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