United States District Court, S.D. New York
August 3, 2005.
ESTHER KIOBEL, et al., Plaintiffs,
ROYAL DUTCH PETROLEUM COMPANY and SHELL TRANSPORT AND TRADING COMPANY, p.l.c., Defendants.
The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
OPINION AND ORDER
Plaintiffs move to compel two categories of documents that
defendants have withheld on the basis of the attorney-client
privilege and work-product protection.
First, plaintiffs seek to compel the production of Document
Numbers 13, 18, 21, 35-38, 88, 111, 113, 119 and 123, as listed
on defendants' October 2003 Privilege Log, which were allegedly
prepared as a result of two television documentaries broadcast in
England that negatively depicted the environmental impact
resulting from the activities of defendants' subsidiaries in
Nigeria (the "Environmental Documents") (see October 2003
Privilege Log, annexed as Ex. C to the Declaration of Rory O.
Millson, Esq., dated December 8, 2003 ("Millson Decl.")). Second,
plaintiffs seek to compel the production of Document Numbers 91-94, 97-98, 100-05, and 124-208 which purport to be
communications from defendants' Nigerian counsel concerning a
Nigerian military tribunal (the "Tribunal Documents") (see
October 2003 Privilege Log, annexed as Ex. C to Millson Decl.).
Defendants have withheld each of the documents in issue on the
basis of attorney-client privilege and work-production
This case arises out of defendants' alleged cooperation with
the Nigerian government's alleged campaign of violence against
the Ogoni people in the Ogoni region of Nigeria.*fn1
According to plaintiffs, defendants and their subsidiaries
cooperated with the Nigerian government in retaliation for the
Ogoni's efforts to expose the environmental damage resulting from
defendants' oil development activities in Nigeria.
The activities of defendants' subsidiaries in Nigeria gave rise
to two television documentaries that were broadcast in England
and focused on the environmental impact of defendants'
activities. As a result of these documentaries, defendants considered commencing litigation against the Broadcasting
Standards Commission, a regulatory body that oversees English
television programming, and generated the Environmental Documents
in anticipation of that lawsuit.*fn2
The alleged violence perpetrated against the Ogoni also led the
Nigerian government to convene a military tribunal referred to as
the Ogoni Civil Disturbances Tribunal ("Ogoni Tribunal") (Declaration of O.C.J. Okocha, S.A.N., dated December
8, 2003 ("Okocha Decl."), at ¶ 20). Defendants' Nigerian
subsidiary, Shell Petroleum Development Company of Nigeria
("SPDC"), retained Nigerian counsel to represent it before the
Ogoni Tribunal (Okocha Decl. at ¶ 22). Although SPDC was never
formally charged with any misconduct, its Nigerian counsel
monitored the Ogoni Tribunal and drafted the Tribunal Documents
regarding SPDC's potential liability in the proceedings (Okocha
Decl. at ¶¶ 25-28).*fn3 III. Analysis
A. Choice of Law and Burden of Proof
Although the parties agree that Nigerian law applies to the
Tribunal Documents, they disagree concerning the law applicable
to the Environmental Documents. Plaintiffs claim that the
privilege issue concerning the Environmental Documents should be
analyzed under Nigerian law while defendants claim that it should
be analyzed under English law.
The factors applicable to determining what law should be
applied to a privilege dispute in a federal question case were
set forth by the Honorable Barbara S. Jones, United States
District Judge, in Aktiebolag v. Andrx Pharm., Inc.,
208 F.R.D. 92, 97-98 (S.D.N.Y. 2002):
Rule 501 of the Federal Rules of Evidence provides
that questions of privilege in a federal question
case are "governed by the principles of common law as
they may be interpreted by the courts of the United
States in the light of reason and experience." The
"common law" applied under Rule 501 includes "choice
of law" questions. Golden Trade S.r.L. v. Lee
Apparel Co., 143 F.R.D. 514, 519 (S.D.N.Y.
1992). . . .
. . . .
