02/13/17 Page 1 of 18 - Royal Dutch Shell Plc .com€¦ · Case 1:16-cv-07992-AKH Document 24 Filed...

Case 1:16-cv-07992-AKH Document 24 Filed 02/13/17 of 18

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

Petitioner,No. 1:16-cv-07992 (AKH)

IN RE PETITION OF ESTHER KlOBEL,

For an Order Granting Leave to Issue Subpoenas toCravath, Swaine & Moore LLP for Production ofDocuments Pursuant to 28 U.S.C. § 1782

MEMORANDUM OF LAW IN SUPPORT OF CRA VATH, SWAINE &MOORE LLP'S MOTION TO STAY THE COURT'S ORDER GRANTING

PETITIONER ESTHER KIOBEL LEAVE TO ISSUE A SUBPOENAPURSUANT TO 28 U.S.C. § 1782

CRA VATH, SWAINE & MOORE LLPWorldwide Plaza

825 Eighth AvenueNew York, NY 10019

(212) 474-1000

Attorneys for Respondent Cravath, Swaine &MooreLLP

February 13,2017


TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iii

CITATION CONVENTIONS v

PRELIMINARY STATEMENT 1

LEGAL STANDARD 2

ARGUMENT 3

1. Cravath Will Be Irreparably Harmed If the Court's Order Is Not StayedPending Appeal. .4

II. Petitioner Will Suffer No Injury If She Receives Shell's DocumentsFollowing Appeal. 6

III. The Public Has No Interest in Cravath Producing Shell's Documents Priorto the Completion of Appellate Proceedings 7

IV. Cravath Is Likely to Succeed on Appeal... 9

CONCLUSION 13

11


TABLE OF AUTHORITIES

Page(s)Cases

In re Accent Delight Int'l,No. 16-3655 (2d Cir. 2016) 2

In re Application of Chevron Corp.,709 F. Supp. 2d 283 (S.D.N.Y. 2010), denial of stay rev'd, No. 10-1918(2d. Cir 2010) 3, 9

In re Application of Chevron Corp.,No. 10-1918 (2d Cir. 2010) 3

In re Application of Schmitz,259 F. Supp. 2d 294 (S.D.N.Y. 2003), aff'd sub nom. Schmitz v. BernsteinLiebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004) 10

In re Bank of Cyprus Public Co. Ltd.,No. 10 Misc. 23,2011 WL 223168 (S.D.N.Y. Jan. 21, 2011) .11

Certain Funds, Accounts and/or Inv. Vehicles v. KPMG LLP,798 F.3d 113 (2d Cir. 2015) 8, 12

Chevron Corp. v. Berlinger,629 F.3d 297 (2d Cir. 2011) 2

Intel Corp. v. Advanced Micro Devices,542 U.S. 241 (2004) 5, 12

Jock v. Sterling Jewelers, Inc.,738 F. Supp. 2d 445 (S.D.N.Y. 2010) 9

Kiobel v. Royal Dutch Petroleum Co.,133 S. Ct. 1659 (2013) 1,7,8

LaRouche v. Kezer,20 F.3d 68 (2d Cir. 1994) 9

In re Mare Shipping Inc.,No. 13 Misc. 238, 2013 WL 5761104 (S.D.N.Y. Oct. 23,2013), aff'd subnom. Mare Shipping Inc. v. Squire Sanders (US) LLP, 574 F. App'x 6(2d Cir. 2014) 11

Mohammed v. Reno,309 F.3d 95 (2d Cir. 2002) 3

111


In re Application Pursuant to 28 u.s. C. § 1782 of Okean B. V & Logistic Sol.Int'l to Take Discovery of Chadbourne & Parke LLP,60 F. Supp. 3d 419 (S.D.N.Y. 2014) .11

Ratliff v. Davis Polk & Wardwell,354 F.3d 165 (2d Cir. 2003) 5, 6, 9

Schmitz v. Bernstein Liebhard & Lifshitz, LLP,376 F.3d 79 (2d Cir. 2004) 10, 11, 12

