Latest salvo in Shell Nigerian discovery docs battle
By John Donovan
Over 100,000 Shell internal discovery documents relating to the oil giants murderous conduct in Nigeria were assembled by Shell several years ago.
This huge task was undertaken for the famous Kiobel v Royal Dutch Petroleum lawsuit in the USA alleging that Shell was complicit in the murder of Ogoni leaders, including Ken Saro-Wiwa and the beloved husband of Esther Kiobel, Dr. Barinem Kiobel.
In 2013, Shell’s lawyers Cravath Swaine & Moore LLP managed to scupper that litigation on legal jurisdiction grounds in a historic U.S. Supreme Court Decision. The pre-trial proceedings, which had lasted over a decade, came to an abrupt end before the allegations could be brought to trial. Shell cleverly escaped responsibility. The content of the discovery documents remained confidential and under Shell’s control.
It is difficult to imagine how Esther Kiobel must have felt after waiting so many years for justice, to end up with the U.S. trial torpedoed before it even got underway.
Instead of giving up Esther contacted me. As a result, the same basic case is about to be brought in the Dutch courts. Shell’s home country.
For an unknown reason, instead of destroying the discovery documents, Shell lawyers Cravath stored them in a secure warehouse in the USA. A costly arrangement with significant annual charges. A move which must now be bitterly regretted by Shell and Cravath.
Hence the current legal battle in the US courts over the discovery documents stored in America. Shell is obviously determined at all costs that the documents should not be used in the pending Dutch case.
A U.S. federal judge ordered that the potential treasure trove of incriminating evidence must be handed over, but Cravath has appealed the decision and hired another global law firm Hogan Lovells to represent them.
In full war cry, Hogan Lovells filed their arguments at the United State Court of Appeals on Thursday 13 April asserting:
“This Court should not allow the world’s premier legal market to become a destination for discovery tourists looking to seize documents belonging to foreign companies represented by local counsel for purposes of foreign litigation.” (extract from page 33 of court doc 42)
As a reminder of the scope of the horrifying nature of the allegations, see the extract below from pages A16/A17 of Document 41 also filed on Thursday.
Ogoniland is an area of 650 square kilometers located in the Niger delta area of Nigeria, within the area administratively known as Rivers State, with a population of approximately 500,000. Oil was discovered in Ogoniland in 1956 and a consortium lead by Shell received the contract to develop and extract the petroleum products. Since Shell started operations in Nigeria, Ogoniland has yielded approximately $9 billion in oil revenue. In response to peaceful Ogoni protests against the severe environmental consequences of SPDC’s oil development, Shell and SPDC knowingly instigated, planned, facilitated, conspired and cooperated in unprovoked attacks by the Nigerian military, including the Mobile Police and the
Rivers State Internal Security Task Force (“ISTF”) against the unarmed residents of Ogoniland, resulting in extrajudicial killing, torture, arbitrary arrest and detention, cruel, inhuman and degrading treatment, crimes against humanity, rape, forced exile and the deliberate destruction of private property. Shell and SPDC financially supported the operations of these military units directly and indirectly, including the purchase of ammunition for the Police.
3. The movement for the Survival of the Ogoni People (MOSOP) and its leader Ken Saro-Wiwa attempted to negotiate a peaceful resolution to the dispute with the Government, SPDC and Shell. When these negotiations failed, MOSOP organized non-violent protests to bring public attention to the plight of Ogoniland. In response, Nigeria established the Ogoni Civil Disturbances Special Tribunal (the “Special Tribunal”), a military tribunal, to supervise and administer extra-judicial punishments on persons in Ogoniland deemed to be threats to public order. Shell and SPDC bribed prosecution witnesses to secure false testimony and otherwise cooperated with the Special Tribunal which meted out punishments to hundreds of persons. Mr. Saro-Wiwa, Dr. Barinem Kiobel and other Ogoni leaders were executed following summary proceedings before the Special Tribunal in 1995.
4. Shell and SPDC knew, should have known, or recklessly disregarded that the consequences of their conspiracy, collaboration and cooperation with the Nigerian military would include the violent acts that occurred. But they were willing to plan, aid, participate in and facilitate those acts in order to profit from Ogoniland’s proven oil and gas reserves.
Cravath Tells 2nd Circ. Shell Docs Bid A ‘Gambit’
Law360, Los Angeles (April 14, 2017, 7:44 PM EDT) — Cravath Swaine & Moore LLP told the Second Circuit it shouldn’t have to hand over Royal Dutch Shell documents for a planned environmental and human rights suit abroad, saying in a brief on Thursday that the records aren’t the firm’s to give.
The law firm is fighting a January order allowing Nigerian environmental and human rights advocate Esther Kiobel to subpoena documents from an earlier failed suit in which Cravath represented Shell, telling the appeals court the go-ahead was only given after Kiobel figured out work-arounds…