District Judge Alvin K. Hellerstein
Law firm Cravath, Swaine & Moore LLP (Cravath) represented Royal Dutch Shell (Shell) in litigation over Shell’s complicity in the Nigerian government’s campaign against the Ogoni people. Kiobel’s 2002 class action under the Alien Tort Statute claimed Shell and its Nigerian subsidiary were liable for human rights violations by Nigeria’s military against her, her husband, and Nigerian’s opposing Shell’s activities. The court granted Kiobel’s 28 USC §1782 to subpoena documents from Cravath, for use in an anticipated civil action against Shell in the Netherlands. Kiobels’ §1782 petition met the statutory requirements set out by In re Application of Esses, 101 F. 3d 873. The discretionary factors outlined by Mees v. Butler, 793 F.3d 291 weighed in favor of granting Kiobel’s petition. No authority supported Cravath’s claim that Shell was the “real” person from whom discovery was sought. Kiobel also provided objective indicia that the Dutch action was reasonably contemplated. Since Kiobel’s action arises from conduct occurring in the 1990s, she believes Cravath may be the only source for some of the documents sought. Nor did Cravath present evidence that the Netherlands prohibits or otherwise restricts parties from gathering evidence via §1782.