Tom Doherty Assocs., Inc. v. Saban Entm 't, Inc.,60 F.3d 27 (2d Cir. 1995) 5

In re World Trade Ctr. Disaster Site Litig.,503 F.3d 167 (2d Cir. 2007) 3, 9

Statutes & Rules

28 U.S.c. § 1782 passim

Fed. R. App. P. 8(a)(I)(A) 2

IV


CITATION CONVENTIONS

Parties and Entities

"Petitioner": Esther Kiobel

"Cravath": Cravath, Swaine & Moore LLP

"Shell": Royal Dutch Shell plc and certain predecessors and non-U.S. affiliates of Royal DutchShell pic

Pleadings and Orders

"Joint Letter": Joint Letter from the Parties, dated January 18, 2017 (Dkt. No. 19)

"Moskowitz 1113/16 Decl.": Declaration of Lauren A. Moskowitz in Opposition to the Petitionof Esther Kiobel, Pursuant to 28 U.S.C. § 1782, for Leave to Issue Subpoenas to Cravath, Swaine& Moore LLP for the Production of Documents for Use in a Foreign Proceeding, datedNovember 3,2016 (Dkt. No.8)

"Moskowitz 2/13/17 Decl.": Declaration of Lauren A. Moskowitz in Support of Cravath,Swaine & Moore LLP's Motion to Stay the Court's Order Granting Petitioner Esther KiobelLeave to Issue a Subpoena Pursuant to 28 U.S.C. § 1782, dated February 13,2017

"Order": Opinion and Order Granting Petition, dated January 24,2017 (Dkt. No. 21)

"Petition": Petition of Esther Kiobel, Pursuant to 28 U.S.C. § 1782, for Leave to IssueSubpoenas to Cravath, Swaine & Moore LLP for the Production of Documents for Use in aForeign Proceeding, dated October 18, 2016 (Dkt. No.3)

"Protective Order": Stipulation and Order Regarding Confidentiality of Discovery Materials,dated January 24,2017 (Dkt. No. 20)

"Samkalden 10/4/16 Decl.": Declaration of Channa Samkalden, Attorney-at-law in theNetherlands, dated October 4,2016 (Dkt. No. 4-4)

"Samkalden 11114/16 Decl.": Reply Declaration of Channa Samkalden, Attorney-at-law in theNetherlands, dated November 14,2016 (Dkt. No. 10-2)

Terms

"Kiobel": Kiobel v. Royal Dutch Petroleum Co., No. 02-CV-7618 (S.D.N.Y.)

"Wiwa": Wiwa v. Royal Dutch Petroleum Co., No. 96-CV-8386 (S.D.N.Y.), Wiwa v. BrianAnderson, No. 01-CV-1909 (S.D.N.Y.), and Wiwa v. Shell Petroleum Development Corp. ofNigeria, No. 04-CV-2665 (S.D.N.Y.)

v


Respondent Cravath, Swaine & Moore LLP ("Cravath") respectfully submits this

Memorandum of Law in support of its motion to stay the Court's January 24, 2017 Order

granting Petitioner Esther Kiobel ("Petitioner") leave to issue a subpoena on Cravath pursuant to

28 U.S.c. § 1782 for the production of documents belonging to Royal Dutch Shell plc and

certain predecessors and non-U.S. affiliates of Royal Dutch Shell plc (collectively, "Shell"),

Cravath's client (Dkt. No. 21) (the "Order").

PRELIMINARY STATEMENT

Pursuant to the Court's Order, Petitioner has requested production from Cravath

of confidential documents belonging to Shell that were previously produced in litigation that the

U.S. Supreme Court dismissed for lack of jurisdiction in 2013.' Kiobel v. Royal Dutch

Petroleum Co., 133 S. Ct. 1659, 1669 (2013). Prior to that now-dismissed lawsuit, the

documents at issue had no connection to the United States. They were collected abroad from

Shell and its foreign subsidiaries solely by reason of court-ordered discovery obligations in the

prior litigation. Indeed, in one instance, counsel from Cravath were instructed to travel to

Nigeria personally to search for and to collect documents from a Shell subsidiary for production

in New York. (See, e.g., Moskowitz 2/13/17 Decl. Ex. C, Conference Tr., dated Nov. 25, 2002,

at 18: 14-20.) But for the order of the district court in the prior litigation, which had no

jurisdiction, the documents at issue never would have been located in the United States. This use

of Section 1782 raises important issues of first impression before the Second Circuit, including

the appropriateness of Section 1782 discovery of a foreign entity's documents through its U.S.

