Today, EarthRights International (ERI) argued in front of the U.S. Court of Appeals for the Second Circuit in New York that documents and other evidence from human rights cases in the United States should be available to assist with similar litigation in the Netherlands. Esther Kiobel sued Royal Dutch Shell for more than 10 years in the U.S. over allegations that the oil company was complicit in the summary execution of her husband in Nigeria. The Supreme Court dismissed her case in 2013, and now she seeks to use the evidence from that case in a new lawsuit in Dutch court.
The evidence is now in the hands of Shell’s New York-based law firm, Cravath, Swaine, & Moore LLP. U.S. law generally allows such evidence to be used to assist with foreign litigation, but Cravath has resisted turning the materials over – despite the fact that it is the same evidence that Ms. Kiobel had access to during her U.S. lawsuit.
“This should be a routine case,” said Marco Simons, ERI’s General Counsel who argued the case at the Second Circuit. “We regularly obtain documents in the U.S. to use in litigation in other countries, and that’s what the law allows. The only thing unusual here is the stridency of Cravath’s opposition to turning over this evidence.”
For the past 20 years, ERI has worked with Ogoni communities from Nigeria to demand accountability for Shell’s complicity in human rights abuses against non-violent activists, including the Ogoni Nine, a group of activists that were summarily executed in 1995. Ms. Kiobel’s late husband, Dr. Barinem Kiobel, was one of the Ogoni Nine, and she has spent the better part of two decades seeking justice from Shell.
On behalf of Ms. Kiobel, ERI filed a petition for the evidence in New York federal court last year. The district court ordered Cravath to produce the documents, but Cravath appealed that order. In June of this year, Ms. Kiobel went ahead and started a new lawsuit against Shell in the Netherlands. She is represented by the Dutch firm of Prakken D’Oliveira in that case.
EarthRights International Statement
"Discovery of Shell's lawyers' (Cravath's) documents is appropriate here because there are barriers to obtaining those documents from Shell in the Netherlands. The aim of 1782 is to promote efficiency and the statute is designed to avoid these extra steps. Assisting the Dutch litigation is exactly what this law is intended to do."
- Marco Simons, ERI General Counsel
In 1995, nine men were hanged by the Nigerian military government, following deeply unfair trials that were widely condemned by the international community. Their deaths were the culmination of the military’s bloody campaign to crush community protests against environmental devastation caused by the oil giant Shell in the oil-rich territory of the Ogoni people in the Niger Delta. This campaign included killings, torture and rape, and victims alleged that Shell was complicit in this violence.
After the arrests of the Ogoni Nine, as they became known, at least two prosecution witnesses came forward to say that they had been bribed by the government to incriminate the accused in the murder of four Ogoni chiefs. According to these witnesses, the bribes included offers of jobs at Shell.
Many victims, including Esther Kiobel, fled Nigeria shortly after these events. Several of them filed lawsuits against Shell in the United States, including Wiwa v. Royal Dutch Petroleum, which settled for $15.5 million just before trial in 2009, and Kiobel v. Royal Dutch Petroleum, which was dismissed by the U.S. Supreme Court in 2013.
The plaintiffs in the Kiobel case, including Esther Kiobel, never had a chance to present their evidence that Shell was responsible for the abuses. In June 2017, Ms. Kiobel, along with three other widows of the Ogoni Nine, initiated a new lawsuit against the company in the Netherlands. The Dutch courts may be her last hope of obtaining justice.