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US appeal against order to hand over Shell docs for Dutch case

 The most audacious argument being made by Cravath against the Court Order is that since Esther Kiobel has already waited more than twenty years in pursuing Shell, what’s the problem in her waiting even longer!

By John Donovan

Yesterday, despite the fact that the petition case resulting in the recent Court Order had been officially closed, Cravath filed an appeal against handing over the Shell discovery documents for use in the Dutch courts. This is for an imminent human rights action being brought by Esther Kiobel against Shell in its home country.

Last month a US federal Judge Alvin K. Hellerstein ordered Shell’s US lawyers Cravath, Swaine & Moore LLP (Cravath) to make available to Esther Kiobel by 27 February, over 100,000 Shell discovery documents.

It is all Shell internal discovery assembled for the Kiobel vs Royal Dutch Petroleum Co case brought in the USA courts. That litigation was eventually thwarted by a US Supreme Court decision on territorial jurisdiction.

The most audacious argument being made by Cravath against the Court Order is that since Esther Kiobel has already waited more than twenty years in pursuing Shell, what’s the problem in her waiting even longer!

From Document 24 – page 7 of 18

Petitioner has waited more than twenty years since the alleged conduct underlying the Dutch claims occurred and nearly four years since the U.S. Supreme Court dismissed the U.S. claims for lack of jurisdiction. It is simply not credible for Petitioner to assert that she cannot wait until after appellate proceedings to receive the requested documents.

It is proper to declare that I am an advisor to Esther Kiobel, who is legally represented both in the USA and in the Netherlands. I am not a lawyer.

The following paragraphs almost all consist of extracts from the 18-page memorandum document below, which can be accessed in its entirety via the link provided.

Pursuant to the Court’s Order, the Petitioner Esther Kiobel has requested production from Cravath of confidential documents belonging to Shell that were previously produced in litigation that the U.S. Supreme Court dismissed for lack of jurisdiction in 2013 (Kiobel v. Royal Dutch Petroleum Co).

They were collected abroad from Shell and its foreign subsidiaries solely by reason of court-ordered discovery obligations in the prior litigation. Indeed, in one instance, counsel from Cravath were instructed to travel to Nigeria personally to search for and to collect documents from a Shell subsidiary for production in New York.

By this motion, Cravath respectfully requests that the Court stay its Order until after appellate proceedings conclude. Forcing Cravath to produce Shell’s documents now, prior to being heard by the Second Circuit, will effectively moot Cravath’s ability to appeal those issues. Petitioner has offered no reason why she would be harmed if she does not receive these documents immediately.

Petitioner has waited more than twenty years since the alleged conduct underlying the Dutch claims occurred and nearly four years since the U.S. Supreme Court dismissed the U.S. claims for lack of jurisdiction.

There is also a sufficient likelihood that Cravath will succeed on the merits of the appeal, especially in light of the strength of the other three factors that weigh in favor of a stay here.

I. CRAVATH WILL BE IRREPARABLY HARMED IF THE COURT’S ORDER IS NOT STAYED PENDING APPEAL.

II. PETITIONER WILL SUFFER NO INJURY IF SHE RECEIVES SHELL’S DOCUMENTS FOLLOWING APPEAL.

III. THE PUBLIC HAS NO INTEREST IN CRAVATH PRODUCING SHELL’S DOCUMENTS PRIOR TO THE COMPLETION OF APPELLATE PROCEEDINGS.

IV. CRAVATH IS LIKELY TO SUCCEED ON APPEAL.

CONCLUSION

For the foregoing reasons, Cravath respectfully requests that the Court grant a stay of its Order directing Cravath to produce the requested discovery pending appeal. February 13, 2017

Arguments supporting the four headings 1, 11, 111 and IV above can be read in the 16-page memorandum

ALL DOCUMENTS BELOW FILED 13 FEBRUARY 2017 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

