The company has destroyed Tracker emails from before Aug. 18, 2015 because it had “failed to disable its automatic ‘file sweep’ deletion program” for the Tracker account even though the emails were subject to subpoena, the state said in its memorandum about the emails.
According to a legal filing from the state: “ExxonMobil chose not to produce documents from the Tracker Account, on the theory that incidental references to ‘Wayne Tracker’ in documents that were produced would provide ‘an interesting test of whether the Attorney General’s office is reading the documents.’”
Michele Hirshman, the former lawyer for Exxon who made that statement in a pretrial investigative examination (a process much like a deposition), somewhat confusingly then tried to say that it was not actually intended to be a test of the attorney general’s office, but a test that the production of documents was “appropriately focused” on the right targets.
Stephen Gillers, a professor at the New York University School of Law, said in an interview that “It’s hard to understand how Tillerson’s emails could not be highly relevant here. He spent a decade as C.E.O. and chairman. To the extent that some emails are not available from his account or the accounts of others, the court loses information and information is the cornerstone of accurate verdicts.”
He added that the argument of the Tracker emails being some kind of “test” is “hard to fathom. Exxon’s lawyers have no business creating tests of what their opponents are doing. Their job is to preserve the documents.”
Exxon has said that the alternate email account was “entirely proper.” In a 2017 letter to Judge Barry Ostrager, who is presiding over the case, Mr. Wells said the company had done nothing wrong; the purpose of the side account, he wrote, “was efficiency, not secrecy,” and that the older emails were deleted “due to the manner in which email accounts had been configured years earlier.”
He argued that a “number of factors suggest that any possible impact will not be significant,” including the fact that many of the emails would appear in the documents turned over from the recipients of his emails. The fact that the attorney general released the information about the Tracker account publicly, he wrote, is about “obtaining publicity,” not information.”