By Alfred Donovan
Three attorneys from a leading New York law firm, Cravath, Swaine & Moore, LLP, representing Shell in a human rights case brought by Ogoni plaintiffs resident in the USA, have been fined $5,000 each by a U.S. Judge, Henry Pitman. The sanctions were imposed for making unseemly and unfair accusations against opposing counsel which degrade the legal profession and disserve justice.
The attorneys in question, Rory O. Milson, Thomas G. Rafferty and Michael T. Reynolds, were personally sanctioned for $5,000 each by Judge Pitman and directed to reimburse plaintiffs counsel for one-third of the attorneys fees relating to the improper allegations. The conduct was deemed particularly inappropriate because it impugned the integrity of opposing counsel by suggesting plaintiffs’ counsel tacitly participated in conduct which violated the Federal Rules of Civil Procedure and constituted perjury.
Judge Pitman decided that three statements filed with the Court by the Defendants (Royal Dutch Shell) had no direct evidentiary support. The relevant issues are complex involving allegations that witnesses were paid for their testimony and that evidence was presented to the court the plaintiff’s attorneys knew to be false. The findings by Judge Pitman enforcing ethical standards were made in the his Opinion and Order dated 29 Sept 2006.
(Acrobat Reader is needed to access the US Court Order. Please be patient when downloading. To download the FREE Acrobat Reader click on the following link:
There have been a number of decisions in the Ogoni case in the last several months which have gone against Shell.
In March 2006, Judge Pitman dismissed a motion filed by Royal Dutch Shell for a court appointed official (a Master) to investigate alleged perjury by witnesses who have given testimony prior to the pending trial. The Order by Judge Pitman, dated 31 March 2006, is printed in its entirety at the foot of this article. Judge Pitman considered that the allegations were “not baseless” but made no finding on relevant matters and decided that the appointment of a master, as sought by Shell, was “simply not the appropriate device to remedy perjury”. He denied Shell’s motion in all respects and stated that: “Witness credibility is traditionally a question for the jury, not the court.”
(http://royaldutchshellplc.com/2006/06/20/shellnewsnet-royal-dutch-shell-unsuccessful-attempt-to-thwart-ogoni-us-class-action/) On Monday 9 October 2006, we reported that another United States District Judge, Kimba M. Wood, allowed the Ogoni action (alleging crimes against humanity, torture and arbitrary arrest and detention) to proceed. Full information about that decision can be found in the relevant Court Order: U.S. Ogoni/Shell Court Order 29 Sept 2006 We know from our own extensive experience of litigation with Shell over many years and from what we have observed in other cases, that Shell lawyers are prepared to use every conceivable manoeuvre to exhaust the resolve and resources of a financially weaker opponent. One Shell lawyer even had the arrogance to threaten us in writing to make litigation “drawn out and difficult”.We know from our own extensive experience of litigation with Shell over many years and from what we have observed in other cases, that Shell lawyers are prepared to use every conceivable manoeuvre to exhaust the resolve and resources of a financially weaker opponent. One Shell lawyer even had the arrogance to threaten us in writing to make litigation “drawn out and difficult”.Shell lawyer gambits include: –We know from our own extensive experience of litigation with Shell over many years and from what we have observed in other cases, that Shell lawyers are prepared to use every conceivable manoeuvre to exhaust the resolve and resources of a financially weaker opponent. One Shell lawyer even had the arrogance to threaten us in writing to make litigation “drawn out and difficult”.Shell lawyer gambits include: –We know from our own extensive experience of litigation with Shell over many years and from what we have observed in other cases, that Shell lawyers are prepared to use every conceivable manoeuvre to exhaust the resolve and resources of a financially weaker opponent. One Shell lawyer even had the arrogance to threaten us in writing to make litigation “drawn out and difficult”.Shell lawyer gambits include: –
We know from our own extensive experience of litigation with Shell over many years and from what we have observed in other cases, that Shell lawyers are prepared to use every conceivable manoeuvre to exhaust the resolve and resources of a financially weaker opponent. One Shell lawyer even had the arrogance to threaten us in writing to make litigation “drawn out and difficult”.Shell lawyer gambits include: –
Routinely belittling claims irrespective of actual legal merit
Dragging out proceedings when it suits Shell
Making allegations that claims brought against Shell are false
Alleging that an opponents documents are forged
Hiding crucial evidence in a mountain of irrelevant discovery documents
Using threats, intimidation and uncover activity
Issuing multiple proceedings against an opponent
Shell employee witnesses unavailable to appear in witness box due to illness
Making legal moves which unnecessarily generate increased costs
Making unfounded allegations to legal authorities
Springing ambushes in court (making serous allegations without prior notice)
Have litigation opponents thrown in jail
Maintaining indefinitely interim injunctions meant to be temporary
BACKGROUND OF OGONI ACTION
The Ogoni case is before the UNITED STATES DISTRICT COURT OF SOUTHERN DISTRICT OF NEW YORK (Case No. 02-CV-7618). The trial has been pending for over four years. Discovery has been extensive and is ongoing.
