Cravath Defeats Order to Hand Over Shell Docs for Dutch Case

By Michael Greene

Cravath, Swaine & Moore LLP doesn’t have to hand over Royal Dutch Shell’s documents to a woman who is suing the company in the Netherlands, a federal appeals court ruled July 10.

Esther Kiobel had sought documents that Cravath obtained while defending Shell in a U.S. lawsuit that involved similar allegations. That case, which was also brought by Kiobel, was ultimately dismissed by the U.S. Supreme Court for lack of jurisdiction.

“An order compelling American counsel to deliver documents that would not be discoverable abroad, and that are in counsel’s hands solely because they were sent to the United States for the purpose of American litigation, would jeopardize ‘the policy of promoting open communications between lawyers and their clients,’” Circuit Judge Dennis Jacobs, of the U.S. Court of Appeals for the Second Circuit, said.

“Suing a U.S. law firm should not be a back door to secure documents from foreign clients, who are outside of US jurisdictional boundaries,” a spokesperson for The Shell Petroleum Development Company of Nigeria Ltd. told Bloomberg Law in an email. The case involved unusual circumstances, but It’s an unfortunate ruling, Marco Simons, General Counsel at EarthRights International who represented Kiobel, told Bloomberg Law.

The Supreme Court decided that Kiobel shouldn’t be litigating her claims in the United States, and now the Second Circuit is deciding that U.S. courts aren’t going to give her any assistance in litigating her claims in the Netherlands, he said. Essentially she has to start over from scratch in building her case.

The decision sends the message that victims of human right abuses can neither litigate their cases in the U.S. nor rely on U.S. courts to help them litigate their cases in other countries, he said.

Protecting Attorney-Client Communication

In the U.S. case Kiobel was seeking to hold Shell liable for the 1995 execution of her husband by Nigeria’s military government. She claimed that several individuals affiliated with Shell were complicit.

The U.S. case lasted about 11 years before it was ultimately dismissed in 2013 by the Supreme Court for lack of jurisdiction.While the U.S. case was pending, Shell provided Cravath with a large volume of documents for the purpose of responding to discovery requests.

The discovery materials were subject to a confidentiality order that Kiobel signed. Most of documents produced by Shell were designated as “confidential,” and could only be used for the then-pending U.S. litigation, the Second Circuit said.

Kiobel later filed a lawsuit in Dutch court advancing the same allegations that were made in the U.S. case. She sought to use discovery from her American litigation to support her Dutch lawsuit.

A district court judge in 2016 ruled that Kiobel was entitled to use the Shell documents under a federal statute—28 U.S.C. §1782— which says district courts can assist a party in obtaining evidence for use in a foreign proceeding.

“[T]he district court’s ruling would undermine confidence in protective orders,” Jacobs said.

“It is perilous to override the confidentially order” because doing so would deter foreign companies from giving their U.S. law firms documents, he said

In order to avoid disclosure issues, U.S laws firms may be forced to store their foreign clients’ documents abroad, which could result in excessive costs, the court said.

Additionally, U.S. law firms may be harmed if they destroy documents as soon as foreign client’s proceeding is completed, because they might need such information to protect themselves from accusations of wrongful conduct, he said. “Or foreign entities may simply be less willing to engage with U.S. law firms.”

Litigants shouldn’t be able to get documents from lawyers that they otherwise couldn’t get from the parties themselves, Mary Blatch, Associate General Counsel & Director of Advocacy at the Association of Corporate Counsel, told Bloomberg Law. The ACC, the U.S. Chamber of Commerce, and the National Association of Manufacturers filed an amicus brief in the case supporting a reversal.

The case reinforces the importance of confidentiality orders, and protects the sanctity of attorney-client confidentiality, she said.

The ruling was made by three-judge panel that also included Judges José A. Cabranes and Richard C. Wesley.

The case is Kiobel v. Cravath, Swain & Moore, LLP , 2d Cir., 17-424-CV, 7/10/18 .

To contact the reporter on this story: Michael Greene in Washington at mgreene@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

 

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