Where, as here, alleged privileged communications
took place in a foreign country or involved foreign
attorneys or proceedings, this court defers to the
law of the country that has the "predominant" or "the
most direct and compelling interest" in whether those
communications should remain confidential, unless
that foreign law is contrary to the public policy of
this forum. Golden Trade, 143 F.R.D. at 522; Bayer
[AG v. Barr Lab., Inc., 92 Civ. 0381 (WK)], 1994 WL
705331, at *4 [(S.D.N.Y. Dec. 16, 1994)]; see
also In re Ampicillin Antitrust Lit.,
81 F.R.D. 377, 391 (D.D.C. 1978); McCook Metals L.L.C. v.
Alcoa Inc., 192 F.R.D. 242, 256 (N.D. Ill. 2000).
The jurisdiction with the "predominant interest" is
either "the place where the allegedly privileged
relationship was entered into" or "the place in which
that relationship was centered at the time the
communication was sent." Golden Trade,
143 F.R.D. at 521-22; see Bayer, 1994 WL 705331, at *4.
See also Tartaglia v. Paul Revere Life Ins. Co.,
948 F. Supp. 325, 326 (S.D.N.Y. 1996).
Defendants' memorandum of law posits facts suggesting England
has the strongest relationship to the Environmental Documents and
argues that English law should, therefore, be applied.
Specifically, defendants claim that the communications were
generated in connection with litigation that was expected to take
place in England and concerned television programs broadcast in
England (Defendant's Memorandum of Law in Opposition to
Plaintiff's Motion to Compel Production of Privileged Documents,
dated December 8, 2003, at 5). It also appears, although it is
not entirely clear, that the attorney who either prepared or
received the Environmental Documents was a member of the English
bar. Defendants have, however, failed to submit an affidavit or
an affirmation to support these statements, and, thus, their
statements have no evidentiary weight. Giannullo v. City of New
York, 322 F.3d 139, 142 (2d Cir. 2003) (a memorandum of law "is
not evidence at all"); see Gulf Islands Leasing, Inc. v.
Bombardier Capital, Inc., 215 F.R.D. 466, 472 (S.D.N.Y. 2003). Plaintiffs argue in their reply memorandum that the
communications relate to events in Nigeria and that some of the
Environmental Documents were exchanged with employees of
defendants' Nigerian subsidiary (Plaintiffs' Reply Memorandum of
Law, dated December 22, 2003 ("Reply Mem."), at 13). Plaintiffs
have also failed to submit any material of evidentiary weight in
support of their argument.
Plaintiffs do not take issue with defendants' failure to submit
material of evidentiary weight, and plaintiffs' assertions
concerning the documents' connections with Nigeria and England
appear to be entirely consistent with defendants' description of
the documents. Given this record and given the unquestionable
need to resolve the choice of law issue; I shall deem the
representations of both parties to be true.
On balance, I believe that England has the more substantial
contact with the Environmental Documents. The communications
appear to relate to prospective legal action in England,
contemplated by a member of the English bar and arising out of
two television broadcasts in England. Although the content of the
broadcasts related to events in Nigeria, the broadcasts, and not
the underlying events, gave rise to the communications. Thus, I
conclude that English law should be applied to the claim of
privilege with respect to these communications. With respect to the Tribunal Documents, both sides agree that
the dispute should be decided in accordance with Nigerian law.
Turning to the burden of proof, it is well-established in this
Circuit that "the party invoking a privilege bears the burden of
establishing its applicability to the case at hand." In re Grand
Jury Subpoenas, dated Mar. 19, 2002 & Aug. 2, 2002,
318 F.3d 379, 384 (2d Cir. 2003); accord Diversified Group, Inc. v.
Daugerdas, 304 F. Supp.2d 507, 512 (S.D.N.Y. 2003). "Such a
showing must be based on competent evidence, usually through the
admission of affidavits, deposition testimony or other admissible
evidence. The burden cannot be met by `mere conclusory or ipse
dixit assertions' in unsworn motion papers authored by
attorneys." Gulf Islands Leasing, Inc. v. Bombardier Capital,
Inc., supra, 215 F.R.D. at 472 (internal citations omitted).