, On January 24,2017, the Court issued its Order, granting Petitioner leave to serve asubpoena and directing Cravath to produce Shell's documents by February 27, 2017. (Dkt.No. 21.) Cravath accepted service of Petitioner's request for production on January 27,2017.(Moskowitz 2/13/17 Decl. ~ 2, Ex. B.)


law firm where the foreign entity is the proposed defendant in the foreign proceeding and where

the foreign documents are located in the United States only as the result of a court order in a case

in which the U.S. Supreme Court has held that there was no jurisdiction in the district court.

On February 13,2017, Cravath filed a notice of appeal of the Court's order

granting the Petition. By this motion, Cravath respectfully requests that the Court stay its Order

until after appellate proceedings conclude. Forcing Cravath to produce Shell's documents now,

prior to being heard by the Second Circuit, will effectively moot Cravath's ability to appeal those

issues. Petitioner has offered no reason why she would be harmed if she does not receive these

documents immediately. Petitioner has waited more than twenty years since the alleged conduct

underlying the Dutch claims occurred and nearly four years since the U.S. Supreme Court

dismissed the U.S. claims for lack of jurisdiction. It is simply not credible for Petitioner to assert

that she cannot wait until after appellate proceedings to receive the requested documents.

Although Petitioner has asserted no basis for urgent production, Cravath is willing to proceed on

any expedited briefing agreeable to Petitioner and acceptable to the Second Circuit. Cravath also

is willing to expedite briefing on the instant motion to stay.

LEGAL STANDARD

An order granting an application under Section 1782 is immediately appealable.

See, e.g., Chevron Corp. v. Berlinger, 629 F .3d 297, 306 (2d Cir. 2011). Motions for a stay of a

district court order ordinarily are made first in the district court. Fed. R. App. P. 8(a)(1)(A).

Motions to stay discovery pending appeal of orders granting petitions under 28 U.S.c. § 1782 are

routinely granted by the Second Circuit. See, e.g., In re Accent Delight Int'l, No. 16-3655, Dkt.

Nos. 37, 65 (2d Cir. 2016) (granting appellants' motion to stay Section 1782 discovery pending

2


appeal); In re Application of Chevron Corp., No. 10-1918, Dkt. Nos. 50, 187 (2d Cir. 2010)

(same).

In considering a motion for stay pending appeal, a district court is required to

weigh four factors: "( 1) whether the stay applicant has made a strong showing that he is likely to

succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies". In re World Trade Ctr. Disaster Site Litig.,

503 F .3d 167, 170 (2d Cir. 2007). These factors are interrelated, so that "more of one [factor]

excuses less of the other". Id. In particular, "[t]he necessary 'level' or 'degree' of possibility of

success will vary according to the court's assessment of the other [stay] factors". In re

Application of Chevron Corp., 709 F. Supp. 2d 283,300 (S.D.N.Y. 2010) (quoting Mohammed v.

Reno, 309 F.3d 95,101 (2d Cir. 2002)), denial ofstay rev'd, No. 10-1918, Dkt. Nos. 50,187.

ARGUMENT

This Court should stay its Order pending appeal. If Cravath were required to

produce Shell's documents prior to being heard on appeal, Cravath's appellate rights would be

mooted and the retention of U.S. law firms by foreign clients would be chilled. There is no risk

that Petitioner will suffer any injury if the order were stayed. The public has no interest in

production pending appeal. There is also a sufficient likelihood that Cravath will succeed on the

merits of the appeal, especially in light of the strength of the other three factors that weigh in

favor of a stay here.

3


I. CRA VATH WILL BE IRREPARABLY HARMED IF THE COURT'S ORDER ISNOT STAYED PENDING APPEAL.

Absent a stay, Cravath will suffer an irreparable injury because its right to appeal

the Court's Order effectively will become moot, and producing the documents prior to appeal

will chill the retention of U.S. law firms by foreign entities.

