Wiwa v. Royal Dutch Petroleum Co.

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED DECEMBER 21, 2004
December 7, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

No. 03-21222

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,

versus

ROYAL DUTCH PETROLEUM COMPANY; SHELL
TRADING & TRANSPORT COMPANY, P.L.C.,

Defendant-Appellee,

VICTOR OTERI,
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 Trading and Transport 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

1
The underlying litigation is entitled Kiobel, et al. v.
Royal Dutch Petroleum Co., et al. (02-CV-7618) (S.D.N.Y.). The
Southern District of New York consolidated this matter with Wiwa,
et al. v. Royal Dutch Petroleum Co., et al. (96-CV-08386)
(S.D.N.Y.). Kiobel filed a motion in the district court to
remedy the caption to reflect that only Kiobel appeals the
district court’s denial of the discovery motion. The district
court denied the request.

2
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 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

3
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

2
See 28 U.S.C. § 1291.
3
See Church of Scientology v. United States, 506 U.S. 9, 18
n. 11 (1992).

4
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 Rubin7 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

4
See Texaco Inc. v. La. Land & Exploration Co., 995 F.2d
43, 44 (5th Cir. 1993). In this Circuit, under the Cohen
collateral order doctrine, see Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949), a party may immediately appeal a
collateral order if it demonstrates 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.” A-Mark Auction Galleries, Inc. v. American
Numismatic Ass’n, 233 F.3d 895, 897 (5th Cir. 2000).
5
233 F.3d at 898-99.
6
Id. at 899 n. 2.
7
679 F.2d 29 (5th Cir. 1982).

5
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

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)

8
Id. at 30.
9
Id.
10
Id.
11
Id.
12
Id.

6
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

13
Rule 37 provides that “[a]n application for an order to a
person who is not a party shall be made to the court in the
district where the discovery is being, or is to be, taken.” FED.
R. CIV. P. 37(a)(1).
14
Moreover, the other circuits that have ruled on this
question are in unanimous agreement that a party may immediately
appeal the denial of a discovery order directed at a non-party to
underlying litigation pending in another circuit. See, e.g.,
Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 541 (4th Cir.
2004) (“We adopt the uniform position of the courts of appeals
and hold that an order denying discovery from a nonparty in an
ancillary proceeding where the underlying lawsuit is pending in
another circuit is immediately appealable as a collateral
order.”); Miscellaneous Docket Matter # 1 v. Miscellaneous Docket
Matter # 2, 197 F.3d 922, 925 (8th Cir. 1999) (same); Cusumano v.
Microsoft Corp., 162 F.3d 708, 712 (1st Cir. 1998) (same); Micro
Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1320 (Fed.
Cir. 1990) (same); Corp. of Lloyd’s v. Lloyd’s U.S., 831 F.2d 33,
34 (2d Cir. 1987) (same); CF & I Steel Corp. v. Mitsui & Co., 713
F.2d 494, 496 (9th Cir. 1983) (same); National Life Ins. Co. v.
Hartford Accident & Indem. Co., 615 F.2d 595, 597 (3d Cir. 1980);
In re Westinghouse Elec. Corp., 570 F.2d 899, 901 (10th Cir.
1978) (same).

7
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 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 Sessions20 as

supporting the proposition that we have no jurisdiction over this

appeal because the district court’s denial of Kiobel’s motion to

15
A-Mark Auction Galleries, 233 F.3d at 898-99.
16
Nicholas, 373 F.3d at 542 (citing Cusumano, 162 F.3d at
712); National Life Ins. Co., 615 F.2d at 597.
17
Id. (citing Miscellaneous Docket #1, 197 F.3d at 925;
Micro Motion, 894 F.2d at 1320; Rubin, 679 F.2d at 30).
18
Id.
19
831 F.2d 545 (5th Cir. 1987).
20
672 F.2d 564 (5th Cir. 1982).

8
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 the order denying the motion to compel.