See also Golden Trade S.r.L. v. Lee Apparel Co.,
143 F.R.D. 514, 523 (S.D.N.Y. 1992).
Although the parties agree that the substantive law of either
Nigeria or England applies to this motion, the "procedure by
which the court would adjudicate privilege claims including the
allocation of the burden of production to the proponent of the
privilege and the means by which that burden must be discharged
are governed by federal law" of the United States. Koehler v. Bank of Bermuda, Ltd., M18-302, 931745 (MHD), 2003
WL 289640 at *10 n. 12 (S.D.N.Y. Feb. 11, 2003).
Although the law on the subject is not well developed, I
continue to believe that the appropriate manner to adjudicate
claims of privilege is the mechanism I suggested in ECDC Envtl.
L.C. v. New York Marine & Gen. Ins. Co., 96 Civ. 6033 (BSJ)
(HBP), 1998 WL 614478 at *3-*4 (S.D.N.Y. June 4, 1998):
Although it is clear that the proponent of the
privilege ultimately bears the burden of proving all
essential facts necessary to sustain a claim of
privilege, the law is not entirely clear as to how
this burden may be discharged where, as here, the
proponent has served a detailed index of documents
withheld, and the challenger has submitted specific
challenges. Apart from the specific challenges made
in its motion, defendant does not generally challenge
the adequacy of plaintiff's index.
Under these circumstances, it appears that the
proponent of the privilege may satisfy its burden by
submitting evidentiary material as to the challenged
elements only. Requiring the proponent to submit
evidentiary material to prove all elements of the
privilege in response to a specific challenge unduly
burdens and wastes the time of both the Court and the
parties. A party asserting a claim of privilege is
obligated to prepare an index of withheld documents,
which must provide sufficient information "to assess
the applicability of the privilege or protection."
Fed.R.Civ.P. 26(b) (5). Thus, a party challenging an
assertion of privilege is given the information
necessary to state the grounds of its challenge and
is not left to guess at the nature of what's being
withheld and why. Since the challenger is given this
information, there is no logic or efficiency in
requiring the proponent of a privilege or the Court
to address matters which are not contested by the
challenger. See generally In re Grand Jury
Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992);
Bowne of New York City, Inc. v. AmBase Corp.,
supra, 150 F.R.D. at 474; Golden Trade, S.r.L. v. Lee Apparel Co., 90 Civ. 6291
(JMC), 1992 WL 367070 at *5 (S.D.N.Y. Nov. 20, 1992).
Stated with slightly more detail, the withholding party's
initial obligation is to prepare an index of withheld documents
providing the specific information required by Fed.R.Civ.P.
26(b)(5) and Local Civil Rule 26.2. If the assertions of
privilege are not challenged, the withholding party has no
further obligation with respect to its assertions of privilege.
If the assertions of privilege are challenged and the dispute
cannot be resolved informally, the withholding party then has to
submit evidence, by way of affidavit, deposition testimony or
otherwise, establishing only the challenged elements of the
applicable privilege or protection, with the ultimate burden of
proof resting with the party asserting the privilege or
protection. See von Bulow v. von Bulow, 811 F.2d 136
, 144 (2d
Cir. 1987), citing In re Grand Jury Subpoena Dated Jan. 4,
1984, 750 F.2d 223
, 224 (2d Cir. 1984); Bowne of New York City,
Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y. 1993)
The foregoing procedure properly allocates the burden of proof
and saves the Court and the parties from having to address any
elements of a privilege or protection that are not in dispute. In
addition, the foregoing accurately reflects the manner in which
disputes concerning documents withheld on the ground of privilege
are currently resolved in this District. See, e. g., Johnson Matthey, Inc. v. Research Corp., 01
Civ. 8115 (MBM) (FM), 2002 WL 31235717 at *3 (S.D.N.Y. Oct. 3,
2002) ("[W]here the information in the privilege log is
insufficient to establish a factual basis for the privilege, the
proponent of the privilege bears the burden of showing its
applicability, a gap which often is filled through an affidavit
or deposition testimony."); CSC Recovery Corp. v. Daido Steel
Co., 94 Civ. 9214 (LAP) (THK), 1997 WL 661122 at * 2 (S.D.N.Y.
