Esther Kiobel. (Photo: Diego M. Radzinschi/ALM)
Amnesty International has zeroed in on Cravath, Swaine & Moore, claiming in a Sept. 8 release that the New York firm is refusing to hand over “critical” evidence in long-running litigation against the oil giant Royal Dutch Shell.
Esther Kiobel, the widow of a Nigerian dissident who was executed by his country’s government in the 1990s, wants to hold Shell and its Nigerian subsidiary responsible for alleged human rights abuses in Nigeria’s Ogoni region. The U.S. Supreme Court dismissed a class action brought by Kiobel and others against Shell four years ago, finding that the case dealt with overseas conduct that was beyond the reach of the U.S. alien tort statute.
Kiobel is now looking to the Dutch courts. And for that, she wants documents—in the possession of Shell’s former lawyers at Cravath—related to her unsuccessful case in the United States.
In January, U.S. District Judge Alvin Hellerstein of the Southern District of New York in Manhattan ordered Cravath to give Kiobel the requested documents, which previously had been placed under protective order. Kiobel had agreed to keep the documents confidential, and she met the requirements allowing for foreign discovery under U.S.C. Section 1782, the judge found.
Cravath challenged Hellerstein’s ruling, and the U.S. Court of Appeals for the Second Circuit is scheduled to hear the appeal on Sept. 12. Hogan Lovells partner and former Acting U.S. Solicitor General Neal Katyal represents Cravath. Katyal referred questions to Anna Haslam, a spokesperson for Shell Petroleum Development Company of Nigeria Ltd.
“Suing a U.S. law firm should not be a back door to secure documents from foreign clients, who are outside of U.S. jurisdictional boundaries,” Haslam said in a statement.
In its brief, Cravath argues that the Dutch government has objected to the use of Shell’s documents and that the Netherlands has more restrictive discovery rules. The company could not maintain a “reasonable expectation of confidentially” if Hellerstein’s ruling is upheld, the firm asserts.
Backing Cravath in friend of the court briefs are the New York City Bar Association, the National Association of Manufacturers, the Association of Corporate Counsel, and the U.S. Chamber of Commerce.
In its amicus brief, the New York City Bar Association, represented by Sullivan & Cromwell partner Joseph Neuhaus, argues that Hellerstein’s decision “unnecessarily burdens the rendition of legal services to foreign clients, to the detriment not only of the New York legal community but of society at large. The decision also chills voluntary cooperation in U.S. discovery procedures.”
The Chamber of Commerce, Association of Corporate Counsel and National Association of Manufacturers, represented by Vinson & Elkins partner John Elwood, also argue that the ruling harms the U.S. discovery regime. “The clear message of the district court’s decision is not only that protective orders are not protective, but also that a litigant who places faith in a protective order may suffer for its misplaced reliance decades later. By allowing such ready—and calamitous—circumvention, the district court’s decision will undermine confidence in the protective orders that are the lifeblood of discovery.”
Not surprisingly, Kiobel’s lawyer, Marco Simons of the nonprofit EarthRights International, disagrees.
“None of this material is privileged. The only materials at issue were previously produced in discovery,” Simons said. Joe Westby of Amnesty International, which is not a party to the case, said the nonprofit focused on Cravath because that is where the discovery fight has landed.
“I think Cravath’s role is important to the extent, as the judge made clear in his January order, Cravath has these documents which Esther Kiobel needs to fight her case and get justice for the serious human rights abuses she has suffered,” he said. “The fundamental point here is: Multinational corporations are able to use complex legal systems across borders to avoid responsibility when they have culpability in human rights abuses.”