Extraordinary decision by U.S. Appeals Court in Kiobel v Royal Dutch Shell litigation

By John Donovan

The United States Court of Appeals for the Second Circuit has refused to reconsider its extraordinary decision barring a Nigerian activist widow Esther Kiobel, from obtaining Royal Dutch Shell discovery documents from a U.S. case, held by Cravath Swaine & Moore LLP, for litigation she is pursuing against the oil and gas giant in the Dutch courts.

Her husband, Dr. Barinem Kiobel, was one of the “Ogoni 9,” executed by the then Nigerian military regime on false charges. Esther Kiobel holds Shell complicit in his hanging.

The decision made on Thursday reverses an order given by a U.S. federal judge that the 100,000 plus documents gathered in earlier abortive litigation by Esther Kiobel against Shell, and since then held in a secure warehouse in the USA, should be handed over.

The Dutch litigation commenced in June 2017.

Cravath Swaine & Moore LLP acted for Shell in the earlier litigation and Shell remains their client.

A glance through Doc 164 is very enlightening. The content suggests to me that the Court of Appeal decision is flawed to an extent that makes me wonder what is going on. Have a quick read ands see if you agree. What we do know from earlier submissions in the case is that thousands of U.S. lawyers and businesses have lined up on the side of withholding Shell’s discovery documents from the Dutch Courts.

Appeal Court Documents

Doc 164: 38 Pages: PETITIONER-APPELLEE ESTHER KIOBEL’S PETITION FOR REHEARING AND/OR REHEARING EN: 25 July 2018. On Appeal from the United States District Court for the Southern District of New York Case No. 1:16-cv-07992 (AKH). The Honorable Alvin K. Hellerstein.

Doc 169: One page. 10 August 2018. Order.

Doc 172 Combined: 26 Pages. 20 August 2018. PETITIONER-APPELLEE ESTHER KIOBEL’S MOTION TO ACCEPT HER RULE 28(j) LETTER FOR FILING

Doc 176: One page. Dated 30 August 2018. Appellee, Esther Kiobel, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc. IT IS HEREBY ORDERED that the petition is denied.

Doc 178: One page. IT IS HEREBY ORDERED that Appellee’s motion to accept her FRAP 28(j) letter is DENIED as moot in light of the order denying the petition for rehearing en banc.

Doc 178 & Kiobel doc 179 Combined: 16 pages: MOTION ORDER, denying as moot motion to file document [172] filed by Appellee Esther Kiobel, FILED. [2379532][178] [17-424] [Entered: 08/30/2018 04:04 PM ]UDGMENT MANDATE, ISSUED.[2383368] [17-424] [Entered: 09/06/2018 01:15 PM]

 

Disclosure by the author of this article: The lead claimant Esther Kiobel, her lawyer Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira representing the widows, and the acclaimed human rights organisation Amnesty International, have all acknowledged the involvement of John Donovan in bringing *this case. (*See Writ of Summons in English and Dutch served on Shell 28 June 2017 – copy obtained from US Pacer public electronic court records)

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