Oteri contends that the district court denied the motion to compel

as moot because it had already quashed the subpoena.23 In sum,

Oteri argues that Kiobel appeals the denial of a moot motion. We

reject this argument. The motion to compel, which Kiobel appeals,

is derivative of the subpoena that the district court quashed:

Kiobel would not have had to file the motion to compel if Oteri had

21
995 F.2d at 43-44.
22
Willy, 831 F.2d at 549; Sessions, 672 F.2d at 566-67.
23
The district court’s order denying the motion to compel
reads, in full, “The court’s October 10, 2003 order [quashing the
subpoena] quashed all discovery —— deposition and document
production —— concerning Victor Oteri. The plaintiffs’ motion to
compel is denied.”

9
complied with the subpoena. After the district court quashed the

subpoena, the motion to compel was still outstanding because the

district court failed to rule on it when it quashed the subpoena.

Kiobel’s appeal of the motion to compel —— which seeks to enforce

Oteri’s compliance with the subpoena —— is logically an appeal of

the quashing of the underlying subpoena. Oteri’s argument is

meritless, and we hold under the authority of Rubin that we have

jurisdiction over this appeal.

B. Motion to Compel

1. Standard of Review

We review the grant of a motion to quash a subpoena for abuse

of discretion.24 We review a district court’s discovery rulings,

including the denial of a motion to compel, for abuse of

discretion.25 We “will affirm such decisions unless they are

arbitrary or clearly unreasonable.”26

2. Merits

Under Federal Rule of Civil Procedure 45, a court may quash or

modify a subpoena if it (1) fails to allow a reasonable time for

compliance; (2) requires a person who is not a party to travel more

than 100 miles from where the person resides; (3) requires

24
Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir.
1994).
25
See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876
(5th Cir. 2000).
26
Id.

10
disclosure of privileged or protected matter; or (4) subjects a

person to undue burden.27 Oteri challenges Kiobel’s subpoena on the

fourth ground only, viz., that the subpoena is overbroad and

subjects him to undue burden.

The moving party has the burden of proof28 to demonstrate “that

compliance with the subpoena would be ‘unreasonable and

oppressive.’”29 “Whether a burdensome subpoena is reasonable ‘must

be determined according to the facts of the case,’ such as the

party’s need for the documents and the nature and importance of the

litigation.”30 To determine whether the subpoena presents an undue

burden, we consider the following factors: (1) relevance of the

information requested; (2) the need of the party for the documents;

(3) the breadth of the document request; (4) the time period

covered by the request; (5) the particularity with which the party

describes the requested documents; and (6) the burden imposed.31

Further, if the person to whom the document request is made is a

27
See FED. R. CIV. P. 45(3)(A)(i)-(iv).
28
See Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D.
Tex. 1998) (citing Linder v. Dep’t of Defense, 133 F.3d 17, 24
(D.C. Cir. 1984)).
29
Id. (quoting Barnes Found. v. Township of Lower Merion,
1997 WL 169442, at *4 (E.D. Pa. Apr. 7, 1997) (quotations
omitted)).
30
Linder, 133 F.3d at 24 (quoting Northrop Corp. v.
McDonnell Douglas Corp., 751 F.2d 395, 407 (D.C. Cir. 1984)).
31
Williams, 178 F.R.D. at 109 (quoting Concord Boat Corp.
v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y. 1996)).

