Cert. Watch: Kiobel v. Cravath
Posted on November 29, 2018
I’m keeping an eye on the new cert. petition in Kiobel v. Cravath, Swaine & Moore LLP. This was the case where a plaintiff had sought to use § 1782 to obtain documents from its opponent’s (Royal Dutch Shell’s) US law firm (Cravath) that had previously been produced, for use in US litigation, subject to a protective order. She sought the documents for use in Dutch litigation. The district court had allowed the application, but the Second Circuit reversed, holding that the lower court had abused its discretion. As I highlighted in my prior post, the key to the Second Circuit’s decision (which I criticized) seems to be that the Dutch court might not treat the documents as confidential and that Shell, Cravath’s client, might be deprived of the benefits of the protective order—there was also an issue about the role of discoverability under the foreign law under § 1782. This seems poorly reasoned to me for reasons I gave in the prior post. And it is pretty unusual, maybe unprecedented, for a court of appeals to hold that a decision granting a § 1782 application was an abuse of discretion (decisions holding that a lower court erred in granting an application because the statute was not applicable are common).
That said, I (a non-specialist, to be sure) am not sure that the case is really “cert-worthy” using the Supreme Court’s ordinary criteria. I am also a little concerned at the way Kiobel has framed the question presented, focusing solely on the discoverability of the documents under foreign law. Time will tell.