Being tesxt of EMAIL SENT TO SHELL LEGAL DIRECTOR, DONNY CHING: FROM JOHN DONOVAN
You laid it on thick about Shell ethics and principles in your impressive speech: “FOLLOWING THE NORTH STAR: NAVIGATING COMPANIES TOWARDS A GOOD REPUTATION”
Nowadays, reputation is harder to win. And much easier to lose. In this context it is not enough to simply say: “Trust us.” Trust. Reputation. These are not simply messages to be broadcast. They are the outcomes that result from consistently ethical behaviour.
I invite you to demonstrate that you mean what you say.
Esther Kiobel has been trying for the last 15 years to have her human rights case against Shell heard in the courts. Thus far, Shell has managed to prevent that happening. Her x-rated allegations against Shell concerning murderous events in Nigeria are truly shocking. They are set out in a brief lodged at the US Appeals Court a few days ago on her behalf by lawyers from EarthRights International.
Shell lawyers blocked the original action in the US courts for over a decade and are now intent on frustrating pending proceedings bringing the same action on the same grounds in the Dutch courts.
Before anyone asks why Esher Kiobel did not bring proceedings in Nigeria, I would point out that Shell has admitted corrupting the independence of the Nigerian authorities. See “Shell’s grip on Nigerian state revealed“.
On one occasion, a Shell chairman Sir John Jennings did prove his support for Shell’s business principles by funding two cases I brought against Shell. The unique arrangement did not survive his retirement when Shell quickly ditched the contract signed by David Varney, a then Shell Managing Director, and reverted to the usual underhand tactics, including blackmail, sinister undercover activity and fabrication of evidence presented in court.
I am not suggesting that Shell repeats the kind of grand gesture made by Sir John. Only that you instruct your US lawyers to withdraw their appeal against a decision already made by a Federal Judge that Shell should handover the 100,000 plus documents gathered internally at Shell for the stymied US litigation.
If Shell is innocent of the allegations made by Esther Kiobel what is there to hide? Let her have her day in court. Stop throwing up obstacles.
The current situation is eloquently explained in the extracts below from the briefing filed last week.
I look forward to your response.
EXTRACTS ALL IN BOLD PRINT
INTRODUCTIONThis is a narrow discovery dispute. The district court simply granted Petitioner- Appellee Esther Kiobel (“Petitioner”) renewed access to the same non-privileged documents that Respondent-Appellant Cravath, Swaine & Moore LLP, (“Cravath”) had already produced to her in a previous case, in order to litigate the same claims in the proper forum. In reaching that common-sense result, the district court did not err or abuse its discretion.By attempting to shield the previously-produced documents here, Cravath just seeks to throw sand in the gears of Petitioner’s imminent case in the Netherlands. Title 28 U.S.C. § 1782 allows U.S. courts to assist foreign courts by permitting discovery of documents held in the United States. And that is all the district court did. Cravath and its amici paint the decision below as having broad consequences, but it applies only to the narrow circumstances presented here: production of non- privileged “documents that Cravath has previously produced” to Petitioner herself. A280. That is manifestly an efficient use of Section 1782, and this Court’s caselaw already provides that non-privileged documents from foreign clients can be subpoenaed from U.S. law firms.Petitioner, Esther Kiobel, is one of the many victims of widespread human rights abuses committed by the then-existing Nigerian military dictatorship against an ethnic minority, the Ogoni people, for protesting against the operations of Royal Dutch Shell and its affiliates (“Shell”) and the harms it inflicted in their homeland. In particular, Petitioner’s husband, Dr. Barinem Kiobel, was one of nine Ogoni leaders sentenced to death by a kangaroo military tribunal. When she went to deliver food to him in detention, she was whipped, sexually assaulted and imprisoned. Despite worldwide outrage, including objections by the United States, all nine leaders were executed.
