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Kiobel vs Shell discovery doc battle continues in US Courts

Ms. Kiobel has been trying for years to obtain justice for the murder of her husband and other abuses committed against her. That justice was denied to her in the United States, not on the merits, but due to an unforeseen limitation on the reach of the Alien Tort Statute that no lower court had previously imposed.

By John Donovan

The headline above is not strictly correct.

The current battle in the US courts IS between Esther Kiobel and Cravath, Swaine & Moore LLP. However, the real battle is between Esther Kiobel and Shell – a long term client of Cravath.

Cravath holds over 100,000 Shell internal documents assembled by Shell for litigation brought by Esther Kiobel many years ago in the US courts. The following extract from a submission made by her lawyers on 23 February 2017 explains what happened:

Ms. Kiobel has been trying for years to obtain justice for the murder of her husband and other abuses committed against her. That justice was denied to her in the United States, not on the merits, but due to an unforeseen limitation on the reach of the Alien Tort Statute that no lower court had previously imposed.

In other words, Shell cunningly managed on a legal technicality to evade responsibility for its evil track record in Nigeria.

A US federal judge ruled that Esther Kiobel should be given access to the Shell discovery materials for use in litigation she is bringing against Shell in the Dutch courts. Cravath applied for a stay so that it can appeal his decision to a higher court.

I have provided links below to the relevant recent submissions made by both sides so that interested readers can form their own judgement on the arguments presented.

Plus the subsequent court order dated 2 March 2017 containing surprisingly forthright comments by the Federal judge.

I have also provided some extracts.(Please note page numbers quoted are from the numbers at the foot of each page).

FROM DOCUMENT 27 OF THE SUBMISSION MADE ON BEHALF OF ESTHER KIOBEL

From page 14 and 15

Petitioner will suffer substantial injury from a delay in production.

While Cravath will suffer no harm from allowing production, Petitioner very well may suffer substantial injury from a delay in production. Ms. Kiobel has been trying for years to obtain justice for the murder of her husband and other abuses committed against her. That justice was denied to her in the United States, not on the merits, but due to an unforeseen limitation on the reach of the Alien Tort Statute that no lower court had previously imposed.

Further delay at this point could prejudice her case.

As her Dutch counsel, Ms. Samkalden, explains:

Since my client settled in the United States after the events giving rise to this case, she has incessantly tried to bring her case before a court. She turned to the Netherlands when – 18 years after those events – the Supreme Court of the United States dismissed her case for lack of jurisdiction. The preparation of her case in the Netherlands has taken considerable time for the reasons set out in my previous declaration. At this moment, a full draft of the summons has been completed and discussed with my client. This draft should now be supplemented with the evidence marked as confidential in the American procedure. My client has urged me to file her case as soon as possible as she fears that further delay may result in unforeseen complications permanently barring her access to justice.

The myriad of procedural arguments Shell made in the case of Milieudefensie c.s. v. Shell further underlines the urgency of filing this case as soon as possible. I have no doubt that Shell would try to use the delay to its advantage if it thought it could argue that my client’s claim is, for example, barred by the statute of limitations.

Samkalden Decl. ¶¶ 2-3. To be clear, Petitioner does not think her claims are time-barred in the Netherlands. But she should not be forced to bear the risk of a limitations bar under these circumstances, where Cravath has shown no likelihood of success on appeal and only slight injury at best. As the Second Circuit has found in other contexts, the potential expiration of the statute of limitations “would severely prejudice” a plaintiff. Corke v. Sameiet M. S. Song of Norway, 572 F.2d 77, 80 (2d Cir. 1977).

From page 16 running on to page 17

2. The public interest favors denial of the stay.

Cravath argues that the public has “no interest” in the production of documents prior to the completion of appellate proceedings. See Dkt. 24 at 7. But the public does have an interest in justice being done, and presumably little interest withholding indisputably relevant evidence from use in a foreign tribunal. Indeed, Congress’s very purpose in enacting Section 1782 was to assist with foreign proceedings.

The public interest factors analyzed in other cases also apply to this one. There is a pressing need for truth in the Dutch action. The potential for justice has already been delayed decades…

Respectfully submitted,

/s/ MARCO SIMONS Marco Simons (pro hac vice) Upasana Khatri (pro hac vice)

EarthRights International

1612 K Street NW #401 Washington, DC 20006 Tel: 202-466-5188

Benjamin Hoffman Bar Code for S.D.N.Y.: BH2543 Columbia Law School Human Rights Clinic 435 West 116th Street New York, NY 10027 Tel: 212-854-3954 bhoffman@law.columbia.edu

Attorneys for Petitioner

EXTRACT FROM JUDGES ORDER GRANTING STAY PENDING APPEAL (THE BOLD PRINT HAS BEEN ADDED) 

On January 24, 2017, I granted Kiobel’s Section 1782 petition and ordered

Without endorsing any of the arguments Cravath has set forth in support of its motion to stay, many of which are specious, I nevertheless find that a stay is appropriate. If Cravath produces the documents at issue, and the Court of Appeals subsequently holds that I committed legal error or abused my discretion in granting Kiobel’s petition, Kiobel’s use of the documents during the interim cannot be undone. Thus, absent a stay, Cravath will be denied a meaningful opportunity to appeal my January 24 order.

That said, Kiobel’s concern that further delay may prejudice her ability to bring an action in the Netherlands is plausible and must be addressed. Cravath must therefore pursue its appeal expeditiously. The parties, with the assistance of Second Circuit Staff Counsel, should agree to an expedited briefing schedule and request that the Court of Appeals consider the appeal on an expedited basis.

Cravath’s motion to stay my January 24 order pending appeal is granted.

Kiobeldoc27 SUBMISSION ON BEHALF OF ESTHER KIOBEL 16 FEB 2017

Kiobeldoc28 SUBMISSION BY CRAVATH 23 FEB 2017

Kiobeldoc29 COURT ORDER DATED 2 MARCH 2017

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