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Law360 (July 30, 2020, 10:00 PM EDT) -- New York environmental attorney Steven Donziger on Wednesday asked the federal judge overseeing his criminal contempt case stemming from a yearslong saga with Chevron Corp. over pollution in Ecuador to delay his upcoming trial in light of logistical challenges posed by the COVID-19 pandemic.
Donziger's bench trial is scheduled to begin Sept. 9. However in a letter to U.S. District Judge Loretta Preska, his lawyer asked that the proceeding be continued until it can be conducted safely and fairly, and after certain related proceedings have been resolved.
Richard Friedman of Friedman Rubin PLLP noted that all of Donziger's attorneys and many of the expected witnesses currently reside outside of New York, and thus would be required to quarantine for 14 days upon arrival in the state, pursuant to an order by New York Gov. Andrew Cuomo issued in response to the spread of the coronavirus around the country.
"This would result in an extraordinary waste of time and money. In fact, this would be so burdensome as to effectively deprive Mr. Donziger of a fair trial," Friedman said.
Friedman further argued that many of the lawyers and witnesses in the case are among those most vulnerable to the pandemic, and travel from other parts of the country and world could risk their exposure to the virus. Moreover, he said since this a misdemeanor case over alleged civil discovery violations, it certainly isn't worth risking the heath of anyone involved.
In an order setting up briefing over the matter, Judge Preska raised the possibility that the bench trial could be conducted remotely by videoconference and asked the Seward & Kissel LLP attorneys appointed as special prosecutors in the case for their views on a virtual trial.
Friedman told Law360 that they haven't yet taken a position on Judge Preska's suggestion of a remote trial, and are thinking it through.
"Unless we agree to that process, my view of the law is that it would be almost a slam-dunk reversal if a criminal virtual bench trial was conducted over our objection," he said.
Rita Glavin of Seward & Kissel declined to comment.
The dispute is rooted in a court case in Ecuador in which Chevron was accused of polluting rivers and streams in the Amazon near an oil field in northern Ecuador, causing massive ecological damage to the region and harm to residents. A court in Ecuador ordered Chevron to pay $19 billion in 2011, though the amount was later cut in half to $9.5 billion.
U.S. District Lewis Judge Kaplan ruled in 2014 that the Ecuadorian judgment was fraudulently ghostwritten by Donziger and other members of his legal team, who had bribed a judge to sign off on it. The decision was affirmed by the Second Circuit in 2016, and the U.S. Supreme Court subsequently declined to take up the case.
Since then, Chevron has gone after Donziger in New York federal court for his purported violations of Judge Kaplan's orders, even as Donziger has traveled internationally seeking to enforce the massive judgment in other jurisdictions.
Judge Kaplan directed that criminal contempt charges be filed against Donziger for allegedly not complying with his civil court orders, which in part directed the defendant to provide access to his computers, phones, email and social media accounts for forensic inspection. After the Manhattan U.S. Attorney's office declined to prosecute the case, Seward & Kissel was tapped to act in the government's stead.
Donziger has further argued the trial should be put off pending the outcome of appellate actions in the case, including his challenge to the appointment of Seward & Kissel, citing a prior attorney-client relationship with Chevron.
The government is represented by Rita M. Glavin, Brian P. Maloney and Sareen K. Armani of Seward & Kissel LLP.
Donziger is represented by Richard Friedman of Friedman Rubin PLLP, Martin Garbus of Offit Kurman PA, Zoe Littlepage of Littlepage Booth Leckman and 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.
--Additional reporting by Emma Cueto. Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
