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Exxon Tries to Cram Genie Back into Bottle

NEW ORLEANS (CN) - ExxonMobil demands that a law firm return a document which Exxon claims attorneys are trying to use as evidence that the oil company deliberately withheld air sample data in trials seeking millions of dollars.

ExxonMobil sued attorneys Timothy Falcon and Jeremiah Sprague of the Falcon Law Firm, and attorney Frank M. Buck Jr. and his law firm, in Federal Court.

Exxon claims the Falcon firm got the document by mistake, then shared it with other attorneys for clients who allege injuries from naturally occurring radioactive material.

One attorney with whom the Falcon firm shared the document is co-defendant Buck, according to the complaint.

"(T)he defendants, in violation of their legal and ethical duties, have refused to return to ExxonMobil a sensitive attorney-client privileged document which ExxonMobil previously inadvertently produced to them," the complaint states. "Further, the defendants have disseminated the privileged document to others and sought to introduce it against ExxonMobil in various court proceedings in support of punitive damage claims against ExxonMobil exceeding $65 million. ... The defendants have announced their intention to continue to disseminate and seek to introduce the document in a state court trial set for March 5, 2012, in support of punitive damage claims against ExxonMobil well in excess of $1 million." (Citation omitted.)

The oil company claims: "ExxonMobil, along with other corporations, is a defendant in numerous suits brought by thousands of plaintiffs asserting claims for damages resulting from alleged exposure to naturally occurring radioactive material (NORM). The defendants in this action, Falcon, Sprague, the Falcon Firm, Buck, and the Buck Firm ... represent groups of plaintiffs in at least thirty (30) of the cases.

"In the NORM cases, ExxonMobil has produced hundreds of thousands of pages of documents in response to written discovery requests issued by the defendants on behalf of their clients in the NORM cases.

"On August 28, 2008, in response to voluminous discovery requests, counsel for ExxonMobil inadvertently produced an attorney-client privileged memorandum from an Exxon in-house legal counsel, Rosemary Stein, to an ExxonMobil employee, John Guidry, dated July 22, 1988. ... Contemporaneously herewith, ExxonMobil has filed a motion to file the privileged document with the court under seal so as to protect the confidentiality of the privileged document and prevent its further dissemination.

"Without revealing the specific contents, the privileged legal document contains Ms. Stein's confidential legal advice to Mr. Guidry regarding the use and disposition of tables reflecting results of air sample tests performed by an ExxonMobil industrial hygienist in 1987 on an experimental pipe cleaning unit developed by Intracoastal Pipe Repair and Supply Company (ITCO). At the time, ExxonMobil was considering a contract with ITCO to clean ExxonMobil pipe using the prototype unit."

Exxon says the tests were performed on the pipe cleaning unit so ExxonMobil could decide if it wanted to work with ITCO.

"The test results were internal corporate property of ExxonMobil prepared for the purposes of contract evaluation, which it could elect to disclose or not to disclose," the complaint states.

Exxon claims that it realized its mistake in December 2009 and asked defendants Falcon and Sprague to return the original CDs that contained the document. It claims that Falcon returned ExxonMobil's original CD but kept a copy.

Exxon claims Falcon "exploited the mistake of ExxonMobil's counsel and misled ExxonMobil into believing that he had returned all copies of the privileged document and that the issue had been resolved."

In February 2010, Exxon says, Falcon gave the memorandum to attorney John Clegg, with the "specific intent that Clegg would seek to introduce the privileged document against ExxonMobil at trial and publish it to the jury."

Clegg did so, but the state judge in the case, the Hon. John Peytavin, ruled the document was privileged and inadmissible, according to the complaint.

In a footnote, Exxon adds: "On July 6, 2010, Clegg was suspended from the practice of law and currently is not licensed to practice. Hence, it does not appear that there is an imminent likelihood that he will continue to attempt to disseminate or introduce the privileged document. Hence, ExxonMobil has not named Clegg as a defendant herein."

Exxon claims that Falcon and Sprague, "Undeterred by Judge Peytavin's ruling that the privileged document was privileged ... provided a copy of the privileged document to Buck, a sole practitioner who represents some of the plaintiffs in the case entitled Lester, et al. v. Exxon Mobil Corporation, et al.," pending in Orleans Parish Court.

The complaint adds: "Buck attempted to introduce the privileged document during the trial of the Lester Orleans Case on September 20, 2011. His questioning regarding the document was designed to suggest that ExxonMobil had deliberately withheld test results from ITCO, in support of the plaintiffs' claims for punitive damages exceeding $50 million."

Exxon claims that the judge in the Lester Case, the Hon. Ethel Simms Julien, initially admitted the document over Exxon's objection, but then granted Exxon's motion to strike it from record.

The complaint adds: "Undeterred by these court rulings, on January 27, 2012, Sprague sent an email to counsel for ExxonMobil advising that he intends to introduce the privileged document at the upcoming trial of yet another case, Oleszkowicz v. Exxon Mobil Corporation et al.," in Jefferson Parish Court. That trial is set for March 5, and plaintiffs seek punitive damages "well in excess of $1 million," Exxon says.

Exxon says it has demanded that Sprague return document, but he has refused.

"Absent injunctive relief from this Court, the defendants will continue to disseminate and attempt to introduce the privileged document at the upcoming Oleskowicz trial and in future cases and trials," the complaint states.

"The defendants' continued pattern of misuse of the privileged document exposes ExxonMobil to continuing irreparable harm. The privileged document consists of confidential legal advice of ExxonMobil's in house legal counsel, Ms. Stein, given to an ExxonMobil employee regarding the use and disposition of ExxonMobil's internal, proprietary documents prepared at the direction of legal counsel. The defendants have sought to misconstrue the privileged document as reflecting supposed fraudulent or criminal activity by Exxon, in support of their claims for millions of dollars of punitive damages. They have repeatedly sought to introduce the document in evidence without complying with procedural requirements required to establish an exception to the attorney-client privilege.

"The defendants have sought to circumvent those procedures because they cannot establish any exception to the privilege. ...

"Unless and until defendants are enjoined from this continuing pattern of improper dissemination and use of the privileged document, and ordered to return all copies to ExxonMobil, their misuse of the document will continue, exposing ExxonMobil to ongoing irreparable harm."

Exxon seeks declaratory judgment, a restraining order and injunction and costs - and the document.

It is represented by James Brown with Liskow & Lewis.

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