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United States District Court, S.D. New York

August 3, 2005.

ESTHER KIOBEL, et al., Plaintiffs,

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge


I. Introduction

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 protection.

  II. Facts

  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) (collecting cases).

  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 English law.

  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., [1972] 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 exception.

  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 this matter.

  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 from disclosure —
(a) any such communication made in furtherance of any illegal purpose;
(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 disclose.
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.

  IV. Conclusion

  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.


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