The case in its original form related to Shell’s oil operations in Ogoniland, an area located in the Niger River delta area of Nigeria. The plaintiffs, who are Ogoni nationals resettled in the USA, charged Royal Dutch Shell with violations of the laws of nations and customary international law. They sougt legal recognition of a class consisting of “all Ogoni or Ogoni family members who resided in Ogoniland during the period of October 1, 1990 to May 28, 1999” who were injured during the course of the alleged misconduct by Shell. The class could potentially consist of hundreds of thousands of people. The disgraced former Group Chairman of Shell, Sir Philip Watts, and his predecessor, Sir Mark Moody-Stuart, have already given answers under oath in London in reply to questions put by US attorneys acting for the plaintiffs.
The original lawsuit alleged that: –
* In response to peaceful Ogoni protests against the severe environmental damage caused by Shell’s oil development, Shell “instigated, planned, facilitated and cooperated” with the Nigerian military in attacks against the unarmed residents of Ogoniland.
* The defendants (Shell) and the military acted under a joint strategy to depopulate areas for oil exploration and extraction and discourage protests. In particular, the plaintiffs allege extrajudicial killing, torture, rape, arbitrary arrest and detention, cruel, inhuman and degrading treatment, crimes against humanity, forced exile, restrictions on assembly and the destruction of private property. The plaintiffs assert that these claims are all violations under customary international law.
* A pattern of mutual support in which Shell officials met with Nigerian officials to develop strategies and in some instances joint media campaigns.
* Specific instances in which Shell asked for the “usual assistance” to suppress protest and allow work on the pipeline. The plaintiffs allege that the “usual assistance” included razing villages and the other violent methods used by the military.
* The complaint further alleges that Shell provided logistical services and financial support to the military operations, including cash, housing, vehicles and armaments.
The plaintiffs include relatives of Dr. Barinem Kiobel, executed in 1995 along with Ken Saro-Wiwa and seven others, after summary proceedings before the Ogoni Civil Disturbances Special Tribunal. The plaintiffs allege that Shell was actively involved in the tribunal, bribing and preparing witnesses.
Shell has admitted, after the leaking of a Shell internal report, that the corporate behaviour of Royal Dutch/Shell in Nigeria fed a vicious cycle of violence and corruption.
THE COURT ORDER: 31 MARCH 2006
ESTHER KIOBEL, et al., }
}02 Civ. 7618 (KMW) (HBP)
ROYAL DUTCH PETROLEUM COMPANY,} MEMORANDUM OPINION
et al ., } AND ORDER
Pitman, United States Magistrate Judge:
By notice of motion dated December 7, 2004 (Item 175 in Docket No. 96 Civ. 8386), defendants move for the appointment of a master to investigate alleged instances of perjury by several witnesses who were deposed in Benin (the “Benin Witnesses”) and alleged subornation of perjury with respect to the Benin Witnesses. For the reasons set forth below the motion is denied in all respects.
Defendants’ papers identify a number of instances of alleged perjury by the Benin Witnesses, ranging from authenticity of documents that allegedly originated in the Nigerian Ministry of Defense to the size and characteristics of certain cesspools, or “soak-aways”, in Nigeria to the depth of the water on certain stretch of the Bonny River to how much Nigerian currency will fit into a “Ghana Must Go” bag.1 Defendants’ papers cite a number of other alleged instances of perjury but the foregoing is a fair sampling. It appears from the materials submitted in connection with the present motion, that defendants’ belief that certain Benin Witnesses have committed perjury is not baseless. Defendants seek a master to offer definitive testimony concerning the truth of these matters and establish the perjury alleged.
