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Kiobel v Shell lawyers hearing 12 Sept 2017

Andrew Denney, New York Law Journal: September 12, 2017

Forcing Cravath, Swaine & Moore to hand over documents related to litigation against Royal Dutch Shell to a plaintiff seeking redress in Dutch courts would give rise to “discovery litigation tourism,” an attorney for the firm said Tuesday in arguments before a federal appeals court.

Esther Kiobel, who was unsuccessful in her effort to hold Shell liable in American courts for the 1995 execution death of her husband and eight others under the Alien Tort Statute, has taken her fight to the courts in the Netherlands.

Cravath is challenging a January ruling by U.S. District Judge Alvin Hellerstein of the Southern District of New York ordering the firm to turn over files that Shell provided to it during litigation over Kiobel’s class action suit, which lasted about 11 years.

The firm contends Shell could not maintain an expectation of confidentiality if Hellerstein is upheld in Kiobel v. Cravath, Swaine & Moore, 17-cv-7992.

Amnesty International, while not a party in the case, has said Shell was complicit in the deaths of the “Ogoni Nine” and last week called out Cravath in a news release emphasizing that the firm refuses to hand over the records.

But Cravath is backed by a group of amici parties concerned about the broader implications of requiring Cravath to turn over the documents. They are the New York City Bar Association, the National Association of Manufacturers, the Association of Corporate Counsel and the U.S. Chamber of Commerce.

The documents are under a protective order, which Hogan Lovells partner Neal Katyal, a former acting U.S. solicitor general who appears for Cravath in its appeal, called “iron clad” during oral arguments before a panel of the U.S. Court of Appeals for the Second Circuit.

“No case has ever accepted the idea that by turning documents over in a sealed communication channel that you can go after the lawyer,” Katyal said. During his arguments, Katyal repeatedly referenced a case cited in Shell’s appellate papers, Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, in which a Second Circuit panel found in 2003 for a plaintiff seeking documents that Ernst & Young turned over to Davis Polk as part of a separate investigation by the U.S. Securities and Exchange Commission.

Judge Richard Wesley, who signed the ruling in Ratliff, was one of the judges on the panel for oral arguments in Kiobel on Tuesday.

During arguments by Marco Simons of EarthRights International, who represents Kiobel, Judge Jose Cabranes questioned why the plaintiffs are attempting to obtain the records from Shell through U.S. courts.

“You can get the documents presumably in the Netherlands, right?” Cabranes said.

Simons said the Dutch court does not have the ability to order production of the documents, and it would be more efficient to obtain them from Cravath in New York.

During an exchange between Simons and Judge Dennis Jacobs, the judge expressed concern about possible “abuse” of Section 1782, which allows parties in courts outside the United States to apply to an American for evidence that would be used in a foreign proceeding.

“It looks as though it can develop into an abuse,” Jacobs said.

Simons responded that the adversarial system and discretionary review by district judges would “weed out” abusive requests.

“If that starts to happen, the courts will deal with it,” Simons said, noting that the Second Circuit has never overturned a discretionary order by a district court under Section 1782 and that it “shouldn’t start now.”

Kiobel’s effort in American courts to hold Shell liable under the ATS made it to the U.S. Supreme Court, which ruled in 2013 that the particular matter was beyond its jurisdiction, but did not explicitly state if it thinks that ATS applies to corporations.

However, the high court will take up that question again next month. On Oct. 11, it is set to hear oral arguments in Jesner v. Arab Bank, No. 16-499, in which victims of terror attacks conducted in Israel and Palestine seek to hold the Jordan-based Arab Bank liable under the ATS for funding the mayhem.

In addition to Katyal, the legal team representing Cravath includes Hogan Lovells partner Jennifer Ellsworth and senior associates Sean Marotta and Eugene Sokoloff; and Cravath partner Lauren Moskowitz.

Kiobel’s legal team also includes EarthRights International attorneys Alison Borochoff-Porte and Richard Herz.


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