Oct. 22, 1997) ("[Defendant's] privilege log, combined with
[defendant's] affidavit, providing greater detail about the
authors and recipients of the documents and the context in which
they were generated, and the documents themselves, which have
been submitted for review, are more than sufficient to support
the asserted claims of privilege."). See generally U.S.
Info. Sys., Inc. v. Int'l B'hood of Elec. Workers, 00 Civ. 4763
(MBM) (JCF), 2002 WL 31093619 at *1 (S.D.N.Y. Sept. 17, 2002)
(holding that a privilege log that provides information required
by Local Civil Rule 26.2(a) is facially sufficient).*fn4
With the foregoing principles in mind, I turn to the parties's
specific arguments. B. The Environmental Documents
Plaintiffs' challenges to the Environmental Documents can be
divided into two categories: challenges to the factual assertions
in defendants' index which require an evidentiary showing to
sustain defendants' claim of privilege and pure legal challenges
that do not turn on the validity of any factual assertion in
defendants' index of withheld documents.
Plaintiffs challenge only four of the Environmental Documents
numbers 88, 111, 113 and 123 on the ground that defendants have
made an inadequate factual showing. Specifically, plaintiffs
argue that "[b]ecause Defendants fail to show that these
documents were made by or for outside counsel in order to secure
legal advice, the documents are not privileged and should be
produced immediately" (Memorandum in Support of Motion to Compel
Production of Privileged Documents, dated November 21, 2003 ("Pl.
Mem."), at 8). Although defendants have submitted three
affidavits in response to the pending motion, none of these
affidavits provide any factual information concerning the
circumstances surrounding the preparation of these four
documents. Accordingly, defendants have failed to sustain their
burden of proof with respect to documents 88, 111, 113 and 123,
and these documents should be produced.
Plaintiffs do not make any specific argument with respect to
the other documents that comprise the Environmental Documents, but rather claim that they are not privileged under
Nigerian law. However, since Nigerian law is inapplicable to the
Environmental Documents, these arguments are immaterial. As
explained below, plaintiffs' arguments are insufficient under
First, plaintiff claims that neither the attorney-client
privilege nor work product protection apply to communications
with in-house counsel. English law does not recognize this
distinction and treats in-house counsel and retained, independent
counsel identically for the purpose of applying the
attorney-client privilege. Alfred Crompton Amusement Machines
Ltd.,  2 Q.B. 102 at 109; Declaration of Colin Passmore,
Esq., dated December 8, 2003 ("Passmore Decl.") at ¶ 32.
Second, plaintiffs argue that the communications were either
made in furtherance of an illegal purpose or constituted crimes
themselves. Although English law does recognize the so-called
"crime-fraud" exception to the privilege, The Queen v. Cox &
Railton, 14 Q.B.D. 153 (1884), both English law and American law
place the burden of establishing the exception on the party
asserting it. O'Rourke v. Darbishire, A.C. 581, 604 (1920);
Barclays Bank plc v. Eustice, 4 All E.R. 511 (1995); In re
Richard Roe, Inc., 168 F.3d 69, 70 (2d Cir. 1999) ("`[A] party
seeking to invoke the crime-fraud exception must at least
demonstrate that there is probable cause to believe that a crime
or fraud has been attempted or committed and that the communications
were in furtherance thereof.'"). Plaintiffs offer no evidence
that the communications related to a then-ongoing crime or fraud
and, thus, have not established the applicability of the
Next, plaintiffs argue that the public interest justifies
disclosure of the communications. English law does not recognize
such an exception to the attorney-client privilege. Regina v.
Derby Magistrates' Court, A.C. 487 (1996); Passmore Decl. ¶ 11.
Plaintiffs' reliance on Waugh v. British Railways Board, A.C.
521 (1980) and Annesley v. Earl of Anglesea, L.R.Q.B. 317
(1743), for the proposition that there is a public interest
exception to the attorney-client privilege is misplaced. In the
former decision, the House of Lords concluded that an accident
report that had been prepared for both litigation and
non-litigation purposes was not privileged because the litigation
purpose was not the primary reason for the document's
preparation. Thus, the report was never privileged, and the issue
of piercing the privilege could not have arisen. In Annesley,
the English Court of the Exchequer in Ireland merely recognized
the well-settled principle that a communication with an attorney
in connection with an ongoing intentional tort (in that case, an
attempt to solicit an attorney to participate in baseless
criminal prosecution for a capital offense), was not privileged.
