AG Healey loses appeal, must appear in Texas to answer ExxonMobil questions — or does she? (UPDATED)

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UPDATE — 5:42 p.m. — Attorney General Maura Healey has filed a motion to stay the court’s discovery/deposition order until the U.S. Court of Appeals for the Fifth Circuit in Louisiana rules on an additional appeal she filed this afternoon. 

DALLAS — Attorney General Maura Healey must travel to Texas to answer questions from attorneys representing ExxonMobil, a federal judge ruled Monday, although a motion filed by Healey’s attorneys late Tuesday afternoon could temporarily stave off discovery and deposition hearings scheduled for later this month.  

Healey’s legal team had appealed Texas U.S. District Court Judge Ed Kinkeade’s original order, which he issued last month. On Nov. 21 Healey told reporters she was certain Kinkeade “had no jurisdiction over us” and described his original decision as “inappropriate.”

The Texas judge apparently didn’t buy Healey’s argument, and his Monday order — issued “after careful consideration” — means the Bay State’s top prosecutor has no choice but to appear in federal court in Dallas at 9 a.m. next Tuesday. Once there, attorneys representing Exxon will pepper Healey with questions in an effort to prove she acted with bias and conspired with environmental activists and other state attorneys generals in launching a climate change-related investigation on the oil giant.

On Tuesday afternoon, however, Healey filed a motion with the U.S. Court of Appeals for the Fifth Circuit in Louisiana in an effort at least temporarily halt Kinkeade’s discovery and deposition order, arguing that Kinkeade’s order “constitutes an abuse of discretion, especially where the court lacks any basis for jurisdiction over the attorney general at all.”

Attorneys representing Healey also argued that she “will suffer irreparable harm if she is forced put aside her job as chief law officer of Massachusetts to prepare for and travel to Texas to take part in an extraordinary fishing expedition into the origins of her investigation (all protected by various privileges) or face potential sanctions from this court for failing to appear at all.”  

Healey’s attorneys added that “a stay will not harm Exxon at all” as “the investigation is on hold while Massachusetts courts decide the enforceability of the civil investigative demand to Exxon, and a stay will serve the public interest by, among other things, promoting judicial economy, preserving the parties’ resources, and maintaining the status quo.”

Healey is appear in Suffolk Superior Court on Wednesday at 2 p.m. to argue in favor of a civil investigation demand needed to further determine how much the energy giant knew about the alleged effects of fossil fuels on climate change. 

Healey, along with New York Attorney General Eric Schneiderman, have alleged that Exxon’s scientists have known about the energy giant’s role in climate change and have withheld relevant information. Healey and Schneiderman are looking to force Exxon to release internal company records that date back to at least 1976.

Exxon responded by filing an injunction in federal court in Dallas.

Kinkeade’s order means Healey must now be deposed and release additional documents related to her investigation, should her appeal to the Fifth Circuit fail. Last Friday attorneys representing Healey had argued that the court “plainly lacks jurisdiction” over her and described Exxon’s discovery efforts as “extensive, improper and burdensome.”

“This Court should reject Exxon’s ploy to shift the focus from the investigations of Exxon’s conduct by two state attorneys general to the investigators themselves to avoid a ruling on the obvious jurisdictional failures of its lawsuit,” Healey’s attorneys argued. “The Court should vacate its Orders, stay discovery, and address Attorney General Healey’s motion to dismiss for lack of personal jurisdiction.”

Kinkeade ruled otherwise, however.

Exxon’s chief claim is that Healey blatantly exposed her own biases during a press conference she held last spring in New York City. In his October order directing Healey to comply with Exxon’s discovery requests, Kinkeade referenced the March press conference, noting that the “morning before the AGs United for Clean Power press conference, Attorney General Healey and other attorneys general allegedly attended a closed-door meeting.”

It was at that press conference that Healey announced her plans to investigate Exxon and asserted her claim that the company has actively withheld internal information related to climate change science.  

Kinkeade wrote that the meeting allegedly involved Healey and others listening to presentations “from a global warming activist and an environmental attorney that has a well-known global warming litigation practice.”

Kinkeade’s most recent order means that Healey will have to answer questions, while under oath, pertaining to the presentations.

Exxon has argued that Healey’s investigation is politically driven and unconstitutional.

Chloe Gotsis, a spokeswoman for Healey, said Tuesday that the attorney general would not be commenting further.

Read Healey’s Fifth Circuit Court of Appeals filing:

Motion to Stay (Dec. 6, 2016) by Evan on Scribd