By John Donovan

The battle in the US courts over Shell discovery documents was uneven from the start. Esther Kiobel versus Shell’s formidable US lawyers CRAVATH, SWAINE & MOORE, LLP. The Nigerian-born widow of a murdered Ogoni leader on one side, still fighting to put Shell on trial for complicity in his murder, and a giant law firm on the other, which since 2002, has been blocking her path to justice.

Nonetheless, a US Judge granted her recent petition for Cravath to hand over more than 100,000 Shell discovery documents stored in the USA so that Esther can use them in a pending action against Shell in the Netherlands. In response, Cravath hired another top law firm Hogan Lovells led by one of America’s top lawyers Neal Katyal to represent them in an appeal, thus becoming a battle between Esther Kiobel (now a US citizen) and two giant law firms. No doubt with the malevolent presence of Shell lurking behind the scenes pulling the strings.

In recent days parties representing 66,000 lawyers have entered the fray to prevent Shell’s documents being handed over. The decision granting Esther Kiobel’s petition has stirred up a hornets’ nest of lawyers and other parties representing more than three million businesses and professional organizations. According to the arguments being advanced, billions of dollars are at stake.

The main thrust of the arguments being made is not on ethics or principles but on monetary considerations. One party claims that $7.5 billion in revenues are at stake. Another tops that claim by mentioning a sum of $2.17 trillion. It may all seem far-fetched but that is what is being claimed. See extracts below from legal documents filed with the US Court of Appeals just a few days ago.

Esther Kiobel is represented by lawyers from EarthRights International. The forces now ranged against her are huge and growing. The parties joining the fight to reverse the decision in the Appeals court include:

The New York Bar Association representing 24,000 attorneys.

The Chamber of Commerce of the United States of America representing 300,000 direct members and indirectly representing the interests of more than three million businesses and professional organizations.

The Association of Corporate Counsel (“ACC”) is the leading global bar association over 42,000 members who are in-house lawyers employed by over 10,000 organizations in more than 85 countries.

The National Association of Manufacturers (“NAM”) is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states.

Links to relevant documents filed at the Appeals court are provided below together with extracts.

kiobeldoc48C (30pages)

MOTION OF THE NEW YORK CITY BAR ASSOCIATION FOR LEAVE TO FILE A BRIEF AMICUS CURIAE IN SUPPORT OF SHELL’S LAWYERS

Amicus Curiae Brief filed on behalf of the The New York City Bar Association representing 24,000 attorneys opposing the Federal Court decision to hand over Shell discover to Esther Kiobel.

Extract from page3 of 7

The Court’s decision in this case is of great importance to the Bar, both in New York and across the country. U.S. lawyers are estimated to provide foreign clients with some $7.5 billion in legal services a year? Under the ruling below, documents provided to counsel in order to obtain legal advice and representation in litigation in the United States may be exposed to discovery for use in a foreign proceeding…

Extract from page10 of 23

Shell’s only relevant connection to the United States was that Kiobel chose to sue it here. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1662-63 (2013). Shell contested jurisdiction every step of the way, and the only reason the documents Kiobel seeks are in the United States is because Shell provided them to its counsel. The district court’s decision penalizes Shell for this, and in doing so threatens ”’full and frank'” communication with New York counsel.

Extract from page19 of 23

The district court also erred in overriding the agreed confidentiality order entered in the litigation between Kiobel and Shell. Confidentiality agreements “serve ‘the vital function of ‘securing the just, speedy, and inexpensive determination’ of civil disputes by encouraging full disclosure of all evidence that might conceivably be relevant.’

Kiobeldoc49 (one-page) Law firm Filing

Kiobeldoc50 (one-page) Law firm Filing

Kiobeldoc51 (36 pages)

BRIEF OF AMICUS CURIAE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, ASSOCIATION OF CORPORATE COUNSEL, AND NATIONAL ASSOCIATION OF MANUFACTURERS IN SUPPORT OF SHELL’S LAWYERS

Extracts from Page9 of 36

The Chamber of Commerce of the United States of America (“Chamber”) is the world’s largest business federation. The Chamber represents 300,000 direct members and indirectly represents the interests of more than three million businesses and professional organizations of every size, in every industrial sector, and from every region of the country.