See Sawyer v. Barczak, 229 F.2d 805, 808 (7th Cir. 1956) (discussing
Annesley). Annesley simply does not recognize a
public-interest exception to the attorney-client privilege.
Finally, plaintiffs' contention that the Environmental
Documents are not privileged because they contain factual
information and/or relate to illegal oil spills is without merit.
A client's communications with his or her attorney are inherently
factual, and although inquiry can be made concerning those facts,
a communication with an attorney for the purpose of obtaining
legal advice remains privileged. In other words, although a
client can be asked about all relevant facts, he or she cannot be
asked what particular facts were disclosed to or discussed with
the attorney. To the extent that plaintiffs are attempting to
invoke the crime-fraud exception to the attorney-client
privilege, the common law rule is well settled that the
crime-fraud exception to the attorney-client privilege applies
only to present or future crimes; it has no application to
disclosures concerning prior, completed crimes. Lawyers' Duties
to the Court, L.Q.R. 1998, 114 (Jan.). 63-107 at 74. Thus, even
if the communications related to past criminal conduct, the
validity of the privilege is unaffected.
Finally, plaintiffs argue in their reply brief that defendants
have failed to offer evidence that an attorney-client
relationship existed with respect to the Environmental Documents (Reply Mem. at 14). Plaintiffs never made this argument in their
moving papers, and, understandably, defendants did not offer
evidence of the an attorney-client relationship in their
opposition. However, as noted above, I expressly advised the
parties before plaintiffs made their motion that defendants'
evidentiary burden would be limited to the factual issues raised
by plaintiff in their motion. Since plaintiffs made no challenge
in their opening papers to the existence of an attorney-client
relationship, defendants had no obligation to offer evidence on
C. The Tribunal Documents
As a threshold matter, defendants argue that plaintiffs' motion
seeking production of the Tribunal Documents should be dismissed
out of hand because plaintiffs have failed to submit any
competent evidence of Nigerian law. Plaintiffs' legal submission
consists of an unsigned statement purporting to be authored by
Femi Falana. Falana's credentials are not set forth in that
statement and his basis for opining on Nigerian law is,
therefore, unknown. Given the lack of signature and the lack of
any indication concerning the bases for Falana's opinions, I do
not give his statement any weight. However, since a question of
foreign law is a question of law, Fed.R.Civ.P. 44.1, plaintiffs' failure to submit evidence does not, by itself, require the
denial of the motion.
Plaintiffs argue that the Tribunal Documents should be produced
because they are merely reports of public proceedings and because
they were distributed to individuals who were not affiliated with
SPDC and were, therefore, outside the privilege.
Three provisions of Nigerian statutory law appear to be
relevant to defendants' assertion of privilege with respect to
the Tribunal Documents. Sections 170, 172 and 173 of the Nigerian
Evidence Act, Laws of the Federation of Nigeria ("Nigerian
Evidence Act") provide as follows:
170. (1) No legal practitioner shall at any time be
permitted, unless with his client's express consent,
to disclose any communication made to him in the
course and for the purpose of his employment as such
legal practitioner by or on behalf of his client, or
to state the contents or condition of any document
with which he has become acquainted in the course of
and for the purpose of his professional employment,
or to disclose any advice given by him to his client
in the course and for the purpose of such employment.
Provided that nothing in this section shall protect
(a) any such communication made in furtherance of any
(b) any act observed by any legal practitioner in the
course of his employment as such, showing that any
crime or fraud has been committed since the
commencement of his employment.
(2) It is immaterial whether the attention of such
legal practitioner was or was not directed to such
fact by or on behalf of his client. (3) The obligation stated in this section continues
after the employment has ceased.