11
non-party, the court may also consider the expense and

inconvenience to the non-party.32 A court may find that a subpoena

presents an undue burden when the subpoena is facially overbroad.33

Generally, modification of a subpoena is preferable to

quashing it outright.34 In circumstances analogous to this

situation —— appellate review of a denial of a motion for abuse of

discretion —— we and other courts have held that a district court’s

denial of such a motion, unaccompanied by reasons —— either written

or oral —— may constitute an abuse of discretion.35 Here, the

32
See id.; see also FED. R. CIV. P. 45(c)(2)(B) (“Such an
order to compel production shall protect any person who is not a
party or an officer of a party from significant expense resulting
from the inspection and copying commanded.”).
33
See id.
34
See id. (citing Tiberi, 40 F.3d at 112); see also Linder
v. Nat’l Sec. Agency, 94 F.3d 693, 698 (D.C. Cir. 1996)
(“[M]odification of a subpoena is generally preferred to outright
quashing . . . .”).
35
See East v. Scott, 55 F.3d 996, 1001 (5th Cir. 1995)
(quoting Coleman v. Zant, 708 F.2d 541, 547 (11th Cir. 1983))
(“While the district court generally has discretion to grant or
deny discovery requests under Rule 6 [of the Rules Governing
Habeas Corpus Cases under Section 2254], a court’s blanket denial
of discovery is an abuse of discretion if discovery is
‘indispensable to a fair, rounded, development of the material
facts.’”); see also Head v. Medford, 62 F.3d 351, 354 (11th Cir.
1995) (“[T]he distric court . . . gave no reason for denying
defendant’s bill of costs. This was an abuse of the court’s
discretion.”); Picon v. Morris, 933 F.2d 660, 663 (8th Cir. 1991)
(“Against this need for relief under Rule 60(b)(6), the district
court gave no reasons for its denial from which we can conclude
that it did not abuse its discretion.”); Twin City Constr. Co. v.
Turtle Mountain Band of Chippewa Indians, 911 F.2d 137, 139 (8th
Cir. 1990) (finding that district court’s failure to articulate
reasons for denial of Rule 59(e) motion indicative of abuse of

12
district court quashed the subpoena and denied the motion to compel

outright without providing oral or written reasons for doing so.36

Neither did the district court attempt to explain any deficiencies

in either the subpoena or the motion so that Kiobel might have an

opportunity to cure any defects. Nor did the district court

attempt to modify the subpoena to cure any overbreadth; the

district court even failed to set or hold a hearing on the breadth

of the subpoena. There is no record evidence that the district

court considered and applied the factors listed above to determine

whether the subpoena is overbroad. We hold that this constitutes

an abuse of discretion under the circumstances present here.

Having concluded that the district court abused its discretion

when it quashed the subpoena and denied the motion to compel

outright without giving any reasons whatsoever, we must now

determine the appropriate remedy, which the parties dispute.

Kiobel asserts that the proper remedy is to remand to the district

court with instructions that it grant the motion to compel. In

contrast, Oteri contends that the only proper remedy is a remand to

the district court with instructions to provide this court with the

discretion); Griggs v. Hinds Junior Coll., 563 F.2d 179, 180 (5th
Cir. 1977) (holding that district court abused discretion when it
gave no reasons for denying motion to amend and no prejudice
shown to opposing party).
36
The district court also quashed three other related
subpoenas with no written or oral reasons.

13
reasons for which it denied the motion to compel and quashed the

subpoena.

We find no case law —— and the parties have cited us to none

—— that restricts our course of action when we conclude that the

district court abused its discretion by failing to provide reasons

for denying a motion to compel and quashing a subpoena. Section

2106 of the United States Code, however, aids our determination of

the appropriate remedy here:

The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or
reverse any judgment, decree, or order of a court
lawfully brought before it for review, and may remand the
cause and direct the entry of such appropriate judgment,
decree, or order, or require such further proceedings to
be had as may be just under the circumstances.37

Under this provision, we “ha[ve] the power to make such disposition

of the case as justice may require.”38 Indeed, “‘in the exercise

of our appellate jurisdiction we have power not only to correct

error in the judgment under review but to make such disposition of

the case as justice requires.’”39

Section 2106 grants us broad power when it comes to how best

to dispose of a matter under our review. Here, we are convinced

that a remand to the district court for the provision of reasons

37
28 U.S.C. § 2106.
38
Bank of China v. Wells Fargo Bank & Union Trust Co., 190
F.2d 1010, 1012 (9th Cir. 1951) (citing 28 U.S.C. § 2106)).
39
In re Elmore, 382 F.2d 125, 127 (D.C. Cir. 1967) (citing
Hormel v. Helvering, 312 U.S. 552, 558-59 (1941)).

14
would be an exercise in futility. Such a remand would

unnecessarily prolong not only this dispute but the underlying

litigation in the Southern District of New York as well.

