By Karen Savage
New York – New York Attorney General Eric Schneiderman said over the past 18 months, ExxonMobil has produced nearly 3 million pages of documents in response to his investigation into how it calculates and communicates the risks of climate change to shareholders.
Schneiderman alleges the documents prove Exxon used two methods of climate accounting— one for public disclosure to investors and one for private internal use—central to his argument that the company is potentially defrauding investors. Also revealed in the massive pile of documents is the existence of the now-famous Wayne Tracker email account, an alias used by former chief executive Rex Tillerson.
Now, after admitting that more than a year’s worth of Tillerson’s secret emails may have been deleted, Exxon is trying to explain why the former CEO’s account was connected to another employee and its attorneys are trying to explain why more wasn’t done to preserve those emails.
During an investigative examination—a process similar to a deposition—Exxon attorney Michele Hirshman admitted she knew about Tillerson’s second account in early 2016, but said she wondered if Schneiderman’s investigators would notice them because of the sheer volume of documents.
Hirshman, along with lead attorney Theodore V. Wells, is one of several attorneys from Paul, Weiss, Rifkind, Wharton & Garrison who are representing Exxon.
During the examination, which was granted by Judge Barry Ostrager in response to New York’s allegation of irregularities during the production process, Hirshman said her office forwarded documents from the Wayne Tracker account to the attorney general’s office, but admitted she didn’t specifically notify them of the existence of the account.
“Because I knew about them and I read them and I said, well, this will be an interesting test of whether the Attorney General’s office is reading the documents,” Hirshman said during the May examination.
Hirshman said beyond turning over the documents, she did not believe Exxon had an obligation to inform the attorney general’s office of the existence of Tillerson’s second email account.
After further questioning, Hirshman reconsidered, saying she “didn’t think it was a test,” but it was evidence that “the production was appropriately focused on the right custodians, that those e-mails were being produced because Rex Tillerson was a custodian.”
In this context, a custodian is the individual whose email account may hold documents requested by Schneiderman.
But according to John Oleske, senior enforcement counsel in Schneiderman’s office, documents from Tillerson’s account were not produced until the end of 2016. Documents from the Tracker account—which his office first received on Feb. 20, 2016—“were produced from the custody of non-Management Committee Custodians who incidentally had communicated with Mr. Tillerson and the Tracker account.”.
Non-management committee custodians are Exxon employees who are not senior members of management, meaning the documents could not have been produced from Tillerson’s Tracker account. Because he was CEO, Tillerson is considered part of the Managerial Committee.
After Oleske pointed that out, Hirshman again backtracked. “I think that—you are correct to point out that the document that I may be thinking about may have come from a different custodian’s files,” she said.
Hirshman also testified that emails in the Wayne Trader account dated between Sept. 5, 2014 and Nov. 27, 2014 were automatically “swept” or deleted and acknowledged the likelihood that up to nine additional months of emails were destroyed.
At a June 16th hearing, Oleske was incredulous. “There are years-worth of destroyed documents that the company still hasn’t accounted for,” he said.
Tillerson’s “Tracker” Emails Swept Away
Schneiderman’s office is trying to figure out exactly what happened to those emails. Thus far, Connie Feinstein, Security and Consulting Manager in Information Technology (IT) Risk Management for Exxon, has provided the most insight.
Feinstein blames the loss of Tillerson’s Wayne Tracker emails on a “file sweep” feature in Exxon’s email system and the company’s failure to put a litigation hold on the account.
In an affidavit, Feinstein said messages in Exxon’s email system are automatically moved from a user’s mailbox to a recycling bin after 395 days, then eventually removed from the user’s mailbox.
Feinstein said the file sweep program is disabled for individuals whose email must be preserved due to litigation. Individual email accounts connected to Tillerson and other high-level members of Exxon’s senior management were placed on litigation hold on Nov. 6, 2015, two days after the corporation received the initial subpoena.
But that automated process only disabled the file sweep function for Tillerson’s official email account, not the Wayne Tracker account, which was configured as a non-personal account and tied to Exxon IT employee Ramona Helble’s network account.
Feinstein said it was not flagged with a litigation hold in November 2015, when the subpoena from the attorney general’s office was received. The automatic sweeper continued to operate and at least three months of Tillerson’s Wayne Tracker emails were lost.
It is unknown if Tillerson’s Tracker account was placed on a litigation hold during court proceedings related to the Mayflower pipeline spill or other prior legal actions.
Exxon did not respond to a request for comment and a representative from the attorney general’s office declined to comment.
In a March letter, Wells said the Wayne Tracker account was used by Tillerson to communicate with a “limited amount of senior executives.” However, Feinstein said Tillerson’s administrative assistants were aware of the CEO’s second email address and sometimes moved documents between his two addresses.
Wells also surmised that “If the Wayne Tracker account was used to communicate with other ExxonMobil executives about climate change, those emails would reside in the accounts of the other executives.”
But emails from those executives would only be preserved if those accounts were tied to the other executives. If, as with Tillerson’s Wayne Tracker account, those executives used non-personal email accounts not connected to their identity or network accounts, they are unlikely to have been placed on litigation hold and the file sweep program is likely still enabled, meaning months, if not years of emails could potentially have been lost.
In June, the attorney general’s office received permission from Judge Ostrager to take depositions from several additional Exxon employees—including Helble, who will likely be asked to identify who approved Tillerson’s “Tracker” email address and to explain why Exxon’s former and current CEOs’ pseudo email accounts are tied to her account.