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Shell Nigerian Litigation: Win in UK. Loss in USA

As has been widely reported, Shell has managed to block the litigation brought in the London High Court by Nigerian litigants claiming for severe environmental damage caused by Shell in Nigeria. An appeal against the decision is likely. I have evidence that may assist.

Two days earlier, on 24 January, Shell lawyers lost a related case in America. A US Federal Judge Alvin K. Hellerstein ordered Shell law firm Cravath, Swaine & Moore LLP, to make available to the Nigerian litigant Ether Kiobel by 27 February, for use in the Dutch courts in a human rights action, more than 100,000 Shell discovery documents stored in the USA. I am involved in that case.

I have provided links to the newly issued US Court Orders.

Document 21: Court Order dated 24 Jan 2017

Document 20: Protective Order Dated 24 Jan 2017

Document 19: Joint letter to Judge Hellerstein dated 18 Jan 2017 (From Shell lawyers Cravath, and Marco Simons of Earthrights International representing Esther Kiobel)

The Court Order was made despite an alternative Order put forward by Cravath (see the last page of Document 19) giving themselves the opportunity to procrastinate, with no specific handover date.

The Judge dismissed all of the arguments advanced by Cravath to block the case.

There are obvious connections between the environmental based litigation in London and the human rights litigation being brought by Ms Kiobel. Both involve Nigerian litigants suing Shell outside Nigeria.

A Protective Order dated 24 January signed by the same US Judge, prevents the Shell discovery held in the USA from being used in pending or current environmental litigation against Shell in any jurisdiction without a further application to the US court, or agreement between the parties. In other words, Shell will be allowed to fight against any further use of the same discovery in other litigation.

The discovery may and probably does contain a treasure trove of information potentially damaging to Shell in any litigation relating to its Nigerian activities.

Cravath has reserved the right to appeal against the 24 Jan Court Order even though the Court Order says that the case is closed.

The Shell discovery is material originally gathered internally by Shell for the Kiobel v. Shell litigation in the USA that was eventually thwarted by the US Supreme Court on territorial jurisdiction issues.

Shell thought that was an end to the matter but neglected to ensure the destruction of the Shell internal discovery. It was providently kept in secure storage ever since. What’s the betting that someone is suffering dire consequences as a result of that situation?

The Court Order contains a very graphic description by Judge Alvin K. Hellerstein of what allegedly happened to Esther Kiobel and her late Husband. See first 2 pages of his Order of 24 Jan.

See first 2 pages of his Order of 24 Jan.

Extract

Kiobel alleged that Shell was directly complicit in the execution of her husband and other opposition leaders following a rigged and corrupt criminal trial, and further alleged that she was personally whipped, sexually assaulted, and detained for three weeks when she attempted to bring her husband food during his detention prior to execution. 

Article Author: John Donovan

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