392 F.3d 812 (5th Cir. 2004), 03-21222, Wiwa v. Royal Dutch Petroleum Co.

Docket Nº:03-21222.
Citation:392 F.3d 812
Party Name:Ken WIWA, Individually and as Executor of the Estate of His Deceased Father, Ken Saro-Wiwa; Owens Wiwa; Blessing Kpuinen, Individually and as the Administratrix of the Estate of Her Husband, John Kpuinen; Jane Doe, Plaintiffs-Appellants, v. ROYAL DUTCH PETROLEUM COMPANY; Shell Transport & Trading Company, P.L.C., Defendants-Appellees, Victor Oteri,
Case Date:December 07, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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392 F.3d 812 (5th Cir. 2004)

Ken WIWA, Individually and as Executor of the Estate of His Deceased Father, Ken Saro-Wiwa; Owens Wiwa; Blessing Kpuinen, Individually and as the Administratrix of the Estate of Her Husband, John Kpuinen; Jane Doe, Plaintiffs-Appellants,

v.

ROYAL DUTCH PETROLEUM COMPANY; Shell Transport & Trading Company, P.L.C., Defendants-Appellees,

Victor Oteri, Appellee.

No. 03-21222.

United States Court of Appeals, Fifth Circuit

December 7, 2004

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Stephen A. Whinston (argued), Berger & Montague, Philadelphia, PA, Theodore

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Carl Anderson, Kilgore & Kilgore, Dallas, TX, for Plaintiffs-Appellants.

Ike Nkem Atah Waobikeze (argued), Waobikeze & Associates, Houston, TX, for Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Esther Kiobel appeals the district court's order denying her motion to compel attendance and to produce documents and quashing the subpoena duces tecum directed to Victor Oteri, a non-party to the underlying class action suit pending in the United States District Court for the Southern District of New York. We reverse and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS

This ancillary proceeding arises from a class action lawsuit pending in the United States District Court for the Southern District of New York in which Kiobel and others allege that the Royal Dutch Petroleum Company, Shell Transport and Trading Company, P.L.C., and Shell Petroleum Development Corporation of Nigeria, Inc. (collectively, "Shell") cooperated with and assisted the Nigerian military in the brutal repression of the Ogoni, a Nigerian ethnic minority. 1 The underlying complaint alleges that the Ogoni demanded that Shell adhere to proper environmental standards and pay compensation for environmental damages in relation to its oil exploration and production activities in Nigeria. In response to the Ogoni's demands, the Nigerian military and police forces, allegedly supported and assisted by Shell, retaliated against the Ogoni by visiting a campaign of terror on them, which allegedly included launching armed attacks on their villages, subjecting the inhabitants to arbitrary arrest, confinement, and torture, and executing leaders of the protest following proceedings in a military kangaroo court.

During discovery in the underlying litigation, Kiobel learned that a non-party witness, Victor Oteri, resides in Houston, Texas. Oteri served as the security coordinator for Shell's Nigerian subsidiary during the time alleged in the complaint. In the United States District Court for the Southern District of Texas, Kiobel sought, procured, and then served a subpoena duces tecum on Oteri in February 2003. The subpoena ordered Oteri to appear and to testify regarding Shell's alleged cooperation with the Nigerian government and military in the campaign against the Ogoni to thwart their peaceful protests against Shell's oil operations. The subpoena also ordered Oteri to produce at the deposition documents relevant to Kiobel's underlying claims.

Counsel for Kiobel and Oteri failed to agree on a date for Oteri's deposition or on the scope of the documents that Oteri was to produce at the deposition. Kiobel then issued a second subpoena in September 2003, which was identical to the first. This subpoena required Oteri to produce:

[a]ny and all documents in your control, possession, or have access to [sic] pertaining to: your employment with the Shell Petroleum Development Company of Nigeria; any and all of your other business activities in Nigeria. including, but not limited [sic], all activities with

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the Nigerian Government, military, Nigerian Police, SPY Police and all other professional entities.

After communications between counsel for Kiobel and Oteri failed to produce any agreement on the scope of the subpoena or any possible date for the deposition, Oteri filed objections to the subpoena duces tecum in the district court.

