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KIOBEL v. ROYAL DUTCH PETROLEUM COMPANY

August 3, 2005.

ESTHER KIOBEL, et al., Plaintiffs,
v.
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

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 ...


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