Petitioner was the lead plaintiff in one of four civil suits alleging Shell’s complicity in this bloody campaign. Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457 (S.D.N.Y. 2006). Her case eventually reached the Supreme Court, where her claims, brought solely under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, were dismissed on extraterritoriality grounds. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).Having essentially been told she chose the wrong forum, Petitioner now turns to an indisputably proper one: the courts of the Netherlands, Shell’s home country. She is preparing a lawsuit there against Shell for the same conduct alleged in Kiobel. There is no dispute that Cravath has non-privileged documents relevant to that case in this district, documents it previously produced to Petitioner in the U.S. litigation.The district court carefully crafted its order to be as minimally burdensome as possible, requiring a confidentiality order – to which Cravath stipulated after negotiations – that mirrored the order in the underlying Kiobel litigation. Although Cravath and its amici argue that confidence in protective orders would be underminedif this discovery were allowed, the district court’s order does not undermine any reasonable expectations. Shell has never shown that the documents are actually confidential. And it originally produced the documents with the understanding that Petitioner would use them to prove her claims against Shell; due to Shell’s successful argument in Kiobel that U.S. courts cannot hear the claims, that will now occur in the Netherlands, but this in no way prejudices Shell or Cravath. Indeed, Shell can seek further protections in the Dutch court.
The district court’s order granting discovery was equivalent to ruling that, following a forum non conveniens dismissal, a party could use the evidence developed in U.S. litigation to continue litigating a re-filed case in the appropriate foreign forum. It is remarkable only for the degree of opposition it has generated from Cravath.
Cravath’s proposed alternative makes little sense. Instead of simply providing the documents it has already produced, which remain in the United States, Cravath suggests that Petitioner should sue Shell in the Netherlands, without the benefit of this evidence, and then ask the Dutch court to order Shell to order Cravath to return these documents to the Netherlands. At best, that is a recipe for inefficiency and delay; at worst, it is an attempt to prevent Petitioner from fully presenting her claims in Dutch court. The documents are here, and the district court was well within its discretion under Section 1782 to order Cravath to produce them here.
STATEMENT OF THE CASE A. Petitioner’s claims and the Kiobel litigation.Petitioner previously brought suit in U.S. court against four defendants associated with Royal Dutch Shell (“Shell”), and the allegations of that suit, Kiobel v. Royal Dutch Petroleum Co., No. 02 Civ. 7618 (S.D.N.Y.), also form the basis of her imminent suit in the Netherlands.Petitioner alleges that Shell’s operations in Nigeria’s Ogoni territory devastated property, farmland, and natural resources. A28-30. Eventually, in the early 1990s, the Ogoni people formed a popular, grassroots protest organization, the Movement for the Survival of the Ogoni People (MOSOP). A17, A30. To quell the widespread public outcry against Shell’s activities, the Nigerian military resorted to a campaign of violence, aided and abetted by Shell. A16, A31-34.Nigerian soldiers subjected peaceful protestors and community organizers to systematic human rights violations, including torture, arbitrary arrest and detention, rape, massacres, and other extrajudicial killings. A15-26, A31-39. This culminated in the 1995 arrest and military trial of Ogoni leaders – the “Ogoni Nine” – which included MOSOP leader and acclaimed writer Ken Saro-Wiwa, as well as Petitioner’s husband, Dr. Kiobel. A36-39. When Petitioner tried to bring food to her husband in detention, she was whipped, sexually assaulted, and detained without food, water, or other basic necessities for three weeks. A18-19. Finally, the Ogoni Nine were sentenced to death. A39. Despite widespread international condemnation, on November 10, 1995, all were hanged. Id.