Considering the interests of judicial economy, the convenience to

the parties, the likelihood of a subsequent appeal if the district

court were to deny the discovery motion with reasons, and further

delay of the underlying litigation in the Southern District of New

York, we conclude that modification of the subpoena followed by a

remand is appropriate here.

As noted above, the subpoena requests

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

Oteri argues that (1) the subpoena seeks irrelevant information;

(2) Kiobel does not need the information because she has already

received Shell’s documents; (3) the subpoena contains no specific

time frame; (4) the period that the subpoena covers is enormous;

and (5) Kiobel has refused to particularize and narrow her document

request.40

40
It is unclear whether Oteri also challenges the
deposition that the subpoena ordered. In his appellate brief,
Oteri’s arguments do not contest the deposition. Oteri’s
objections to the subpoena in the district court concentrate
specifically on the document request, although he does note that
Kiobel “issue[d] an overbroad and unduly burdensome non-party
subpoena for documents and deposition testimony.” For purposes
of this appeal, we assume that Oteri challenges the entire

15
 Oteri first argues that the subpoena seeks irrelevant

information. “Under the federal discovery rules, any party to a

civil action is entitled to all information relevant to the subject

matter of the action before the court unless such information is

privileged.”41 Discovery requests are relevant when they seek

admissible evidence or evidence that is “‘reasonably calculated to

lead to the discovery of admissible evidence.’”42 Whether Kiobel’s

discovery requests are relevant thus turns on whether they are

“reasonably calculated” to lead to evidence admissible as to her

claims against Shell.

Here, the basis of the underlying complaint is that Shell

cooperated in the Nigerian government’s campaign against the Ogoni.

Oteri served as the security coordinator for Shell’s Nigerian

subsidiary during the time alleged in the complaint, and, indeed,

the documents that Kiobel already possesses show that Oteri was

involved in the purchase of arms and ammunition for Shell. The

subpoena requests the documents that Oteri possesses, controls, or

has access to that pertain to his employment with Shell. The

subpoena further requests that Oteri produce all documents that

relate to his “other business activities” in Nigeria, including

subpoena —— both the document request and the deposition.
41
Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1086 (5th
Cir. 1979) (citing FED. R. CIV. P. 26(b)(1)).
42
McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894
F.2d 1482, 1484 (5th Cir. 1990) (quoting FED. R. CIV. P. 26(b)).

16
those with the Nigerian government, police, or military. The

subpoena clearly requests information and documents that are

relevant to Kiobel’s complaint. As Shell’s security coordinator,

Oteri’s knowledge of Shell’s activities with the Nigerian

government is relevant to the claims that Kiobel alleges in her

complaint.

We find, however, that, as written, the subpoena’s document

request is overbroad. Oteri challenges the subpoena’s request for

all documents that relate to his dealings with the Nigerian

government. Oteri has dealt with the Nigerian government for more

than twenty years, even after he moved to the United States. This

information clearly falls under the subpoena’s request but is

irrelevant to Kiobel’s claim. Further, Oteri is correct in his

assertion that the document request in the subpoena seeks personal

information irrelevant to Kiobel’s claim. For example, the

subpoena, as worded now, encompasses personal information —— such

as Oteri’s tax forms —— that are irrelevant to Kiobel’s claim. We

therefore limit the substantive document request to corporate

documents that (1) pertain solely to Oteri’s position as security

coordinator at Shell and (2) relate to Shell’s alleged interactions

with the Nigerian government and its treatment of the Ogoni.43

43
Oteri also asks that we limit the geographic scope of the
subpoena to “events occurring in Ogoniland” because Oteri worked
at Shell’s office in Lagos, Nigeria, and the subpoena encompasses
documents in Lagos that do not concern the Ogoni. This we refuse
to do. Merely because Oteri worked at the Lagos office does not
by implication mean that his knowledge of or any documents that

17
 Further, the subpoena requests all documents to which Oteri

has “access.” Oteri contends that the term “access” is overbroad

because Federal Rule of Civil Procedure 34 requires only the

production of documents in the “possession, custody, or control” of

the person to whom the subpoena is directed.44 Oteri argues that

the term “access” encompasses documents that he does not have under

his “possession, custody, or control.” We agree. The phrase “to

which he has access” is overbroad; it would require the retrieval

of documents from Nigeria —— documents not under Oteri’s custody,

control, or possession, but to which he could conceivably have

access by virtue of his prior position with Shell. We therefore

limit the document request in the subpoena to documents within

Oteri’s custody, control, or possession.