First, requiring production before appellate proceedings conclude will foreclose

Cravath from obtaining full relief from the Order. Under the current schedule, appellate

proceedings will not be completed until after Cravath is required to produce Shell's documents

to Petitioner. Appellate briefing under either the Second Circuit's default scheduling rules or an

expedited schedule would not be completed until well after February 27, 2017. If the documents

are required to be produced while an appeal is pending, Shell will be subject to litigation in the

Netherlands based on its confidential, foreign documents that never should have been collected

or produced in the U.S. litigation in the first instance because the court that ordered their

production lacked subject matter jurisdiction in that litigation ab initio.

Once these documents are produced, Petitioner may use the documents in Dutch

court immediately, prior to any decision by the Second Circuit. Once the documents are

presented to a Dutch court, the documents may become public in the course of any Dutch

proceedings, even if Petitioner endeavors to maintain their confidentiality. Should Cravath

prevail on appeal, there will be no ability to compel a Dutch court to prohibit the parties or itself

from making references to Shell's documents. As such, an order requiring Petitioner to return or

destroy Shell's documents after they have been produced to Petitioner and potentially used in the

Netherlands would be insufficient to restore Cravath to the same position it would have occupied

had the Petition not been granted.

4


Second, requiring Cravath to produce Shell's documents prior to being heard on

appeal will discourage foreign clients wary of U.S.-style discovery from engaging U.S. counsel.

The U.S. legal profession (and the New York legal profession, in particular) devotes a significant

portion of its practice to representing foreign clients. Requiring a law firm to produce documents

owned by a foreign client that are provided to a U.S. law firm solely for purposes of providing

legal advice will likely cause foreign entities to rethink engaging U.S. law firms for matters

related to their foreign operations. Indeed, many civil-law countries, including the Netherlands,

do not permit U.S.-style discovery.' See Intel Corp. v. Advanced Micro Devices, 542 U.S. 241,

261 n.12 (2004). Should international companies risk broadened discovery simply by seeking

legal advice from a U.S. law firm, those companies are likely instead to seek representation from

firms in other countries. See e.g., Tom Doherty Assocs., Inc. v. Saban Entm 't, Inc., 60 F.3d 27,

38 (2d Cir. 1995) (finding business losses beyond the specific dispute at issue constitute

irreparable harm). That likelihood increases if Section 1782 discovery is ordered to proceed

immediately even where a serious appeal is presented.

The Second Circuit recognized this chilling effect in Ratliff v. Davis Polk &

Wardwell, 354 F.3d 165 (2d Cir. 2003). Although the Second Circuit ultimately found that

discovery was appropriate for other reasons, the court noted that "[e]xposing documents-not

otherwise subject to production-to discovery demands after delivery to one's attorney whose

office was located within the sweep of a subpoena would produce a curious and unacceptable

result". Id. at 169. The Second Circuit explained that in these circumstances "[t]he price of an

2 The Netherlands argued in an amicus submitted to the U.S. Supreme Court in the Kiobellitigation that U.S. courts should not interfere with its right to resolve disputes among its ownnationals and residents (including corporations), citing overbroad discovery as an element of theU.S. system that the Dutch courts reject. (Moskowitz 1113/16 Decl. ~ 4, Ex. A, Brief of theGovts of the Kingdom of the Netherlands and the U.K. as Amici Curiae in Support of NeitherParty, dated June 13,2012, at 24-30.)

5


attorney's advice would be disclosure of previously protected matters", which "would not only

chill open and frank communications between attorneys and their clients, [but] would

disenfranchise local counsel from representing foreign entities". Id. This precise concern exists

here.' Petitioner is seeking discovery of Shell's documents, "not otherwise subject to

production" in this district, from Shell's U.S. law firm.

To ensure that Cravath has an opportunity to appeal the Court's Order and

meaningfully obtain complete relief if successful, production should be stayed until Cravath' s

appeal has been decided by the Second Circuit.

II. PETITIONER WILL SUFFER NO INJURY IF SHE RECEIVES SHELL'SDOCUMENTS FOLLOWING APPEAL.

Petitioner will suffer no injury if Cravath produces Shell's documents following

appellate proceedings in the event that Cravath does not prevail on appeal. At the outset,

Petitioner's counsel had possession of these very documents for years and participated as counsel

in a number of the depositions for which Petitioner now seeks transcripts from Cravath. The

information available in the documents was accessible to Petitioner and her counsel pursuant to

prior court orders in the Kiobel and Wiwa actions. Even were that not so, there is no prejudice to

Petitioner in allowing Cravath to obtain an appellate decision prior to production.