Petitioner alleges that Shell conspired with the Nigerian junta before and during the sham trial leading to Dr. Kiobel’s execution, which was carried out “1) in retaliation for his outspoken objection within policy making circles in the Nigerian government to . . . the plan to support [Shell’s] operations in Ogoniland by means of violent military suppression of the popular opposition; and 2) to prevent him from revealing to the public Shell’s conspiracy and cooperation with the Nigerian government” in this violence. A18.In 1996, victims of the campaign of terror in Ogoni, including Ken Saro- Wiwa’s family, sued Shell under the ATS and the common law. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 93-94 (2000). The district court originally dismissed on forum non conveniens grounds, but this Court reversed, id. at 108, also finding personal jurisdiction over Shell. Id. at 95. The Wiwa plaintiffs subsequently filed actions against a Shell executive, Wiwa v. Brian Anderson, No. 01 Civ. 1909 (S.D.N.Y.), and Shell’s Nigerian subsidiary, Wiwa v. Shell Petroleum Development Corp. of Nigeria, No. 04 Civ. 2665 (S.D.N.Y.).In 2002, Petitioner and others brought the original Kiobel action against Shell. A11. The district court then consolidated Wiwa and Kiobel for pre-trial discovery. Id. The cases resulted in a significant volume of discovery, including depositions and documents produced. Id. This discovery proceeded pursuant to stipulated confidentiality agreements (the “Original Orders”). See A12, A55-83. Although the agreements were entered as court orders, the court made “no finding as to whether the documents are confidential,” and did not authorize filings under seal. A81.
Shell settled the three Wiwa cases in 2009 for $15.5 million, just before trial. See Settlement Agreement in Wiwa v. Royal Dutch Petroleum Co. (S.D.N.Y. 2009), 48 I.L.M. 972 (Sept. 2009).Meanwhile, Kiobel proceeded on interlocutory appeal to this Court, which held that corporations could not be sued under the ATS. 621 F.3d 111, 120 (2d Cir. 2010). The U.S. Supreme Court granted certiori, but ultimately addressed a different issue. It dismissed the case, ruling that the ATS does not apply to extraterritorial conduct where the only connection to the United States was the defendant corporations’ “mere presence” here. Kiobel, 133 S. Ct. at 1669.B. Petitioner pursues litigation in the Netherlands, but cannot use the Kiobel discovery.Following the Supreme Court’s decision, Petitioner sought to pursue her claims against Shell in the Netherlands, its home (the “Dutch Kiobel Case”). A195. Her counsel began preparing the case, id., but Petitioner could not simply use the U.S. discovery. The Original Orders only permitted her to use confidential materials in “the Litigation” – although undefined, presumably the U.S. litigation – and prohibited retention of such materials after dismissal of the “Litigation.” A74, A79-80.Rather than starting over from scratch in the Netherlands after ten years of U.S. litigation, Petitioner followed the most efficient course: to reproduce the U.S. discovery. The party most likely to have a complete record of the discovery was Cravath, which represented Shell and directly produced the discovery to the plaintiffs. A11.
C. Petitioner seeks 28 U.S.C. § 1782 discovery to aid in the Dutch case.Because Dutch law requires a higher evidentiary showing at the filing stage, A86, Petitioner sought to obtain the prior discovery in order to prepare the Dutch Kiobel Case. She filed a 28 U.S.C. § 1782 petition, which was assigned to Judge Alvin K. Hellerstein.At the hearing, Cravath conceded that it had the documents “[i]n a warehouse,” and did not disagree with Judge Hellerstein’s supposition that they were kept “[i]n a highly organized fashion that a sophisticated law firm uses.” A212-13. Nor did Cravath dispute Judge Hellerstein’s observation that Cravath, which continues to represent Shell, “will make every argument that Shell wants it to make.” A225.Judge Hellerstein indicated he would grant the petition, but wanted to ensure that the materials would only be used for the Dutch Kiobel Case, A220-21, and thus required the parties to work out “an application of the old protective order to the new situation.” A234. Judge Hellerstein gave the parties no other direction on the substance of the confidentiality order.The parties were able to agree upon and submitted a stipulated confidentiality order (the “New Order”), essentially mirroring the Original Orders. A236-244. Cravath did not object to any terms in the confidentiality order, except for preserving its position that discovery was improper. A243. Only after the New Order was in place did the district court grant the Section 1782 petition. A276-90.
Cravath appealed and, upon Cravath’s application, the district court stayed enforcement of its order pending appeal. A291-94.
(COMPLETE 67 PAGE DOCUMENT)