Summary
When the Ogoni people of Nigeria organized in protest of Shell’s oil operations in the Niger Delta, Shell worked with the Nigerian military to crack down on the Ogoni. Nigerian soldiers used deadly force and massive, brutal raids against the Ogoni people throughout the early 1990s to repress a growing movement against the oil company. This crackdown culminated in the execution of nine Ogoni leaders, known internationally as the “Ogoni Nine,” on November 10, 1995.
After fleeing Nigeria in 1996, Esther Kiobel, the wife of Dr. Barinem Kiobel (one of the Ogoni Nine), fled to the United States. In 2002 she filed a class action lawsuit under the Alien Tort Statute in federal court in the Southern District of New York. In an earlier, related action, ERI represented the family members of Ogoni Nine member Ken Saro-Wiwa and other survivors in a lawsuit, Wiwa v. Royal Dutch Petroleum (Shell), which ended in a landmark settlement in 2009. Unlike in Wiwa, however, Esther Kiobel’s case continued through the courts, only to be dismissed for jurisdictional reasons by the U.S. Supreme Court in 2013.
As one final means of obtaining justice, in 2017 Ms. Kiobel filed a civil action in the Netherlands—home of Royal Dutch Shell—based on the same claims. Critical to winning her case in the Netherlands is evidence discovered during the U.S. Wiwa and Kiobel cases. Although this evidence was available to Ms. Kiobel during her U.S. lawsuit, she was required to return or destroy it when her case was thrown out of U.S. courts. This critical evidence still exists in the possession of the law firm that represented Shell in the U.S. litigation: Cravath, Swaine & Moore, LLP. In order to assist in re-obtaining these documents, ERI filed a petition pursuant to the Foreign Legal Assistance (FLA) Statute, 28 U.S.C. § 1782, in the Southern District of New York on Ms. Kiobel’s behalf.
Ms. Kiobel herself was whipped, sexually assaulted, and detained without food, water, or other basic necessities for weeks when she tried to bring food to her husband at a detention camp.
Cravath, Swaine & Moore, LLP is a law firm based in New York City. The firm previously represented Shell during the course of Kiobel’s U.S. litigation, and holds documents that may prove critical to Kiobel’s Netherlands-based civil action. Cravath appeared on behalf of itself at the district proceedings. Hogan Lovells additionally represented Cravath during appellate proceedings.
Timeline
2013
Over ten years after she originally filed her case, the U.S. Supreme Court dismissed Esther Kiobel’s lawsuit against Shell for extraterritoriality reasons. In a continued effort to achieve justice, Kiobel turned to courts in the Netherlands—Shell’s home jurisdiction—to pursue her claims. Human rights attorneys at Prakken d’Oliveira in Amsterdam took up her case, and in December 2013, Channa Samkalden of Prakken d’Oliveira issued a liability letter to Shell to put it on notice of Ms. Kiobel’s claims against it for involvement in the criminal trial leading to the 1995 execution of her husband, Dr. Barinem Kiobel.
2016
ERI, on behalf of Esther Kiobel, returned to the same federal court where Kiobel filed her original U.S. litigation, and submitted a petition pursuant to 28 U.S.C. § 1782 to serve a subpoena on Cravath—Shell’s U.S.-based law firm—to obtain discovery for use in her then-contemplated proceedings in the Netherlands against Royal Dutch Shell. As defense counsel for Shell during the litigation proceedings that took place in the United States, Cravath retained custody of documents and deposition transcripts that were produced during the course of that litigation—documents that would be critical to Ms. Kiobel’s ability to bring successful claims in the Netherlands.
In an order from the bench during oral argument, Judge Alvin K. Hellerstein granted Ms. Kiobel’s petition to obtain the documents for use in her Dutch proceeding, pursuant to working out the terms of a confidentiality order.
2017
After the parties negotiated a confidentiality order to govern the exchange of documents, and Judge Hellerstein formally issued an opinion and order granting Kiobel leave to subpoena Cravath and ordering Cravath to produce documents, Cravath decided to appeal Judge Hellerstein’s decision.
Judge Hellerstein agreed to stay production of the documents pending outcome on appeal at the Court of Appeals for the Second Circuit.
On July 10, a three-judge panel of the Second Circuit Court of Appeals blocked a lower court’s decision to allow Ms. Kiobel to use the evidence from the U.S. case in her lawsuit against Shell in the Netherlands.
On July 24, we filed a petition for rehearing.
On November 28, we filed a petition for certiorari with the Supreme Court, seeking to overturn a decision that prevents Esther Kiobel from using the evidence from years of U.S. litigation to seek justice in the Netherlands.
In January, the Supreme Court denied our cert petition.
Documents
Writ of Summons (the Netherlands Case)
Kiobel Petition for Leave to Issue Subpoena
Cravath Opposition to Kiobel Petition
Kiobel Reply in Support of Petition
Kiobel Memorandum of Law in Support of Petition
District Court Order and Opinion Granting Petition
District Court Decision- Order for Stay Pending Appeal
Cravath Appeals Brief
Amicus Brief in Support of Cravath
Amicus Brief in Support of Cravath (Appellate Court)
Kiobel Appeals Response Brief
Cravath Appeals Reply Brief
Petition for Rehearing
Kiobel Cert Petition
Kiobel Cert Petition Appendix
