Kiobel v. Cravath, Swaine & Moore LLP
895 F.3d 238
2d Cir.2018Background
- Esther Kiobel sought § 1782 discovery from Cravath (U.S. law firm) to obtain documents produced by Shell in prior U.S. Alien Tort Statute (ATS) litigation for use in a new Dutch suit.
- The prior ATS discovery was produced under a stipulated confidentiality order limiting use to the U.S. Kiobel and Wiwa cases and requiring return/destruction after litigation.
- Cravath holds the materials as Shell's counsel; Shell is not a party to the § 1782 proceeding and is subject to jurisdiction in the Netherlands.
- The district court found it had § 1782 jurisdiction over Cravath, granted the petition, and required a new stipulation limiting use to drafting Dutch pleadings; Shell could not enforce breaches under that stipulation.
- On appeal, Cravath argued lack of jurisdiction to compel client documents from counsel and that granting discovery abused discretion by circumventing Dutch discovery limits and undermining protective orders and attorney-client confidentiality.
- The Second Circuit held the district court had § 1782 jurisdiction over Cravath but reversed the discretionary grant as an abuse of discretion because compelling counsel-held, foreign-client documents would undermine confidentiality protections and conflict with Intel factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court had jurisdiction under 28 U.S.C. § 1782 to compel Cravath (U.S. counsel) to produce documents held for a foreign client | Kiobel: Cravath "resides or is found" in SDNY and is therefore a proper § 1782 respondent | Cravath: Documents belong to Shell; Shell (the real party) is not found in SDNY, so § 1782 cannot reach them via counsel | Court: Jurisdiction exists as a textual matter; a law firm's status as counsel is not a jurisdictional bar |
| Whether § 1782 discovery should be granted when the documents sought were produced under a U.S. confidentiality order and would be undiscoverable from the client in the foreign forum | Kiobel: Dutch procedure requires assembling evidence pre-filing; efficiency and higher Dutch evidentiary thresholds justify § 1782 relief | Cravath: Granting relief would circumvent Dutch discovery limits, defeat the prior confidentiality order, and harm attorney-client communications | Court: Denied relief—abuse of discretion. Intel factors and Sarrio concerns favor protecting counsel-held, client-origin documents |
| Whether seeking documents from U.S. counsel is an improper end-run around foreign proof-gathering restrictions | Kiobel: Not an end-run—Dutch courts permit gathering such evidence and would be receptive | Cravath: Petition is circumvention of Dutch restrictions and therefore disfavored under Intel factor three | Court: Petition sought to circumvent Dutch practice; Intel factor three weighs against granting discovery |
| Whether disclosure would be unduly burdensome or intrusive given protective order and foreign-client interests | Kiobel: Production would be minimally burdensome and necessary to file in the Netherlands | Cravath: Disclosure would undermine protective orders, chill client-lawyer communications, and create harmful precedent | Court: Concerns about protective-order integrity, lawyer-client communications, and practical harms render disclosure improper under Intel factors |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (Sup. Ct. 2004) (sets non-exclusive factors for § 1782 discretionary analysis)
- Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004) (respondent's residence suffices for § 1782 jurisdiction; counsel status is a discretionary factor)
- Application of Sarrio, S.A., 119 F.3d 143 (2d Cir. 1997) (protecting client communications when documents are unreachable from client abroad)
- Ratliff v. Davis Polk & Wardwell, 354 F.3d 165 (2d Cir. 2003) (distinguishes third-party public disclosure from confidential production; third-party authorization can waive protection)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (Sup. Ct. 2013) (ATS extraterritoriality principle; background to the underlying litigation)
- Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) (§ 1782 jurisdictional interpretation and discretionary limits)
- Fisher v. United States, 425 U.S. 391 (Sup. Ct. 1976) (attorney-client privilege principles; client privilege protects counsel-held documents)
- Upjohn Co. v. United States, 449 U.S. 383 (Sup. Ct. 1981) (importance of full and frank attorney-client communications)
- S.E.C. v. TheStreet.Com, 273 F.3d 222 (2d Cir. 2001) (strong presumption against modifying protective orders)