The appointment of a master is not appropriate here. Rule 53 (a) (1) of the Federal Rules of Civil Procedure defines the situations in which a master may be appointed:
1 The papers before me do not define what a “Ghana Must Go” bag is.
(1) Unless a statute otherwise provides, a court may appoint a
master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend findings of fact on issues to be decided by the court without a jury if appointment is warranted by
(i) some exceptional condition, or
(ii) the need to perform an
accounting or resolve a difficult
computation of damages; or
(C) address pretrial and post-trial that cannot
be addressed effectively and timely by an
available district judge or magistrate judge
of the district.
Defendants do not identify the particular subparagraph that warrants the appointment of a master here, and none is applicable. Since plaintiffs oppose defendants’ motion, subparagraph (A) is obviously inapplicable. Witness credibility is traditionally a question for the jury, not the court. E.g., McClellan v. Smith, 439 F. 3d 137, 144 (2006); Globecon Group, LLC v. Hartford Ins. Co, 434 F. 3d 165, 174-75 (2d Cir. 2006). Thus, subparagraph (B) is also inapplicable. Finally, there is no pretrial matter that requires or even permits a judicial officer to make credibility findings concerning the merits of the case. Thus, subparagraph (C) is also inapplicable.
In addition, the appointment of a master appears unnecessary and fraught with practical problems. For example, defendants claim that the testimony of one of Benin Witnesses that certain documents are authentic must be perjurious because the witnesses testified that they originated at a building that had been rendered uninhabitable by a fire prior to the dates on the documents. Defendants’ showing in their motion papers concerning this matter appears to have substantial persuasive force. Defendants do not explain why they can not make the same showing to the jury themselves. Similarly, to the extent that the parties dispute the characteristics of any locations in Nigeria or the volume of “Ghana Must Go” bags, defendants can simply have a witness inspect these locations or objects and document his or her findings with photographic or videographic evidence. Finally, the investigation of most, if not all, of the issues identified by defendants would require a master to travel to Nigeria and conduct inspections or interviews there. Given the rates of Attorneys in this District and the lost revenue that such an attorney would suffer during a sojourn in Nigeria, the cost of such an undertaking would be substantial, assuming that an individual could be found who would be willing to undertake the project. Defendants have affiliated corporations in Nigeria, and it makes far more sense for employees of those corporations to investigate any locations or other items that defendants deem relevant.
Perjury is, no doubt, a serious matter, and the subornation of perjury can not be tolerated by any court. Nevertheless, if perjury occurred in this matter (and I make no finding that it has or has not occurred), the appointment of a master is simply not the appropriate device to remedy perjury. Defendants’ motion is denied in all respects.
Dated: New York, New York
March 31, 2006
United States Magistrate Judge
Copies mailed to:
Jennifer M. Green, Esq.
Beth Stephens, Esq
Maria C. LaHood, Esq.
Center for Constitutional Rights
New York, New York 10012
Judith Chomsky, Esq
Law Offices of Judith Brown Chomsky
Post Office Box 29726
8120 New Second Street
Elkins Park, Pennsylvania 19027
Anthony DiCaprio, Esq.
Michael Ratner, Esq.
Ratner, DiCaprio & Chomsky, LLP
80 Eighth Avenue
New York, New York 10011
Carey R. D’ Avino, Esq.
Stephen A. Whinston, Esq.
Keino Robinson, Esq.
Berger & Montague, P.C.
1622 Locust Street
Philadelphia, Pennsylvania 19103-6365
Rick Hertz, Esq.
1612 K. Street, N.W.
Washington, District of Columbia 20006
Rory O. Millson, Esq.
Thomas G. Rafferty, Esq.
Michael T. Reynolds, Esq.
Adrienne K. Wheatley, Esq
Christopher Vergonis, Esq.
Cravath, Swaine & Moore, LLP
825 Eighth Avenue
New York, New York 10019-7475