July 10, 2018, New York, NY — Five years after the U.S. Supreme Court ruled that Esther Kiobel—the widow of an executed Nigerian environmental activist—could not sue Shell in U.S. courts for its role in her husband’s death and other abuses, a three-judge panel of the Second Circuit Court of Appeals has now 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.
In the prior U.S. litigation, dozens of witnesses testified and over 100,000 pages of relevant documents were gathered. But the court denied Ms. Kiobel access to this evidence for her Dutch lawsuit—even though it was the same evidence she had previously had access to for her claims against Shell.
Ms. Kiobel sought the documents from Cravath, Swaine & Moore, LLP, Shell’s New York-based law firm, which has warehoused the documents for the past five years. Departing from prior court opinions holding that documents received no special protection simply because they were held by a law firm, the Second Circuit ruled that the documents were protected because Shell had given them to its lawyers.
In October 2016, EarthRights International filed a petition for documents on Ms. Kiobel’s behalf under the Foreign Legal Assistance Statute (28 U.S.C. § 1782), to obtain the documents that Ms. Kiobel previously had access to during the course of her lawsuit against Shell in the United States. One of the main aims of the statute is for U.S. courts to provide an efficient means of assistance to participants in foreign litigation. And in January 2017, a federal district court granted Ms. Kiobel’s petition, reasoning in part that the documents might otherwise be unobtainable absent use of the Foreign Legal Assistance Statute. Cravath appealed to the Second Circuit.
EarthRights International and Prakken D’Oliveira, Ms. Kiobel’s Dutch lawyers, are now evaluating options for rehearing the case in the U.S. as well as obtaining the documents through the Dutch courts.
The case is Kiobel v. Cravath, Swain & Moore LLP, No. 17-424-cv.
“I have been fighting, without equal power, against one of the largest oil companies in the world for a very long time. I am used to setbacks through the U.S. courts. And to Shell doing whatever it can to stop the truth from being told. Now, I am told again that justice is not available through the U.S., but I will continue to fight against Shell through my lawyers in the Netherlands to hold them accountable for the death of my husband.”
-Esther Kiobel, Petitioner
“We are disappointed by the court’s refusal to release the documents, which would have been the most simple and efficient way for us to ensure a proper administration of justice. We will now turn to using less efficient Dutch procedures to obtain the evidence, which delays the process.”
-Channa Samkalden, Attorney for Esther Kiobel in the Netherlands, Prakken d’Oliveira Human Rights Lawyers
“This is an unfortunate decision. After the evidence had been developed in this human rights case, the Supreme Court decided that Ms. Kiobel could not pursue her claims against Shell in the United States. So Ms. Kiobel sued Shell in the Netherlands. Congress passed a statute to deal with precisely this kind of circumstance, where evidence in the U.S. could assist with litigation in other countries. But now the Second Circuit has also blocked Ms. Kiobel from using that evidence in her Dutch lawsuit.”
-Marco Simons, General Counsel, EarthRights International
In 2002, Esther Kiobel and eleven other Nigerian plaintiffs filed a lawsuit in New York, alleging that Shell aided and abetted the Nigerian military dictatorship’s commission of violent human rights violations against members of a peaceful grassroots movement in the Ogoni region of Nigeria. The movement fought for Shell to clean up lands devastated by its oil operations in the Niger Delta—devastation that the United Nations Environmental Program has said will likely take up to thirty years to remediate. The human rights violations included torture or cruel, inhuman, and degrading treatment, arbitrary arrest and detention, forced exile, and involvement in a deeply unfair trial that ultimately led to the military trial and extrajudicial killing of Ms. Kiobel’s husband, Dr. Barinem Kiobel, and eight other men, including world renowned author and activist, Ken Saro-Wiwa.
In 2010, the Second Circuit rejected Ms. Kiobel’s claims, using a line of reasoning that other federal appellate courts have since rejected. (The Second Circuit held that that corporations like Shell could not be sued for violations of international law under the Alien Tort Statute—the law Ms. Kiobel brought her claims under. That issue is now before the Supreme Court in Jesner v. Arab Bank.) Ms. Kiobel appealed her case to the Supreme Court, but in 2013, the Court dismissed the case in another widely criticized decision.
Denied an opportunity to present the large volume of evidence she had gathered during the course of the case, and unable to pursue her claims any further in the U.S., Ms. Kiobel, along with three other widows, decided to file a new lawsuit in the Netherlands against Shell for the same tortious conduct at issue in her U.S. suit. But a protective order prevented Ms. Kiobel from accessing the documents and evidence she previously obtained during her U.S. proceedings for use in Netherlands, where there are additional barriers to obtaining the documents.
Under the Foreign Legal Assistance Statute (28 U.S.C. § 1782), EarthRights International filed a petition on behalf of Ms. Kiobel to obtain the documents from Cravath, Swaine, & Moore, LLP, Shell’s New York-based law firm, which represented Shell during Ms. Kiobel’s U.S. proceedings. The Foreign Legal Assistance Statute contemplates and allows for transferring evidence from the U.S. to assist with cases abroad. It happens routinely, and ERI has successfully used the Statute to obtain information housed in the U.S., including for protestors of a gold mine in Peru and Maasai communities in Tanzania. In January, in a decision that sided with Ms. Kiobel on every point of law, Judge Alvin K. Hellerstein of the Southern District of New York ordered Cravath to produce the documents.
Cravath—which posted profits-per-partner at $3,555,000 in 2016—appealed the decision, and brought on another top corporate law firm to represent them, while appointing the former Acting Solicitor General of the United States as lead counsel.
EarthRights International represented plaintiffs in another case against Shell arising from the same facts, Wiwa v. Royal Dutch Petroleum, which settled for $15.5 million in 2009. Although the U.S. courts have failed Ms. Kiobel once again, EarthRights International will continue to closely follow her case in the Netherlands, and her story of persistence.