In Re Petition of Esther Kiobel, No. 16-cv-07992 (S.D.N.Y. Jan. 24, 2017) [click for opinion]

Petitioner Esther Kiobel ("Kiobel") is a woman whose husband was executed by the Nigerian military in 1995 in their suppression of a movement opposed to Royal Dutch Shell's ("Shell") activities in the region. In 2002, Kiobel filed a class action lawsuit under the Alien Tort Statute, 28 U.S.C. § 1350 ("ATS"), in the Southern District of New York ("SDNY") against Shell, alleging that it and its Nigerian subsidiary were complicit in gross violations of civil liberties and human rights committed by the Nigerian military against Kiobel, her husband, and other Nigerians opposed to Shell's activities. Three other lawsuits were filed in the SDNY alleging Shell's complicity in the Nigerian military's actions.

Cravath, Swaine & Moore LLP ("Cravath"), a law firm, represented Shell in each of these actions. In 2013, the U.S. Supreme Court dismissed Kiobel's lawsuit on the grounds that all relevant conduct had occurred outside the United States (holding that the ATS is subject to a presumption against extraterritorial application). In this petition, Kiobel alleged that she intends to file an action in the Netherlands against Shell for the same conduct and, in anticipation of this action, seeks to obtain documents under 28 U.S.C. § 1782 from Cravath that Cravath produced in its representation of Shell.

To prevail under a § 1782 petition, a petitioner must satisfy three statutory requirements: (1) that the person from who discovery is sought reside in the district of the district court to which the application is made; (2) 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. The court held that the first two statutory requirements were satisfied and that Cravath had conceded the third requirement. With respect to the first requirement, there was no dispute that Kiobel was seeking discovery from Cravath and that Cravath resides in the SDNY. The court further held that under the Federal Rules of Civil Procedure, which govern § 1782 petitions, relevant documents within the "possession, custody, or control" of the recipient of a discovery request are generally discoverable, regardless of who owns or created the documents. The court also noted that there were no privilege concerns because the documents Kiobel sought were already produced by Cravath and therefore vetted for privilege.

With respect to the second requirement, the court stated that the requirement is satisfied if the relevant foreign proceeding is within reasonable contemplation, which should be shown by objective indicium. Here, Kiobel had drafted a writ of summons initiating the Dutch proceeding, applied for and obtained legal aid in the Netherlands, and sent liability letters to Shell which tolled the statute of limitations. And, while Kiobel had delayed the Dutch proceeding in order to gather evidence, the court noted this was both logical and defensible given that Kiobel must present a certain amount of evidence in order for the Dutch action to proceed. The court held that for those reason, the second requirement was satisfied.

In addition to these statutory requirements, there are four discretionary factors a court may consider when granting a § 1782 petition: (1) whether the person from who discovery is sought is a participant in the foreign proceeding, in which case the need for the petition is generally not apparent; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government to U.S. judicial assistance; (3) whether the § 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions; and (4) whether the request is unduly intrusive or burdensome.

With respect to the first factor, although Cravath is technically the person from whom discovery is sought and is not expected to be a party in the foreign proceeding, Cravath's client, Shell, will be. The court stated that Cravath's connection to the foreign proceeding is part of a broader inquiry: whether discovery is outside the foreign tribunal's jurisdictional reach and, thus, unobtainable absent § 1782 aid. The court noted that Kiobel seeks discovery from Cravath in order to keep its Dutch proceeding alive, which may be foreclosed before an opportunity to obtain discovery from Shell. Furthermore, Shell represented in prior Dutch actions that it is no longer in possession of many requested documents. For these reasons, the court held that discovery is unobtainable absent § 1782 aid, and the first factor weighed in favor of Kiobel.

With respect to the second factor, the court stated that courts should consider only authoritative proof that a foreign tribunal would reject evidence obtained under § 1782 and that Cravath bears the burden of showing such proof. Cravath offered no authoritative proof and the court held that the second factor also weighed in favor of Kiobel. With respect to the third factor, the court stated that the proper inquiry is whether the Dutch judiciary imposes a prohibition that would preclude the use of the requested materials in the Dutch proceeding. Cravath offered no proof that the Netherlands imposes such prohibitions and, thus, the court held that the third factor weighs in favor of Kiobel. The final factor weighs in favor of Kiobel because Defendant's burden is minimal as it has already produced all of the documents Kiobel seeks.

For the foregoing reasons, the court granted Plaintiff's petition under § 1782.