172. If any party to a suit gives evidence therein at
his own instance or otherwise, he shall not be deemed
to have consented thereby to such disclosure as is
mentioned in section 170 of this Act, and, if any
party to a suit or proceedings [sic] calls any such
legal practitioner as a witness, he shall be deemed
to have consented to such disclosure only if he
questions such legal practitioner on matters, which,
but for such question, he would not be at liberty to
173. No one shall be compelled to disclose to the
court any confidential communication which has taken
place between him and a legal practitioner consulted
by him, unless he offers himself as a witness, in
which case he may be compelled to disclose any such
communications as may appear to the court necessary
to be known in order to explain any evidence which he
has given, but no others.
As summarized in Nigerian case law, "The general rule governing
the fiduciary relationship of a legal practitioner and his client
as stipulated by sections 170-173 of the Evidence Act is that no
disclosure of any communication made to the legal practitioner
in the course and for the purposes of his employment as a legal
practitioner by or on behalf of his client is allowed." Dawaki
Gen. Ent., Ltd. v. Amafco Ent. Ltd., 3 NWLR 224, 236 (1999)
(emphasis added). See also Martindale-Hubbell International
Law Digest at NGA-9 (2004) (stating that a "[l]egal practitioner
will not be allowed without express consent of his client to
disclose any communication or contents of any documents passing
between them in professional confidence."). Put differently, the
attorney-client privilege under Nigerian law protects "all communications between a lawyer and his client" subject to
limited exceptions not at issue here (Okocha Decl. at ¶ 10).
Therefore, "disclosure of any legitimate communication made
between a legal practitioner and his client in the course of and
for the purpose of his employment as a legal practitioner is not
permitted" (Okocha Decl. at ¶ 11).
There are limited exceptions to the broad applicability of
privilege under Nigerian law. One possible exception implicated
by plaintiffs' arguments is whether the privilege is waived by
the disclosure of the communication to a third party. Section 175
of the Nigerian Evidence Act answers this question negatively,
stating, "No one shall be compelled to produce documents in his
possession which any other person would be entitled to refuse to
produce if they were in his possession, unless such last
mentioned person consents to their production" (Okocha Decl. at ¶
16). Thus, it appears that disclosure of a document to a person
outside the attorney-client relationship does not result in a
waiver of the privilege.
With these general rules in mind, I address each of plaintiffs'
arguments in turn.
First, plaintiffs argue that factual reports concerning public
events such as the Ogoni Tribunal are not privileged. If the
common law of privilege as applied in the United States were at
issue, plaintiffs would prevail. TVT Records, Inc. v. Island Def Jam Music Group, 02 Civ. 6644 (VM) (DF), 2003 WL 749801 at
*2 (S.D.N.Y. Mar. 5, 2003); ECDC Envtl., L.C. v. New York Marine
and Gen'l Ins. Co., supra, 1998 WL 614478, at *9 ("An
attorney's communication to a client reporting facts learned by
the attorney from a third party is not within the attorney-client
privilege unless the information is included in legal analysis or
advice communicated to the client."). Nigerian law, however, is
to the contrary. As stated above, the scope of the Nigerian
attorney-client privilege is broad, and draws no distinction
between communications from counsel containing legal analysis
(see Okocha Decl. at ¶ 29). Moreover, the fact that the
communications in question concerned a public proceeding is
immaterial (Okocha Decl. at ¶ 30). Thus, plaintiffs' argument
based on the nature of the communication counsel's report of
public activities fails.
Second, plaintiffs argue that an unspecified number of
documents are not privileged because they are not authored by
individuals who have been identified as attorneys or because all
the recipients are unidentified (Pl. Mem. at 9). Thus, plaintiffs
argue, an essential element of an attorney-client communication
relationship is missing with respect to these documents. I have
carefully reviewed the index listings for all the Tribunal
Documents and determined that the authors of Documents 91, 92, 98, 180, 199-204 and 206 are not identified in any of the
parties' submissions and that all the recipients of documents 92,
98, 205 and 206 have not been identified.*fn5 Since an
attorney-client communication has not been demonstrated with
respect to these documents, they should be produced.
Accordingly, for all of the foregoing reasons, I conclude that
plaintiffs' motion to compel is granted to the extent that it
seeks production of documents 88, 91, 92, 98, 111, 113, 123, 180
and 199-206. In all other respects, plaintiffs' motion is denied.