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In re Kiobel

United States District Court, S.D. New York

January 24, 2017

IN RE PETITION OF ESTHER KIOBEL, Petitioner, For an Granting Leave to Issue Subpoenas to Cravath, Swaine & Moore LLP for Production of Documents Pursuant to 28 U.S.C. § 1782


          ALVIN K. HELLERSTEIN United States District Judge

         On October 12, 2016, Petitioner Esther Kiobel ("Kiobel") filed a petition pursuant to 28 U.S.C. § 1782 seeking leave to issue subpoenas to the law firm Cravath, Swaine & Moore LLP ("Cravath") for the production of documents in Cravath's possession. Kiobel seeks these documents for use in an anticipated civil action that Kiobel intends to file in the Netherlands against Cravath's client, Royal Dutch Shell ("Shell") and related entities. Oral argument was held on December 20, 2016. At the hearing, I advised the parties that Kiobel's petition would be granted upon the parties' submission of a stipulation that addressed Cravath's concerns regarding the confidentiality of the documents sought. On January 13, 2017, the parties submitted a confidentiality stipulation and proposed order. For the reasons stated herein, Kiobel's petition is granted.


         In the early 1990s, Kiobel and her husband, Dr. Barinem Kiobel, were actively involved in an organization called the Movement for the Survival of the Ogoni People, which opposed Shell's activities in a region of Nigeria known as Ogoni. The Nigerian military launched a violent campaign to suppress this opposition movement, and in 1995, Kiobel's husband was executed by the Nigerian military.

         In 2002, Kiobel filed a class action lawsuit in the Southern District of New York against Shell and related entities under the Alien Tort Statute. 28 U.S.C. § 1350. Kiobel alleged that Shell and its Nigerian subsidiary were liable for gross violations of civil liberties and human rights committed by the Nigerian military against Kiobel, Kiobel's husband, and other Nigerians who opposed Shell's activities in Ogoni. Kiobel alleged that Shell was directly complicit in the execution of her husband and other opposition leaders following a rigged and corrupt criminal trial, and further alleged that she was personally whipped, sexually assaulted, and detained for three weeks when she attempted to bring her husband food during his detention prior to execution. In addition to this action, Kiobel v. Royal Dutch Petroleum Co., No. 02 Civ. 7618, three other lawsuits were filed in the Southern District of New York alleging Shell's complicity in the Nigerian government's campaign against the Ogoni people: Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386; Wiwa v. Brian Anderson, No. 01 Civ. 1909; and Wiwa v. Shell Petroleum Development Corp. of Nigeria, No. 04 Civ. 2665. Cravath represented Shell in each of these actions. During the course of these actions, Cravath gathered and produced numerous documents and engaged in other discovery-related activities.

         In 2013, the U.S. Supreme Court dismissed the Kiobel action on the grounds that the Alien Tort Statute is subject to a "presumption against extraterritorial application." Applying that presumption, the Court held that Kiobel's claim could not proceed in a U.S. court because all relevant conduct had occurred outside of the United States. See Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

         Kiobel alleges, in the petition now before me, that she intends to file an action in the Netherlands against Shell alleging the same tortious conduct, namely, Shell's alleged involvement in the execution of her husband, as well as Shell's alleged complicity in violations of civil liberties and human rights against the Kiobels and other Nigerians who opposed Shell's activities in Nigeria in the 1990s. In anticipation of this Dutch proceeding, Kiobel seeks to obtain the documents and other discovery materials (for example, deposition transcripts) that Cravath produced on behalf of Shell and related entities in the Kiobel and Wiwa actions. Kiobel believes this discovery would advance the foreign proceeding that she intends to initiate, and that she cannot obtain such discovery in the Netherlands because Cravath is outside the jurisdictional reach of the Dutch judiciary. Kiobel contends that 28 U.S.C. § 1782 is therefore the proper mechanism to obtain this discovery.


