Donziger Questioned On His Need For Remote Trial Witnesses

By Cara Salvatore
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Law360 (October 22, 2020, 10:47 PM EDT) -- Chevron foe Steven Donziger must explain why his witnesses should be allowed to testify remotely at his upcoming criminal contempt trial, a New York federal judge said on Thursday, and the disbarred attorney also faced fresh questions about who is actually representing him.

U.S. District Judge Loretta Preska told the defendant that his requests for video testimony by nine witnesses located in Ecuador, Spain and Canada are too vague. Donziger faces trial starting Nov. 4 on misdemeanor charges initiated by a judge in Chevron's underlying civil litigation against him over a $9 billion environmental-destruction judgment in Ecuador.

"At this point, [Donziger] has not supplied enough information for the court to determine whether video testimony is warranted for any of his proposed witnesses," Judge Preska said Thursday.

The judge gave Donziger until Monday to provide "additional details on (i) the subject matter of each proposed video witness's testimony and (ii) proposed procedures for ensuring that the testimony is reliable. With respect to subject matter, Mr. Donziger must supply enough detail for the court to determine whether each witness's testimony will be 'material,'" Judge Preska said.

Special prosecutor Rita Glavin of Seward & Kissel LLP, who is bringing the charges after federal prosecutors declined to do so, opposes the video testimony "at this time," saying in a letter to the judge on Wednesday that the request lacks "specific information" as to the witnesses' relevance and reliability.

Glavin also told Judge Preska on Wednesday that Donziger appears to be fleshing out his legal team again, after recently losing numerous members.

Donziger currently has only one lawyer listed on the docket — Oregon-based Lauren Regan of the Civil Liberties Defense Center. Regan is the lone attorney left after numerous others were disqualified, hired their own counsel to fight participation or said they couldn't represent Donziger in court during a pandemic.

But Glavin said Wednesday that New York criminal defense lawyer Ron Kuby has "informed us that he is serving as 'of counsel' to Ms. Regan for this case." Kuby is Donziger's preferred counsel, but Donziger has repeatedly told the court that Kuby can't be available to lead a trial until Dec. 7.

Judge Preska has refused repeated entreaties by Donziger and Regan to delay the trial to that date and has said there will be no further delay after she reluctantly called off a scheduled Sept. 9 trial days before it was to start.

Chevron sued Donziger in the U.S. following the $9 billion Ecuador judgment and won a finding from U.S. District Judge Lewis Kaplan following a civil bench trial that the judgment was obtained via bribery and fraud.

Donziger, who has since been disbarred in New York and is moving to appeal that sanction, says Chevron "handsomely compensated" a witness who testified that the Ecuador judgment was ghostwritten. The Second Circuit upheld Judge Kaplan's findings.

Donziger's 40-some plaintiffs represent roughly 30,000 Indigenous people in the Lago Agrio region of Amazonian northern Ecuador who say Chevron predecessor Texaco left a toxic mess from the decades it was engaged in oil extraction there. Chevron says Texaco paid for $40 million worth of cleanup and has fulfilled its legal obligations.

Donziger has said Judge Preska was hand-picked by Judge Kaplan to oversee the criminal charges and is biased. She placed him under house arrest in August 2019 pending trial, and he remains there. She has refused motions to recuse herself.

Donziger has also leveled bias charges against Glavin, whose firm admitted in March it has done work for Chevron in recent years.

Prominent lawyers have formed a monitoring committee for Donziger's trial.

A Chevron spokesman couldn't be reached for comment Thursday evening but has told Law360 repeatedly that Donziger obtained the $9 billion Ecuador judgment "through fraud, bribery, and corruption."

"The District Court of The Hague upheld a unanimous award from an international tribunal which also made the same findings of fraud and, in addition, rejected the environmental allegations against Chevron, holding that the environmental claims were released by the Republic of Ecuador decades ago," Chevron spokesman Sean Comey told Law360 in recent weeks.

Donziger noted by email Thursday night that law students from Harvard University, Stanford University, Yale University and University of California, Berkeley have recently joined the fight against his house arrest, planning a Zoom protest for Oct. 29. He also said that the monitoring committee last week publicly requested that Judge Preska postpone the trial, saying a trial during a pandemic will "block Donziger's right to mount a defense."

Donziger further responded with a quote by Martin Luther King Jr.: "Every society has its protectors of status quo and its fraternities of the indifferent who are notorious for sleeping through revolutions. Today, our very survival depends on our ability to stay awake, to adjust to new ideas, to remain vigilant and to face the challenge of change."

The prosecution is represented by Rita Glavin of Seward & Kissel.

Donziger is represented by Lauren Regan of the Civil Liberties Defense Center.

The case is U.S. v. Donziger, case number 1:19-cr-00561, in the U.S. District Court for the Southern District of New York.

--Editing by Nicole Bleier.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Chevron Corporation v. Donziger et al


Case Number

1:11-cv-00691

Court

New York Southern

Nature of Suit

Racketeer/Corrupt Organization

Judge

Lewis A. Kaplan

Date Filed

February 01, 2011

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