First, there is no risk that the requested Shell documents will be lost or destroyed

pending appeal. Cravath will maintain these documents during the appeal. (Moskowitz 2/13/17

3 The court in Ratliff ordered the production of a foreign entity's documents from a U.S. lawfirm where the foreign entity brought the documents to the United States for voluntarydisclosure. 354 F.3d at 170. Shell's documents were brought to the United States by Cravathsolely because of Shell's court-ordered discovery obligations. (See, e.g., Moskowitz 2/13/17Decl. Ex. C, at 18: 14-20.) Accordingly, Ratliff's admonition that a company should not bepermitted to bring its documents to the United States, disclose them to one party, but house themin a law firm to shield them from another party, does not apply here. 354 F.3d at 170-71.

6


Decl. ~ 3.) Cravath also agreed in the Protective Order that it would retain the documents for

three years after the conclusion of the Dutch litigation." (Protective Order ~ 19.)

Second, throughout the briefing on the Petition, Petitioner has offered no reason to

support any sense of urgency here. Petitioner has simply said that she is "eager to move forward

with this discovery". (Joint Letter (Dkt. No. 19) at 2.) Twenty years have passed since the

underlying alleged events at issue occurred and nearly four years have passed since the U.S.

litigation related to those events was dismissed by the U.S. Supreme Court. There is simply no

reason why time is now of the essence. Indeed, Petitioner's Dutch counsel, who is seeking the

documents, has stated that she believes the statute of limitations on the claims Petitioner

allegedly has against Shell under Dutch law is being tolled by a series of "liability letters" that

she sent to Shell more than three years ago (in 2013) in which Petitioner "reserve[d] all rights to

take further action in order to safeguard [Petitioner's] interests". (See Samkalden 11114/16 Decl.

~ 4 ("Under Dutch law, such liability letter serves to interrupt a limitation period.").)

Because Petitioner will not be injured at all, let alone "substantially", by the

issuance of a stay here, this factor weighs heavily in favor of granting a stay pending appeal.

III. THE PUBLIC HAS NO INTEREST IN CRA VATH PRODUCING SHELL'SDOCUMENTS PRIOR TO THE COMPLETION OF APPELLATEPROCEEDINGS.

Any interest the U.S. public has in aiding Dutch proceedings against Shell in this

matter is low. The U.S. Supreme Court has clearly indicated that the U.S. courts have minimal

interest in issues involving foreign nationals where, as here, "all the relevant conduct took place

outside the United States". Kiobel, 133 S. Ct. at 1669. In dismissing Petitioner's claims in 2013,

the U.S. Supreme Court found "no indication" that the United States intended to be "a uniquely

4 The parties submitted a stipulated protective order on January 13, 2017 (Dkt. No. 17),which the Court so-ordered on January 24,2017 (Dkt. No. 20) (the "Protective Order").

7


hospitable forum for the enforcement of international norms" through its courts and common

law. Id. at 1668. Likewise, the Dutch government itself argued that the United States had no

interest in the alleged events underlying Petitioner's discovery request. In an amicus submission

to the Supreme Court in Kiobel, the Dutch government argued that U.S. courts should not

interfere with the Dutch courts' right to adjudicate disputes among its own nationals and

residents (including corporations). (Moskowitz 1113/16 Decl. ~ 4, Ex. A, at 24-30.)

And while Section 1782 is designed to help foreign litigants access documents

held in the United States, the principal draftsperson of Section 1782, Professor Hans Smit,

explained that where the foreign court has jurisdiction over the documents requested and does

not permit the discovery on its own, "it would appear that no good argument can be made in

favor of an American court's expending its limited resources in order to aid a foreign court in

doing what the court can readily do itself, but has chosen not to do". (Id. ~ 6, Ex C ~ 21.) Here,

Shell is present in the Netherlands and is the intended defendant in the potential Dutch lawsuit.

