Case of the Day: In re Kiobel

The case of the day is In re Kiobel (S.D.N.Y. 2017). Esther Kiobel was the plaintiff in the now-famous Kiobel case, a class action against Royal Dutch Shell and others under the Alien Tort Statute, claiming that Shell was liable for human rights violations committed by the Nigerian government against her and others in Nigeria who had opposed Shell’s activities in Nigeria. The case led to a Second Circuit decision holding that corporations cannot be liable for torts in violations of international law under the ATS, and it culminated in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), which affirmed on different grounds, holding that the presumption against extraterritoriality applied to the ATS. The result was that Kiobel could not pursue her claims in the US courts. As we’ll see in today’s case, her new plan is to seek relief in a proceeding in the Netherlands. To obtain evidence for use in that prospective case, Kiobel brought a § 1782 application seeking leave to serve subpoenas on Cravath, Swaine & Moore LLP, lawyers for Shell in the earlier US case and some related US proceedings.

The statutory prerequisites were met. Cravath argued that although it resides in New York, it was not the real party from whom Kiobel sought discovery. This, of course, is beside the point. The question, in discovery, is whether Cravath has the responsive information in its possession, custody, or control. The judge properly rejected Cravath’s challenge on this point.

The Dutch action was within reasonable contemplation, which is all that the statute requires. Kiobel demonstrated that her lawyers had drafted the writ of summons, applied for legal aid on her behalf, and sent “liability letters” to Shell, which under Dutch law toll the statute of limitations. She also argued that under Dutch law, it’s necessary to present a certain amount of evidence when the action begins, and thus that the § 1782 application itself was evidence that the Dutch action was in reasonable contemplation.

On the discretionary factors, Cravath pointed again to the fact that Shell, a party to the proposed Dutch litigation, was the true target of the discovery. Fair enough. But the judge reasoned that the question isn’t just whether the target of the § 1782 application a party to the foreign proceeding. The question is also whether, even assuming the target is a party, there is some means to obtain the information via the procedures available in the foreign court. Kiobel could make the showing here because, under Dutch practice, she needed some discovery even before beginning the Dutch proceeding, and because some documents, e.g., deposition transcripts, might not be in the possession of Shell even if they would be in Shell’s “control” as that term is understood in US pretrial discovery.

On receptivity, Cravath pointed to the Netherland’s amicus brief when the case was before the US Supreme Court. The brief asserted that the US courts should not hear the case, noting among other things that the plaintiffs might have broader rights to discovery under US law than they would under Dutch law. But the judge noted that the question of receptivity is whether there is some authoritative proof that the foreign tribunal would reject evidence gathered via § 1782. Cravath could not make that stringent showing.

The circumvention and burdensomeness factors also weighed in favor of the application, so subject to an arrangement about confidentiality, the judge granted it.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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