While Exxon called the New York attorney general's claim that Rex Tillerson used an alias email to hide crucial climate discussions "preposterous," the Massachusetts attorney general's office wants to make sure those emails are preserved so investigators can determine whether they contain evidence that Exxon's leadership misled the public and investors.
Maura Healey's office sent Exxon a letter directing the company to save the emails, which it says would fall under its civil investigative demand—similar to a subpoena—it issued last year seeking Exxon records.
"Exxon's reported failure to identify the aliases in the New York case raises serious concerns about whether Exxon is taking proper steps to fulfill its preservation obligations in connection with the CID in Massachusetts," according to the letter.
ExxonMobil told a New York judge last week that withholding those emails was not an attempt to evade the New York attorney general's subpoena by hiding sensitive climate change discussions.
The use of the account under the name "Wayne Tracker" was completely proper, Exxon's lead attorney wrote to Justice Barry Ostrager. It was employed so that important emails were not buried in the daily clutter of correspondence sent to Tillerson's regular Exxon account, the letter said.
"While some of those emails pertain to climate change, the Wayne Tracker account was not established for the purpose of discussing that or any other particular topic," according to Exxon's response. "It was a general purpose means of sending priority communications to the CEO of the company."
Tillerson, now secretary of state, referred questions about the emails to Exxon when asked about them.
New York Attorney General Eric Schneiderman disclosed the existence of Tillerson's alternate email last week in a letter to Ostrager, claiming the company withheld the emails in violation of his demand for documents related to climate risks. Schneiderman has an open investigation of Exxon in connection with possible securities fraud over whether the company misled shareholders and the public about climate change.
"Mr. Tillerson used this secondary email address to send and receive materials regarding important matters, including those concerning to the risk-management issues related to climate change that are the focus of OAG's (office of the attorney general) investigation," according to Schneiderman's letter to the judge.
The company said there was no attempt to evade the New York subpoena to turn over the emails, rather they were not detected because the process used to search for emails "did not automatically extend to the secondary email account." Moreover, the information in the emails would not prove to be significant, according to Exxon's letter.
After defending Tillerson's use of an alias email, Exxon attorney Ted Wells accused Schneiderman of public grandstanding.
"While there is nothing improper about using more than one account to organize and prioritize emails, it is entirely improper for the Attorney General to raise this issue for the first time in a letter filed publicly with the Court," Wells said. "Not only did that letter violate this Court's requirement that parties attempt to resolve disputes before bringing them to the Court, it has unfairly prejudiced ExxonMobil in the eyes of the public based on sensational coverage in the press."
Lawyers in an ongoing civil lawsuit are exploring ways to determine the extent of Tillerson's shadow emails. Attorneys representing the plaintiffs in a federal class action lawsuit in Oregon asked both the U.S. government and the American Petroleum Institute if they are in possession of any of Tillerson's emails sent or received from his Wayne Tracker account.
The lawyers represent Our Children's Trust and 21 youthful plaintiff in a case that alleges the government has failed to protect them from climate change.