By John Donovan
Shell lawyers Cravath Swaine & Moore LLP have hired Neal Katyal, a senior partner at the global law firm Hogan Lovells, to represent them in litigation relating to Shell’s human rights abuses in Nigeria.
Mr Katyal is a busy man. On Monday he will be arguing a case before the U.S. Supreme Court. For the first time, it includes President Trump’s appointee Neil Gorsuch. Katyal endorsed Gorsuch’s nomination to the U.S. Supreme Court, testifying at his Senate Judiciary Committee confirmation hearing.
This will be the first of a number of cases Neil Katyal will be arguing before the U.S. Supreme Court this summer. He has previously served as acting solicitor general in President Obama’s Justice Department. Thus he can fairly be described as one of the top lawyers in the USA.
He is the top gun lawyer hired by Cravath in an attempt to overturn a recent decision by a U.S. federal judge ordering a mountain of Shell internals documents to be handed over for use in a pending action against Shell in the Dutch Courts. That is an indication of the importance attached to the issue by Shell.
There is no way that Esther Kiobel, the person bringing the case against Shell in the Netherlands, still seeking justice for her late husband, Dr Barinem Kiobel, can afford to hire a preeminent U.S. lawyer. So much for the notion of an equal weight of arms between the parties.
She is, however, very grateful for the legal representation on her behalf in the U.S. courts by lawyers from EarthRights International.
The following is a related extract from an argument by Neal Katyal filed by Hogan Lovells at the United State Court of Appeals a few days ago trying to overturn the decision by District Judge Alvin K. Hellerstein:
“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)
Esther Kiobel is a US Citizen, not a discovery tourist. Her right to sue Shell in the USA was taken away from her by the U.S. Supreme Court.
Shell is self-evidently determined that at all costs, the 100,000 plus Shell discovery documents must not be handed over. If Shell is innocent of the charges of complicity in murder and other heinous crimes, why does it want to keep the truth buried in a secure U.S. warehouse?
What happened to the pledges of integrity, honesty and transparency under Shell’s claimed business principles? It is deeds, not words, that count.
Shell people in a number of countries will have been involved in relevant Nigerian discussions and decisions. The discovery documents would prove that. Shell escaped handing them over the first time. Will they get away with doing so again?