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A devastating blow for Shell in U.S. Federal Court

By John Donovan

Earlier this week, on Tuesday, December 20, 2016, a U.S. website -Law360 – which reports American court proceedings, published an article about a decision made that same day by Federal U.S. District Judge Alvin K. Hellerstein.

Lawyers acting on behalf of Esther Kiobel had filed a petition seeking documents used in her case against Shell brought in the United States, which was ultimately thwarted by a US Supreme Court decision on extraterritoriality grounds in 2013.

The case is now being brought in the Dutch courts.

See: Shell faces possible Dutch lawsuit over Nigerian activist’s execution

The Dutch Kiobel Case will allege that Netherlands-based Royal Dutch Shell and its predecessors were complicit in gross violations of civil liberties and human rights directed at Dr Kiobel and Esther Kiobel, including arbitrary detention and arrest; attempted rape; cruel, inhuman, and degrading treatment; and violations of the right to a fair trial and the right to life.  (Extract from petition)

Esther Kiobel holds Shell responsible for the murder of her late husband, Ogoni leader Dr. Barinem Kiobel.

Despite extensive arguments advanced by Shell lawyers in a 31-page submission, Judge Hellerstein informed Kiobel lawyer Marco B. Simons “You’re going to get the documents.”

A record of the relevant U.S. court hearing must presumably have been published on the court website. That would explain how Law360 obtained the information they have published.

If so, it must have been subsequently removed as there is now no record on the court docket.

It seems from the Law360 article (below) that the Judge had a concern about Shell being potentially embarrassed by the handover of documents.

Given the seriousness of the allegations, I can see why Shell might ultimately end up being more than embarrassed.

The important news of the decision made by Judge Hellerstein was put into the public domain, but almost entirely hidden behind a paywall. I believe it is too important to remain so.

Cravath Told To Give Shell Docs To Kiobel For Dutch Lawsuit

By Pete Brush

Law360, New York (December 20, 2016, 4:13 PM EST) — A New York federal judge on Tuesday ordered Cravath Swaine & Moore LLP to fork over a trove of Royal Dutch Shell documents to noted Nigerian environmental and human rights plaintiff Esther Kiobel for her use in planned litigation against the energy giant in the Netherlands.

The law firm, which defended Shell against similar suits in the U.S. before a key U.S. Supreme Court ruling denying Kiobel and others jurisdiction, is subject to a “liberal” standard for handing over documents to Dutch counsel under federal law providing for assistance to foreign courts and litigants, U.S. District Judge Alvin K. Hellerstein said.

“You’re going to get the documents,” Judge Hellerstein told Kiobel counsel Marco B. Simons of EarthRights International. But he added that the turnover would be subject to “a proper protective order” to be hashed out by Jan. 6.

Judge Hellerstein said a protective order would shield Shell from leaks designed to embarrass the company but would still allow for litigants in the Netherlands to fully access hundreds of thousands of documents in anticipation of drawing a cogent complaint.

“I’ll tell you what bothers me, Mr. Simons,” the judge said. “I don’t want you to use these documents for publicity purposes.”

Simons did not push back against the notion of a confidentiality agreement.

Kiobel, who accuses Shell of being complicit with Nigerian authorities in human rights violations including “arbitrary detention and arrest; attempted rape; cruel, inhuman, and degrading treatment; and violations of the right to a fair trial and the right to life,” is taking her claims to the Netherlands after being turned away from U.S. courts.

Judge Hellerstein’s order came over concerns expressed by Cravath litigation partner Lauren A. Moskowitz, who argued that such a turnover order would open the floodgates in U.S. courts for subpoenas from overseas jurisdictions.

Judge Hellerstein rejected that argument, noting that the documents had once been in the hands of Kiobel’s counsel but had been destroyed at some point after the high-profile U.S. litigation was deep-sixed.

“We’re not dealing with your work product. We’re dealing with stuff you got from a client,” the judge said. “It’s not a floodgate issue.”

The judge also took a dig at Cravath after it argued Kiobel’s counsel was making an improper “end run” around Shell in searching for the documents.

“I’m sure that Cravath would make any argument that Shell wants them to make,” Judge Hellerstein said.

Kiobel is represented by Marco B. Simons of EarthRights International.

Cravath is represented in-house by Lauren A. Moskowitz.

The case is Kiobel v. Cravath, case number 1:16-cv-07992, in the U.S. District Court for the Southern District of New York.

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