United States District Court, S.D. New York
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
OPINION AND ORDER GRANTING PETITION
K. HELLERSTEIN United States District Judge
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.
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.
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.
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).
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.
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
The First Statutory Requirement is Satisfied
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.
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). 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
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.
the first statutory requirement has been satisfied.
The Second Statutory Requirement is Satisfied
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 ...