         I. Statutory Requirements

         To prevail in a Section 1782 petition, a petitioner must first satisfy three statutory requirements: "(1) that the person from whom discovery is sought reside (or be found) in the district of the district court to which the application is made, (2) that the discovery be for use in a proceeding before a foreign tribunal, and (3) that the application be made by a foreign or international tribunal or 'any interested person.'" In re Application of Esses, 101 F.3d 873, 875 (2d Cir. 1996). Cravath concedes that the third requirement has been satisfied, but contends that Kiobel has failed to satisfy the first two requirements.

         a. The First Statutory Requirement is Satisfied

         Under the first statutory requirement, the person from whom discovery is sought must reside in the district where the application is made. There is no dispute that Kiobel seeks discovery from Cravath, and that Cravath resides in the Southern District of New York. Cravath, however, argues that it is not the real "person from whom discovery is sought" because it is merely a custodian of documents that belong to Shell. Cravath suggests that the "real" person from whom discovery is sought is Shell, an entity that does not reside in this district. Consequently, Cravath argues, the first statutory element has not been met.

         No authority supports this argument. To credit Cravath's argument would effectively exempt many law firms from having to respond to Section 1782 petitions. Cravath has made this argument before, without success. In In re Application of Schmitz, 259 F.Supp.2d 294 (S.D.N.Y.2003), Cravath argued that the first statutory requirement had not been satisfied because it was the custodian of documents "solely for the purposes of the U.S. Litigation, " and that the true owner of the documents was its foreign client. The district court rejected the argument: "That argument is creative, but sails far wide of the mark. Application of section 1782 does not involve an analysis of... why a respondent has the documents. It is sufficient that respondents reside in this district, as they concededly do." Id. at 296. The Second Circuit did not disturb this ruling. See Schmitz v. Bernstein Liebhard & Lifshitz, LLP., 376 F.3d 79, 83 (2d Cir. 2004).[1] Other courts are in accord. See In re Mare Shipping Inc., 2013 WL 5761104, at *3 (S.D.N.Y. Oct. 23, 2013) ("Courts in this district have found that for purposes of a section 1782 claim, it is sufficient that a respondent law firm resides in this district, even if the real party in interest, the client, resides elsewhere."); In re Republic of Kazakhstan, 110 F.Supp.3d 512, 514 (S.D.N.Y. 2015) (granting Section 1782 petition seeking documents from law firm representing international client).

         The question is whether Cravath is in possession of the documents, not whom the documents "belong" to. Unless a court instructs otherwise, document productions made in response to a Section 1782 petition are governed by the Federal Rules of Civil Procedure. See 28 U.S.C. § 1782(a). Under those rules, relevant documents within the "possession, custody, or control" of the recipient of a discovery request are generally discoverable, regardless of who owns or created those documents. See, e.g., Fed. R. Civ. P. 34(a)(1); 45(1)(A)(iii). This is true notwithstanding Cravath's attorney-client relationship with Shell. "[D]ocuments held by an attorney in the United States on behalf of a foreign client, absent privilege, are as susceptible to subpoena as those stored in a warehouse within the district court's jurisdiction. Documents obtain no special protection because they are housed in a law firm; '[a]ny other rule would permit a person to prevent disclosure of any of his papers by the simple expedient of keeping them in the possession of his attorney."' Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170- 71 (2d Cir. 2003) (quoting Colton v. United States, 306 F.2d 633, 639 (2d Cir. 1962)). Here, there is no concern that privileged materials will be disclosed because Kiobel seeks only documents that Cravath has previously produced, which therefore have already been vetted for privilege.

         Thus, the first statutory requirement has been satisfied.

         b. The Second Statutory Requirement is Satisfied

         Under the second statutory requirement, the discovery sought must be "for use" in a foreign proceeding. "A § 1782 applicant satisfies the statute's 'for use' requirement by showing that the materials she seeks are to be used at some stage of a foreign proceeding." Mees v. Buiter,793 F.3d 291, 295 (2d Cir. 2015). Cravath argues that Kiobel has failed to satisfy this element because she has yet to commence an action against Shell in the Netherlands, and the representation that ...

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