2 PAGES: No. 1:16-cv-07992 (AKH) NOTICE OF APPEAL

2 PAGES: NOTICE OF CRAVATH, SWAINE & MOORE LLP’S MOTION TO STAY THE COURT’S ORDER GRANTING PETITIONER ESTHER KIOBEL LEAVE TO ISSUE A SUBPOENA PURSUANT TO 28 U.S.C. § 1782

18 PAGES: MEMORANDUM OF LAW IN SUPPORT OF CRAVATH, SWAINE & MOORE LLP’S MOTION TO STAY THE COURT’S ORDER GRANTING PETITIONER ESTHER KIOBEL LEAVE TO ISSUE A SUBPOENA PURSUANT TO 28 U.S.C. § 1782

63 PAGES: DECLARATION OF LAUREN A. MOSKOWITZ IN SUPPORT OF CRAVATH, SWAINE & MOORE LLP’S MOTION TO STAY THE COURT’S ORDER GRANTING PETITIONER ESTHER KIOBEL LEAVE TO ISSUE A SUBPOENA PURSUANT TO 28 U.S.C. § 1782

1 Comment on “US appeal against order to hand over Shell docs for Dutch case”

  1. #1 Veen
    on Feb 14th, 2017 at 19:54

    Rough weather looming for the brittish-dutch oil meganational ?

    — collapsed crude and NG prices.
    — a large reduction of the dutch production of natural gas.
    — rough legal weather picking up on the (former) activities in Nigeria.
    — Soon a public storm about the contribution to the scandal on exhaust emissions with poor diesel and petrol quality eg getting rid of otherwise chemical waste by using them in the fuels, among them petrol, kerosine, domestic heating fuel, diesel, marine diesel, heavy heating fuel and heavy marine fuel. The combustion capability of diesel engines has improved but during the decades in that regard the quality of automotive diesel (cetane number etc) has been steadiliy decreased.
    — the political / pharisee pressure for phasing out natural gas. The company tends to generate more turnover in NG than in crude and its products.
    — the political / pharisee pressure for phasing out fossile fuel for automotive (electric cars)
    — the political / pharisee pressure for phasing out NG and heating oil for keeping homes and offices comfortable warm
    — bathymarine CNG tankers see following) and Fluxitech as multiple more economic alternatives to LNG and long territorial and marine pipelines for transport and storage of NG. The company has invested many billions in LNG.

    Time to cash in on the shares of also the largest oil- and gas companies ? Those shares have traditionally been considered as sound investments. To some extent the shares of big banks have also been considered profitable investments (until 2007). It seems that cash Russian Ruble have become safer than stocks.

    ——————–

    Will the profitability of LNG facilities fade for ever? There has been little care about multiple $ per mmBtu total liquefaction and transport expenses for LNG during spot prices of $ 12 / mmBtu. But recently the spot prices hover around only $ 5 / mmBtu. New LNG projects are not very attractive for investors and exporters. What is the benefit of exporting NG when the customers pay $ 5 / mmBtu only and the expenses for LNG eat away $ 3 up to $ 4.5 of that ? The same counts in particular for long territorial or marine pipelines through teritories or EEZ of third states. The geographical fixation of pipelines and most (expensive) LNG facilities impair the attractiveness for investors, in particular now with multiple more years for earning back the investments.

    Bathymarine CNG-tankers could change the perspectives. The basic principles of bathymarine CNG tankers have been disclosed and published (www Turkmobile com / B ) Bathymarine CNG-tankers would require less than $ 2 / mmBtu and only a very small share of the investments would be geographically fixed.

    In particular the present low spot prices for LNG could encourage the introduction of bathymarine CNG-tankers. They are most interesting for short stretches, for example the crossing of the Black Sea or the Arabian Sea, from Iran to India or the transport from Russia to Japan. The expansion of the LNG trade could be derailed. It is only a matter of the introduction of bathymarine CNG-tankers and them becoming common. They and fluxitex would also derail the expansion of the long conventional heavy steel deep marine pipelines. — Brains instead of steel and billions — The global trade of natural gas and in future hydrogen would become much less dependant on the huge oil and gas companies.

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