We also limit the temporal scope of the subpoena. Kiobel

maintains that she requests only “documents concerning Mr. Oteri’s

contacts with the Nigerian government and military during a

specific time period.” Although the absence of a time frame in the

subpoena belies Kiobel’s contention, she notes that in her letter

dated May 23 —— part of an exchange between counsel in an effort to

particularize the subpoena request —— she “specifically referenced

he may have that relate to Shell’s interactions with the Nigerian
government occurred solely in Ogoniland. For example, a purchase
of weapons and ammunition that did not occur in Ogoniland could
relate to Kiobel’s claims even though the negotiations for the
weapons and their purchase did not occur there.
44
FED. R. CIV. P. 34(b).

18
Mr. Oteri’s knowledge derived from his position as ‘security

coordinator’ for Shell in Nigeria during the relevant period of the

Complaint and his knowledge regarding Shell’s complicity with the

Nigerian government and military.”45 Accordingly, we limit the

document request to the period alleged in Kiobel’s complaint and to

the information described in the May 23 letter. We are satisfied

that these modifications remedy the overbreadth of the subpoena’s

document request.46

Oteri presents two further arguments that merit our attention.

He contends that —— pursuant to discussions between counsel for the

parties —— Kiobel knew that the subpoena was overbroad and failed

to particularize it. In essence, Oteri argues that the district

court was justified in quashing the subpoena because Kiobel failed

to narrow it sua sponte. We reject this argument. Oteri has cited

no law to support the proposition that a plaintiff must attempt to

particularize or narrow a subpoena during out-of-court discussions

with opposing counsel. Further, Kiobel’s May 23 letter to opposing

counsel, in which she attempted to clarify her position and to

45
In the May 23 letter, counsel for Kiobel specified that
Kiobel is “interested in [Oteri’s] knowledge of [Shell’s]
interactions with the Nigerian government and military and of the
events alleged in the complaint.”
46
See, e.g., Williams, 178 F.R.D. at 110-11 (modifying
subpoena to reflect plaintiff’s narrower scope as contended in
plaintiff’s brief).
It goes without saying that any limitations that we impose
on the subpoena’s document request also apply to Oteri’s
testimony at the deposition.

19
narrow the scope of the subpoena, belies Oteri’s argument that

Kiobel made no effort to narrow her request.

Oteri also asserts that this discovery issue is moot,

observing that Kiobel’s counsel has represented to the New York

district court that discovery in the underlying litigation closed

on May 31, 2004. Oteri contends that Kiobel has failed to

demonstrate that any information that Oteri produces in response to

the subpoena will be admitted in the underlying litigation. Kiobel

counters that, although merits discovery has ended, there are many

discovery issues that the New York district court has yet to

resolve, including this one. Kiobel states that the New York

district court is aware of this appeal.

We point out first that —— conclusional allegations aside ——

neither party has provided us with evidence that the District Court

for the Southern District of New York will include or exclude this

evidence even though the merits discovery deadline has passed.

Kiobel had the first and second subpoenas served on Oteri well

before the merits discovery deadline. The second, the one that is

the subject of this appeal, was served on September 8, 2003. It is

not uncommon for a district court to admit evidence —— even after

the discovery deadline —— obtained through properly- and timely-

served discovery requests. We reject Oteri’s arguments.

III. CONCLUSION

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 We reverse the district court’s quashing of the subpoena and

its denial of the motion to compel, and we modify Kiobel’s subpoena

by its breadth as outlined above. Accordingly, we remand this

matter to the district court for continued proceedings consistent

with the modified subpoena and not inconsistent with this opinion.

ORDERS REVERSED; SUBPOENA MODIFIED; CASE REMANDED for further

consistent proceedings.

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