In response to Oteri's objections, Kiobel filed a Motion to Compel Attendance and Production of Documents in October 2003. The district court treated Oteri's objections as a motion to quash, crediting the objections and quashing the subpoena. The following month, the district court denied Kiobel's motion to compel based on the prior order that quashed the subpoena. The court provided no explanation in either order--oral or written--as to why it quashed the subpoena or denied the motion to compel. Kiobel timely filed her notice of appeal.

II. ANALYSIS

A. Jurisdiction

As a threshold matter, we must determine whether we have jurisdiction to review the discovery order that Kiobel appeals. Subject to exceptions not relevant here, we have jurisdiction over only "final decisions" of a district court. 2 In general, discovery orders do not constitute final decisions under Section 1291 and are not immediately appealable. 3 And, we have held that discovery orders generally are not appealable under the Cohen collateral order doctrine. 4

In A-Mark Auction Galleries, Inc. v. American Numismatic Ass'n, we held that a district court order granting discovery directed at a non-party in a proceeding ancillary to the underlying litigation was not immediately appealable under Section 1291 or the collateral order doctrine. 5 In A-Mark, however, we "specifically reserve[d] for another day and another case the issue whether a decision denying discovery to a party seeking it would be appealable in circumstances such as those present in this case." 6

Despite our reservation in A-Mark, we had previously held in In re Rubin 7 that we have jurisdiction over the denial of a discovery order directed to a non-party to an underlying lawsuit pending in another circuit. Tom Rubin was the subject of a bankruptcy proceeding pending in the United States Bankruptcy Court for the Central District of California. 8 He initiated discovery against KHTV-TV, Houston, Texas--a non-party to the bankruptcy proceeding--in the United States District Court for the Southern District of Texas. 9 The district court denied the discovery motion, and Rubin appealed. 10

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We held that the denial of the discovery order was immediately appealable. 11 In doing so, we stated that

[i]t is true that normally the action by the district court on a discovery motion is interlocutory and not appealable. But of importance in the circumstances of this case is the requirement of Rule 37(a) (1)... that the motion for discovery was required to be filed in the Southern District of Texas. Since KHTV is not a party to the bankruptcy in California, the only way in which the order of the district court denying discovery can be appealed is to this Court. If this appeal is dismissed there is no review of the district court order. Under these circumstances, appeal from such an order should lie.

We find that the denial of the discovery motion in this case is appealable. 12

Rubin is directly applicable to the instant appeal. Kiobel, like Rubin, is a party to underlying litigation pending in another circuit. Oteri, like KHTV-TV, is a non-party to the underlying litigation to whom the party has directed discovery. Rule 37(a) (1) required Kiobel to seek her subpoena in the Texas district court. 13 Both here and in Rubin, the district courts denied the discovery requests. Any appeal of the Texas district court's denial lies only with this court. We conclude that the denial of Kiobel's discovery order is immediately appealable. 14

Our holding is buttressed by an analysis of this interlocutory appeal under the Cohen collateral order doctrine. As noted, the Cohen doctrine authorizes a party to appeal a collateral order immediately by demonstrating that the order "(1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment." 15 An order denying discovery directed to a non-party to underlying litigation pending in another circuit "conclusively resolves the only issues before the district court--discovery issues affecting the nonparty--independent of the merits of the underlying lawsuit." 16 Further, "the party aggrieved by an order denying discovery from a nonparty outside the circuit in which the underlying lawsuit is pending would have no

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means of obtaining appellate review of that order absent immediate appeal." 17 Here, the Second Circuit will decide any appeal from the final judgment in the underlying class action lawsuit, and the Second Circuit has "no authority to upset a discovery order entered by a district court in this circuit." 18 The Cohen collateral order exception supports our jurisdiction here.

Oteri cites Texaco, In re Willy, 19 and In re Sessions 20 as supporting the proposition that we have no jurisdiction over this appeal because the district court's denial of Kiobel's motion to compel is an interlocutory discovery order. Oteri's reliance on these cases is misplaced. Not one of these cases treats whether the denial of a discovery order directed to a non-party to underlying litigation is immediately appealable. Texaco, for example, treated an appeal of the denial of a discovery order directed to a party to the underlying proceeding under the collateral doctrine exception. 21 In Willy and Sessions, we denied mandamus petitions to parties who appealed the denial of a discovery motion directed at a party to the underlying proceedings. 22

Oteri also seems to argue that we have no jurisdiction to entertain this appeal because Kiobel does not appeal the order quashing the subpoena, only...

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