The Chamber regularly files amicus curiae briefs in cases that raise issues of concern to the business community.

The Association of Corporate Counsel (“ACC”) is the leading global bar association that promotes the common professional and business interests of inhouse counsel. ACC has over 42,000 members who are in-house lawyers employed by over 10,000 organizations in more than 85 countries.

Extracts from page10 of 36 running on to page11 of 36

The National Association of Manufacturers (“NAM”) is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12 million men and women, contributes $2.17 trillion to the U.S. economy annually, has the largest economic impact of any major sector, and accounts for more than three quarters of private-sector research and development in the nation. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States.

Amici are concerned about the implications of the district court’s unprecedented ruling—that it will discourage the kind of full and frank attorney-client communications that courts have long understood “promote broader public interests in the observance of law and administration of justice,” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), and that it will undermine litigants’ confidence in the protections afforded by confidentiality orders and thereby undermine discovery procedures and settlement discussions.

Extract from page12 of 36

The district court’s decision ordering RespondentAppellant Cravath, Swaine & Moore, LLP (“Cravath”) to produce client documents from several foreign clients (collectively, “Shell”) that those clients could not be required to produce represents a sharp break from bedrock principles of law. If allowed to stand, that decision will disrupt settled expectations and severely chill attorney-client communications…

Extract from page16 of 36

Shell provided Cravath with over 100,000 pages of documents for one purpose only: so that Cravath could provide legal services in connection with the Kiobel and Wiwa lawsuits. Had Shell known that engaging a New York law firm would expose those documents to production years after the fact, Shell may have been much less willing to disclose information to Cravath throughout the litigation. Those inhibitions would have hindered Cravath’s ability to comply with discovery requests and to furnish Shell legal representation, thus harming the parties and the litigation process itself.

Extract from page33 of 36

A single district court opinion rarely undermines important reliance interests in the civil justice system so severely as the decision below. But the district court’s decision simultaneously unsettled two long-recognized interests at the very core of modern litigation—the interests in promoting full and frank attorney-client communications, and in safeguarding litigants’ confidence in the protective orders that are the lifeblood of discovery. To avoid significant harm to those important interests, the decision below should be reversed.

CONCLUSION

The judgment of the district court should be reversed.

Kiobeldoc54 One-page letter filed by SULLIVAN & CROMWELL LLP

Kiobeldoc55C 23-page AMICUS BRIEF OF THE NEW YORK CITY BAR ASSOCIATION IN SUPPORT OF SHELL’S LAWYERS

SUBSEQUENT ADDED DOCUMENTS

KiobelAppealDoc58 Order 24 April 2017

KiobelAppealDoc60 NOTICE OF DEFECTIVE FILING 24 April 2017

KiobelAppealDoc61 One page

KiobelAppealDoc62 24-pages AMICUS BRIEF OF THE NEW YORK CITY BAR ASSOCIATION IN SUPPORT OF RESPONDENT-APPELLANT: Filed 25 April 2017

KiobelAppealDoc63 2-pages: NOTICE OF DEFECTIVE FILING:

KiobelAppealDoc66: One page Notice of Appearance of Amicus Counsel: 27 April 2017

KiobelAppealDoc68: NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL: 27 April 2017

Kiobel71: 2 pages: NOTICE OF DEFECTIVE FILING:  28 April 2017

Kiobel72: One page:NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL: 28 April 2017

Kiobel73: 36-pages: BRIEF OF AMICUS CURIAE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, ASSOCIATION OF CORPORATE COUNSEL, AND NATIONAL ASSOCIATION OF MANUFACTURERS IN SUPPORT OF RESPONDENT-APPELLANT: 28 April 2017

RELATED

Chamber Tells 2nd Circ. Law Firm Should Keep Docs Private

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