Petitioner has the ability to petition a Dutch court to order Shell to produce the documents it

seeks here from Cravath.' This is not the type of case that Section 1782 was intended to address

and thus, neither of Section 1782' s twin aims would be served by permitting discovery pending

appeal. See Certain Funds, Accounts and/or Inv. Vehicles v. KPMG LLP, 798 F.3d 113, 117 (2d

Cir. 2015) (observing that § 1782' s twin aims are to "provid[ e] efficient means of assistance to

participants in international litigation in our federal courts" and to "encourag] e] foreign countries

by example to provide similar means of assistance to our courts" (internal quotation marks and

alterations omitted)).

5 According to Petitioner's Dutch counsel, the Netherlands provides a procedure throughwhich a person can seek discovery from another person or entity so long as certain criteria aremet, and Petitioner has not established why those criteria cannot be met here. (See Samkalden10/4/16 Decl. ~ 6; Samkalden 11114/16 Decl. ~~ 8-9.)

8


In fact, the public interest favors a stay here to avoid the "curious and

unacceptable result" of permitting discovery of documents that are in this district solely in the

possession of a foreign client's U.S. law firm because a court that lacked jurisdiction ordered

them to be collected and that were subsequently maintained in the United States for the purpose

of obtaining further legal services. Ratliff, 354 F.3d at 169 ("Exposing documents-not

otherwise subject to production-to discovery demands after delivery to one's attorney whose

office was located within the sweep of a subpoena would produce a curious and unacceptable

result.").

IV. CRA VATH IS LIKELY TO SUCCEED ON APPEAL.

Cravath's arguments on appeal demonstrate a "strong showing that [Cravath] is

likely to succeed on the merits". In re World Trade Ctr., 503 F .3d at 170. But even less is

needed here, where all other stay factors weigh in favor of staying production pending appeal.

See Chevron, 709 F. Supp. 2d at 300 ("[t]he necessary 'level' or 'degree' of possibility of

success will vary according to the court's assessment of the other [stay] factors").

The Court can find this factor in favor of granting a stay even if it "remains

confident in the soundness of the reasons" of its underlying decision. Jock v. Sterling Jewelers,

Inc., 738 F. Supp. 2d 445, 447 (S.D.N.Y. 2010). In particular, a district court should stay an

order pending appeal where the Court of Appeals "may disagree" with it over issues of first

impression. Id. at 447 (holding that "the plaintiffs have sufficiently demonstrated a likelihood of

success on the merits" where the plaintiffs' appeal presented an issue of first impression); see

LaRouche v. Kezer, 20 F.3d 68, 72-73 (2d Cir. 1994) (holding a stay may issue if"a serious legal

question is involved" and the movant "present] s] a substantial case on the merits ... and show[ s]

that the balance of the equities weighs heavily in favor of granting the stay").

9


On appeal, Cravath expects to raise several issues that, alone or in combination,

have a likelihood of success, including several matters of first impression.

First, whether Section 1782's requirements are satisfied where a law firm is

ordered to produce documents that belong to its foreign client because of its location within the

district, even though the client has no other connection to the district, is a question of first

impression before the Second Circuit. For this reason alone, the Court should find that Cravath

has shown a likelihood of success. Section 1782 requires petitioners to show that the person

from whom discovery is sought resides within the district. 28 U.S.c. § 1782. In a prior decision

(also involving Cravath), the Second Circuit did not address whether it is sufficient, as a matter

of Section 1782' s statutory requirements, that the law firm is found within the district, even if the

client, from whom the discovery "for all intents and purposes" is sought, does not. See Schmitz

v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 85 (2d Cir. 2004). Rather, the Second

Circuit affirmed the district court's denial of the petition based on application of Intel's

discretionary factors. Id.

Further, decisions by courts in the Southern District are in conflict on the

application of Section 1782' s "in district" requirement to law firms that are in possession of

client documents. In 2003, the lower court decision that was at issue in Schmitz held that

"[a]pplication of section 1782 does not involve an analysis of ... why a respondent has the

documents. It is sufficient that respondents reside in this district, as they concededly do". In re

Application of Schmitz, 259 F. Supp. 2d 294, 296 (S.D.N.Y. 2003), aff'd on other grounds, 376

F.3d at 85. However, as discussed above, that issue was not addressed by the Second Circuit.

