consolidated in federal court in San Diego. The oil companies reject the allegations.
So what's going on here? The companies' overt goal is to discredit the group's articles about the oil industry. But Consumer Watchdog says there's more to it. The group says the subpoenas are part of a "strategy to harass, intimidate, and inconvenience the organization as punishment for its investigative reporting into the oil and gasoline industry over the last 25 years."
This isn't the first time that the oil companies have been accused of wielding nonparty subpoenas as weapons against consumer and environmental activists.
In 2016, Exxon Mobil sought to defang a pending investigation of its role in climate change by Attorneys General Maura Healey of Massachusetts and Eric Schneiderman of New York by issuing subpoenas and subpoena threats to a passel of environmental groups. The subpoenas were ostensibly connected to a lawsuit Exxon Mobil had filed against Healey and Schneiderman in federal court in Texas to block their investigation.