Our most promising new strategy uses the Foreign Legal Assistance (FLA) statute to assist public interest lawyers in other countries with their cases. Under this statute (28 U.S.C. § 1782), “interested parties” may ask a U.S. federal court to obtain documents and testimony from people or companies located in the U.S. when that information is relevant to a foreign legal proceeding. We’ve brought FLA actions against several U.S. corporations to seek and acquire evidence for use in human rights cases abroad.
While the post-Kiobel world has seen several disappointing decisions that make it more difficult for victims of human rights abuses to seek justice for corporate complicity, there are still bright spots in the U.S. courts. This strategy assists public interest lawyers in other countries in obtaining information that may be useful for their proceedings against a corporation. Under this statute, “interested parties” to an action in a foreign domestic proceeding can ask a federal court to obtain documents and testimony from people or companies located in the U.S. who may have relevant information.
Corporations or individuals in the United States sometimes have information that is useful or necessary to a case in a court or tribunal outside the United States. Section 1782, a U.S. law, allows those with an interest in the case to obtain that information.
A section 1782 request is a request to a federal court in the United States. It asks the court to help a foreign court, or a participant in a foreign legal case, to obtain information that can be used in a legal case in another country. The process of obtaining information is known as “discovery.” The foreign legal case can be either ongoing or under preparation. The discovery can be in the form of testimony, documents, or physical evidence. While section 1782 assistance is often granted, the U.S. court is not required to comply with a section 1782 request. This means that even if all the legal requirements for the request are met, the judge may still reject it.
In the past, getting information through FLA requests has been done mostly by multinational corporations – in fact, more FLA cases have been filed by Chevron than by anyone else! EarthRIghts works with local lawyers throughout the world to make this tool available to them so that victims have the same access to legal remedies as multinational corporations and other powerful actors.
To spread the word about this potentially useful tool, EarthRights has created this FLA guide (also available in Spanish) which informs communities, foreign lawyers, and other organizations about the existence, availability, and benefits of this strategy. The guide gives an overview of what the statute is, how it could be helpful to foreign domestic human rights lawyers, and answers frequently asked questions. We’ve already had tremendous interest in this strategy from many partners, so we’re trying to spread the word!
In 2002, Esther Kiobel, wife of Dr. Barinem Kiobel (one of the Ogoni Nine leaders who was executed in 1995) filed a class-action lawsuit against Royal Dutch Shell under the Alien Tort Statute in federal court in the Southern District of New York.
After her case was ultimately dismissed for jurisdictional reasons by the U.S. Supreme Court in 2013, Esther Kiobel filed a civil action in the Netherlands—home of Royal Dutch Shell—based on the same claims in 2017. 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.
In order to assist in re-obtaining these documents, EarthRights 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.
In November 2011, protestors convened at the site of the proposed Conga mine project in Cajamarca, Peru. Police officers contracted by Minera Yanacocha responded to the protestors with violence. An estimated 24 civilians were injured, including Elmer Eduardo Campos Álvarez, who was shot in the back, lost a kidney and his spleen, and became paralyzed.
Mr. Campos pursued a criminal case in Peru against two commanding police officers and against Minera Yanacocha as a third-party defendant. On January 22, 2014, EarthRights, on behalf of Mr. Campos, brought an application for discovery in the District Court of Colorado. In March 2015, Mr. Campos’s petition was granted and he received over 500 documents, photos, and videos about the November 2011 protest and Minera Yanacocha’s security operations.
After a lengthy criminal investigation, a prosecutor formally charged two commanding officers for Mr. Campos’s injuries in February 2016. Since then, Mr. Campos has also successfully added Minera Yanacocha as a third-party defendant because of its contract with the police during the protest. Trials for the criminal proceeding will commence in 2018.
When Maasai villagers in Tanzania accused a Massachusetts-based safari company of land-grabbing and violence, we filed an FLA action to obtain documents and testimony from the company. The Federal District Court in Massachusetts Granted our FLA Application and ordered the company to hand over relevant evidence and sit for depositions. The villagers in Tanzania have subsequently used this evidence to press their case against the company and its affiliates in Tanzania.
The dispute with Thomson began in 2006 when 12,617 acres of ancestral land traditionally used for grazing and farming were sold to the owners of Thomson Safari without their consent. After the sale, the company renamed the land Enashiva and branded it as a luxurious “private nature refuge.”