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Commentary: How to use US Foreign Legal Assistance statute to access information for lawsuits abroad; Kiobel case against Shell as an example

"Kiobel v. Cravath: An Example of How a Little-Known U.S. Law can be Used as a Pre-Litigation Tool Overseas", 22 Feb 2017

When Esther Kiobel...could not find justice by suing Shell in U.S courts, she decided to sue...in the Netherlands...Ms. Kiobel returned to the same federal court where she had filed her case...fourteen years earlier, this time under FLA [Foreign Legal Assistance statute] to access the documents held by Cravath [Cravath, Swaine & Moore LLP] and use those documents to assist her Dutch lawsuit.  Cravath...claimed that the documents should not be turned over because Ms. Kiobel had yet to commence her action in the Netherlands...The court, however,...granted the application...[A] FLA can be filed to assist lawsuits that are within “reasonable contemplation.”  Applying this standard, the court found that the requirement under Dutch procedure that plaintiffs present a certain amount of evidence at the outset of an action was a compelling explanation for why Ms. Kiobel had not yet commenced the litigation...[T]he court noted that Ms. Kiobel had met her burden of providing objective indicia that the action was within reasonable contemplation, including proof that her Dutch lawyer had drafted a writ of summons, applied and obtained legal aid funding, and sent liability letters to Shell...

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