And in 2011, another district court in the Southern District held the opposite and denied a

Section 1782 petition on this ground, holding that while a New York law firm "potentially serves

10


as the physical custodian of some requested documents, [] the documents themselves were

obtained or created by the [firm's clients], who reside in New Jersey". In re Bank of Cyprus

Public Co. Ltd., No. 10 Misc. 23, 2011 WL 223168, at *2 (S.D.N.Y. Jan. 21,2011).6

Second, whether Section 1782 discovery is appropriate where the requested

documents are in the district only for purposes of prior litigation is also a matter of first

impression for the Second Circuit. In Schmitz, the Second Circuit expressly left open "the

difficult question posed by Cravath whether § 1782 applies to documents only temporarily

present in the jurisdiction for the purpose of discovery in another case". Schmitz, 376 F.3d at 85

n.6. Here, Shell's documents are only in Cravath's possession and in the United States because

Cravath was ordered to collect them abroad and bring them into the United States in connection

with the now-dismissed Kiobellitigation. (See, e.g., Moskowitz 2/13/17 Decl. Ex. C, at 18: 14-

20.) The connection to the United States is even more tenuous here than in Schmitz, because

there was no jurisdiction in the case for which the documents were collected for discovery.

Third, the Second Circuit is likely to hold that courts may not, even as a matter of

discretion under the Intel factors, order Section 1782 discovery against a foreign entity through

its U.S. counsel where that entity is or will be a party to the foreign proceeding at issue. Every

reported case to consider this question, prior to this one, has held that ordering discovery of the

law firm under these circumstances is not an appropriate use of discretion. 7

6 The court's holding in Bank of Cyprus was not dependent on the fact that there was anotherpetition pending against the law firm's client in another district; the court was focused on the factthat the documents sought belonged to the client and that the client-as opposed to the lawfirm-was not present in the district. 2011 WL 223168, at *2.

7 See, e.g., In re Application Pursuant to 28 u.s. C. § 1782 of Okean B. V & Logistic Sol.Int'l to Take Discovery of Chadbourne & Parke LLP, 60 F. Supp. 3d 419 (S.D.N.Y. 2014)(denying discovery pursuant to Section 1782 as unduly burdensome where a law firm would beforced to produce privileged client documents); In re Mare Shipping Inc., No. 13 Misc. 238,2013 WL 5761104 (S.D.N.Y. Oct. 23, 2013), aff'd sub nom. Mare Shipping Inc. v. Squire

11


Fourth, the Second Circuit likely will find that Petitioner cannot meet

Section 1782' s statutory requirement that the discovery is "for use" in a foreign proceeding that

is "within reasonable contemplation". Intel, 542 U.S. at 247. Petitioner seeks to assert claims

more than twenty years after the alleged events underlying Petitioner's claims occurred and

nearly four years after the U.S. Supreme Court dismissed claims related to those events under

U.S. law. The Second Circuit previously held that a "substantial length of time" of five years

between the underlying events and the Section 1782 petition foreclosed a Section 1782 petitioner

from establishing that a foreign proceeding was "within reasonable contemplation" when the

petitioner had done no more than retain counsel to assess the possibility of bringing claims.

Certain Funds, 798 F.3d at 124. While this Court excused Petitioner's delay on the ground that

Petitioner had retained counsel, that counsel had sent Shell "liability letters" more than three

years ago in 2013, that counsel claims to have drafted a Dutch writ of summons and procured

Dutch legal aid (Order at 6), the Second Circuit may very well find those steps insufficient in its

de novo review.

Sanders (US) LLP, 574 F. App'x 6 (2d Cir. 2014); see also Schmitz, 376 F.3d at 85 (affirmingthe denial of the petition on discretionary grounds where "[a]lthough technically the respondentin the district court was Cravath, for all intents and purposes petitioner are seeking discoveryfrom DT, their opponent in the German litigation").

12


CONCLUSION

For the foregoing reasons, Cravath respectfully requests that the Court grant a

stay of its Order directing Cravath to produce the requested discovery pending appeal.

February 13,2017

Respectfully submitted,

lsi Lauren A. MoskowitzLauren A. MoskowitzMember of the Firm

CRA VATH, SWAINE & MOORE LLPWorldwide Plaza

825 Eighth A venueNew York, NY 10019

(212) [email protected]

Attorneys for Respondent Cravath, Swaine &MooreLLP

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mailto:[email protected]

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