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Dr. Barinem Kiobel was one of the “Ogoni Nine” executed by a despotic Nigerian regime after a rigged trial. His widow, Esther Kiobel, holds Shell responsible for his murder on trumped-up charges and has been seeking justice for the last 22 years.

By John Donovan

Since 1996, various Kiobel family members have been pursuing litigation in the USA relating to Shell’s conduct in Nigeria. This fact is confirmed from the screenshot of listed court cases filed in the USA and blocked by Shell. Only one related application is still open and it is on the way to being closed as a result of a decision by a U.S. Appeals Court yesterday. The remaining case is described by the three Appeal Court judges as “extraordinary, and possibly unique.”


Dr. Barinem Kiobel was one of the “Ogoni Nine” executed by a despotic Nigerian regime after a rigged trial. His widow, Esther Kiobel, holds Shell responsible for his murder on trumped-up charges and has been seeking justice for the last 22 years.

After a US Supreme Court decision on jurisdictional grounds that Shell could not be pursued in the US courts for alleged crimes committed in Nigeria, Esther approached me seeking advice.

I recommended that she should sue Shell in its home country and made an introduction to Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira that subsequently, on behalf of Esther Kiobel and other Ogoni Nine widows, served a Writ on Shell in the Netherlands on 28 June 2017.

The same law firm filed a lawsuit in the USA seeking over a 100,000 documents gathered by Shell’s American lawyers Cravath, Swaine & Moore, as part of the discovery process in the original US proceedings. All stored in a secure warehouse.

A Federal Judge ordered Cravath to hand it all over. Cravath appealed and yesterday the US Appear Court overturned the decision made by the Federal Judge. See links below. The three judges took into account arguments made on behalf of many thousands of U.S. corporate lawyers and businesses, all against the documents being handed over.

It remains to be seen whether Esther Kiobel can and will appeal against the decision.

Meanwhile the decades pass without the Ogoni Nine widows main case ever being heard in court.

Shell and its lawyers – the best money can buy – continue to block litigation and exploit legal loopholes, instead of abiding by Shell’s claimed business principles, including integrity and transparency. These claimed values do not chime with Shell’s horrendous past and recent conduct in Nigeria, including corruption and pollution on an epic scale.

Clearly, big business and the establishment is in the ascendancy, while the human rights of ordinary people such as Esther Kiobel are trampled into the dust, especially under the Trump administration.

Doc 148-1 15 Page Opinion dated 10 July 2018

Doc 151 15 Pages

Doc 154 One Page Judgment

Doc 155 One Page Correction Letter

Disclosure relating to Esther Kiobel and her litigation against Shell launched in June 2017: The lead claimant Esther Kiobel, her lawyer Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira representing the widows, and the acclaimed human rights organisation Amnesty International, have all acknowledged the involvement of John Donovan in bringing *this case. (*See Writ of Summons in English and Dutch served on Shell 28 June 2017 – copy obtained from US Pacer public electronic court records)

Courtroom News Service


MANHATTAN (CN) – Delivering another defeat to a human-rights case that fell apart at the Supreme Court, the Second Circuit blocked an order Tuesday that would have forced a U.S. law firm to turn over client records.

Back in the early days of the case, the New York law firm Cravath, Swaine & Moore had represented Royal Dutch Shell against a group of Nigerians who suffered atrocities at the hands of their country’s military and police. Led by Esther Kiobel, the Nigerians sought to hold Shell liable under the Alien Tort Statute, but the Supreme Court eventually found that the United States lacked jurisdiction in the suit.

With lead plaintiff Esther Kiobel now pursuing justice at The Hague, where Shell is based, she subpoenaed the firm Cravath to turn over its old case documents.

A federal judge in New York granted Kiobel’s petition, but the Second Circuit reversed Tuesday, calling it an abuse of discretion to have “American counsel to deliver documents that would not be discoverable abroad.”

Quoting the 1997 case Application of Sarrio S.A., the appeals court said relief for Kiobel here “would jeopardize ‘the policy of promoting open communications between lawyers and their clients.’”

Indeed, the 15-page ruling states, “if foreign clients have reason to fear disclosing all pertinent documents to U.S. counsel, the likely results are bad legal advice to the client, and harm to our system of litigation.”

Writing for a three-person panel, U.S. Circuit Judge Dennis Jacobs warned of the potential fallout that courts could see if Kiobel’s subpoena was granted.

“In order to avoid potential disclosure issues under Section 1782, U.S. law firms with foreign clients may be forced to store documents and servers abroad, which would result in excessive costs to law firms and clients,” Jacobs wrote. “Alternatively, U.S. law firms may have to return documents to foreign clients (or destroy them) as soon as litigation concludes.”

(Parentheses in original.)

Kiobel was represented on appeal by Marco Simons, general counsel for EarthRights International. Simons said they are considering a petition for rehearing, calling the ruling here novel.

“This is the first time the Second Circuit has reversed a District Court’s discretionary decision to allow discovery under this statute,” Simons said in an interview.

Representatives for Cravath meanwhile declined to comment, forwarding a request on to Shell.

“Pursuit of this appeal does not change our firm commitment to support fundamental human rights in line with the legitimate role of business,” Shell said in a statement. “We have always denied, in the strongest possible terms, the allegations made by the plaintiffs in this tragic case. We believe it is right that the court has ruled against discovery of documents that were sent to the US for the purpose of American legal proceedings, in order to pursue a case in another jurisdiction. Suing a US law firm should not be a back door to secure documents from foreign clients, who are outside of US jurisdictional boundaries.”

Many of Kiobel’s former co-plaintiffs settled before the case went to the Supreme Court. Kiobel, whose husband was executed in 1995, claims that residents of Nigeria’s Ogoniland faced persecution for opposing oil exploration of their land.


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