Malabu – ENI Gets Green Light to Subpoena Companies Over Nigerian Litigation Arrangement

The Malabu scandal involves the transfer of about $1.1 billion by oil multinationals, Shell and ENI, through the Nigerian government to accounts controlled by a former Nigerian oil minister, Dan Etete.

Italian oil giant, Eni S.P.A, has been granted approval to subpoena asset recovery and litigation finance companies that it accused of being involved in a shady deal to fund litigation relating to Nigeria’s OPL 245 scandal in Italy.

Eni in October applied for authorisation to request that seven Delaware-registered Drumcliffe companies produce documents on the arrangements they set up for Nigeria’s OPL 245 litigation.

The energy firm had earlier hinted that the government’s actions “are driven by third parties seeking to earn illicit profits.”

The oil giant said it sought the court order to serve the companies with subpoenas for the production of documents and deposition testimony for use in the Italian court proceedings.

The seven companies are Poplar Falls, LLC; Drumcliffe Partners I LLC; Drumcliffe Partners II LLC; Drumcliffe Partners III LLC; Drumcliffe Partners III SMA I, LLC; Drumcliffe Partners IV LLC; and Drumcliffe Partners IV SMA1, LLC. They are all incorporated in Delaware, United States of America.

“Based on the memorandum of law, declarations, and other supporting documents accompanying this application, Eni S.p.A. (“Eni”) respectfully applies to this Court for an Order pursuant to 28 U.S.C. § 1782 (“Section 1782”) and Federal Rules of Civil Procedure 26, 30, and 45 granting Eni leave to serve the following entities incorporated in Delaware with subpoenas for the production of documents and deposition testimony for use in Italian court proceedings and an international investor-state arbitration: Poplar Falls, LLC; Drumcliffe Partners I LLC; Drumcliffe Partners II LLC; Drumcliffe Partners III LLC; Drumcliffe Partners III SMA I, LLC; Drumcliffe Partners IV LLC; and Drumcliffe Partners IV SMA1, LLC (together, “Respondents”),” the request reads in part.


Eni noted that its application meets the requirements of Section 1782, adding that the respondents are “found” within the district.

The narrow discovery Eni requested, it noted, is for use in proceedings before a foreign tribunal.

The application reads: “Eni, as a party to the foreign proceedings, is an “interested person”; and the application does not require disclosure of privileged materials.

“The factors set out by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), also weigh heavily in favor of Eni’s limited discovery requests.”

The oil giant said the evidence sought was likely unobtainable without the court’s assistance and that there is no indication that either the Italian court or the international arbitration tribunal will be unreceptive to the requested discovery.

Eni said it was not using the application to circumvent any proof-gathering restrictions or policies, and that the targeted discovery Eni seeks is narrowly tailored and not unduly burdensome or intrusive.

“Finally, as courts in this Circuit have recognized, Section 1782 applications made on an ex-parte basis are properly filed and routinely granted,” the company argued.

An ex-parte application is an acceptable method for seeking discovery, it said.

Request Granted

Meanwhile, in a response to Eni’s request, the court said upon consideration of the Ex Parte Application, it granted the request.

It added that Eni is “authorized, pursuant to 28 U.S.C. § 1782 and Rules 26, 30 and 45 of the Federal Rules of Civil Procedure, to serve Poplar Falls, LLC, Drumcliffe Partners I LLC, Drumcliffe Partners II LLC, Drumcliffe Partners III LLC, Drumcliffe Partners III SMA I, LLC, Drumcliffe Partners IV LLC, and Drumcliffe Partners IV SMA1, LLC (collectively, “Respondents”) with narrowly tailored subpoenas for production of documents and Rule 30(b)(6) deposition testimony regarding the requests.”

The request include the identities of the companies’ beneficial owners and/or ultimate stakeholders; their relationship to current or former Federal Republic of Nigeria officials; and any contractual and/or financial arrangements that they have entered into with respect to proceedings relating to a Nigerian oil prospecting license known as OPL 245.

The court said the deadline for the respondents to comply with the subpoena shall be thirty days from service of the subpoena.

“IT IS FURTHER ORDERED that Respondents shall preserve relevant documents in their possession, custody or control,” the court document seen by PREMIUM TIMES said.

Scandal

The Malabu scandal involves the transfer of about $1.1 billion by oil multinationals, Shell and ENI, through the Nigerian government to accounts controlled by a former Nigerian oil minister, Dan Etete.

From accounts controlled by Mr Etete, about half the money ($520 million) went to the accounts of companies jointly controlled by Abubakar Aliyu, popularly known in Nigeria as the owner of AA oil, and Mr Etete.

Anti-corruption investigators and activists suspect Mr Aliyu fronted for top officials of the Goodluck Jonathan administration as well as officials of Shell and ENI.

The transaction was authorised in 2011 by Mr Jonathan through some of his cabinet ministers, and the money was payment for OPL 245, one of Nigeria’s richest oil blocks.

Although Shell and ENI initially claimed they did not know the money would end up with Mr Etete and his cronies, evidence has shown that claim to be false.

Shell later admitted it did know the money would go to Mr Etete.

Shell, Eni, Mr Etete, Mr Aliyu and several officials of the oil firms are being prosecuted in Italy for their roles in the Malabu scandal.

Source: Premium Times

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