The subpoena targets included the Union of Concerned Scientists and the Rockefeller Family Fund, which had been financially supporting environmental advocates with money ultimately derived, ironically, from Standard Oil, founded by family patriarch John D. Rockefeller. The subpoenas to some targets sought, among other things, records of contracts the groups had with Healey, Schneiderman and former Vice President Al Gore, a prominent activist on climate change.
"Aggressive legal bullying is not a new strategy for these companies," says Peter Frumhoff, chief climate scientist at the Union of Concerned Scientists, who was served individually with a separate subpoena at the time.
"Part of their goal is to take up a lot of people's time, send a shot across the bow of others," Frumhoff says. "No matter what the actual outcome is, it's a reasonable interpretation that it's intended to intimidate not only the nonparty that's being focused on, but to send a broader signal that those who seek to hold companies accountable will pay a price."
Around the same time as the oil companies issued their subpoenas, numerous environmental groups were served with subpoenas by the House Committee on Science, Space and Technology, which was then chaired by Rep. Lamar Smith (R-Texas), a notable climate change denier with close ties to the oil and gas industry.
UCS never turned over any documents to Exxon, Frumhoff told me. The Texas lawsuit was ultimately thrown out of court and the subpoenas rendered moot. Smith never enforced his subpoenas, and his anti-science campaign ended in 2018 with his retirement and the advent of a Democratic majority in the House.
Healey continued her investigation (Schneiderman left office in 2018 amid allegations that he physically abused women), which has culminated in a lawsuit she filed against Exxon Mobil in October, alleging that it misled Massachusetts consumers and investors about "the risks to Exxon's business posed by fossil fuel-driven climate change."
Nonparties such as the consumer and environmental groups served with oil industry subpoenas have limited options. Simply ignoring the subpoenas could leave them open to being cited for defying a court order. They can file a motion to quash in court, typically asserting that the information sought is irrelevant to the underlying case or can be obtained from other sources, or that the subpoena imposes an undue burden or expense.
At that stage, however, "the person moving to quash a subpoena bears the burden of proof," says Simona Grossi, an expert in federal and state civil procedure at Loyola Marymount University Law School. "Mere assertions of undue burden or disclosure of confidential information will be insufficient to support a motion to quash."
Its adversary also can file a motion to compel compliance, raising the possibility of a lengthy and expensive fight before a judge.
More commonly, nonparties try to answer a subpoena by complying with the more routine and least burdensome demands and raising objections about the rest directly with the opposing lawyers, in the hope of persuading them to narrow the subpoena or drop it entirely.