Law360 (August 28, 2020, 10:02 PM EDT) -- A New York federal judge has disqualified two of the four lawyers who were set to represent embattled environmental advocate Steven Donziger in a September contempt trial, increasing the chances that Donziger's former lawyer will be called back to helm the defense.
Donziger is facing criminal contempt charges tied to his refusal to comply with 2019 court orders, all stemming from his role in securing a $9.5 billion judgment against Chevron in Ecuador in the early 2010s over environmental pollution. U.S. District Judge Loretta Preska has so far refused to grant a delay in the trial, set for Sept. 9.
At a hearing Thursday, Judge Preska advised Donziger that two of his lawyers, Richard Friedman and Zoe Littlepage, may have potential conflicts relating to their 2014 correspondence in Chevron's underlying civil RICO suit against Donziger since the correspondence could be evidence in the upcoming trial.
Though Judge Preska told Donziger he could choose to waive the conflict, Donziger chose not to Thursday, so the judge disqualified Friedman and Littlepage, following up in an order Friday.
"If Mr. Donziger's other counsel — Martin Garbus and Lauren Regan — decline to appear in a manner acceptable to him or are unable to act as lead counsel, his former lead attorney, Andrew Frisch, will represent Mr. Donziger at trial beginning on September 9," the order said.
Frisch, of Schlam Stone & Dolan, had been granted a withdrawal in July "provided that his withdrawal does not affect the trial date," and Judge Preska warned him earlier this week that he might be called back. A docket note indicates Frisch was re-added as a lawyer late Friday.
Frisch did not respond to a request for comment.
Judge Preska noted Friday that she "harbors serious doubts that Mr. Donziger's decision declining to waive the potential conflict arises from a good-faith concern about prejudice to his defense rather than a desire to delay the trial date."
The bitter lawsuit between Chevron and Donziger, in which Chevron claimed the Ecuadorian judgment was unscrupulously obtained, played out before U.S. District Judge Lewis Kaplan, who held Donziger in civil contempt and also initiated the criminal contempt proceeding against Donziger after federal prosecutors declined to pursue charges.
A panel of prominent lawyers has formed a monitoring committee for the trial, saying on Aug. 17 that Donziger is "facing a campaign of retaliation for his courageous work for victims of human rights abuse," per committee member Michael Tigar, former chair of the American Bar Association's Litigation Section. The group is concerned that Chevron's efforts against Donziger will end up "giving the corporate world a successful template for crushing human rights opposition and stamping out efforts of victimized communities seeking access to legal remedy."
Donziger told Law360 on Friday that the trial, if it goes forward, will be immediately followed by a Second Circuit argument set for Sept. 15 in a different but closely related case over the civil contempt findings by Judge Kaplan.
Donziger said the hearing relates to the same back story that forms the basis for his upcoming trial. "If it goes my way, it really undermines the entire basis of Judge Kaplan's theory regarding several of the contempt counts, including the most important one, related to my computer and cell phone," Donziger said. He disobeyed court orders last year to hand them over to a forensic investigator.
Donziger was recently disbarred in New York state, against the recommendation of a neutral referee, and is suspended in Washington, D.C.
Meanwhile, Donziger has also asked Judge Preska, who has been planning a bench trial, to hold a jury trial. The contempt charges against him are not "petty," he said, and are not subject to any exceptions applying to the constitutional right to a trial by jury.
After the U.S. attorney's office declined to prosecute Donziger on contempt, Judge Kaplan appointed a former prosecutor, Rita Glavin, now of Seward & Kissel, to continue pursuing the charges. Glavin's team opposes delaying the trial.
Glavin and a lawyer for Chevron, Randy Mastro, did not respond to requests for comment.
Donziger has said that Judge Kaplan "hand selected" a law firm with ties to Chevron to press the contempt charges and has petitioned the Second Circuit for a writ of mandamus regarding the propriety of the Seward & Kissel team's role.
A Seward & Kissel partner, Mark Hyland, notified the court on March 24 that Chevron was a client of the firm for two matters in 2016 and 2018, but added that there were no "conflicts that would preclude the appointment of" the three special prosecutors months before.
Donziger has also asked for his contempt trial to be stayed while the Second Circuit decides on the writ of mandamus, but on Thursday, the Second Circuit denied his motion for a stay.
The developments are the latest in a long fight that began in Amazonian Ecuador on the Colombian border, where 46 plaintiffs representing some 30,000 indigenous people said Chevron needed to pay for remediation of environmental harm from at least 100 oil pit sites created by a joint venture between Texaco and Ecuador, running from roughly the 1970s to the early 1990s and allegedly causing widespread ecological damage to the region and sickening residents. Chevron later acquired Texaco and maintains Texaco fulfilled cleanup obligations.
Donziger and his 46 Lago Agrio-based plaintiffs sued in the U.S. in 1993 and then, when the case was dismissed on forum grounds, refiled in Ecuador. A court in Ecuador ordered Chevron in 2011 to pay $17.292 billion, but an appeals court there erased the punitive damages, leaving it at $8.646 billion, according to a Second Circuit summary of the case in a lengthy 2016 ruling.
Legal fees and whistleblower awards brought the final tab to $9.5 billion.
U.S. District Judge Lewis Kaplan ruled in 2014, after a weekslong bench trial in 2013, that the Ecuador judgment was ghostwritten by Donziger and was the product of bribery in the South American nation. The Second Circuit affirmed that decision.
An international tribunal in The Hague concluded in 2018 that the judgment was tainted by fraud and bribery and that Ecuador wrongly enforced the ruling. Four levels of courts in Ecuador have upheld the judgment.
Donziger has been under house arrest in Manhattan since last summer. A pair of former federal judges wrote in a column for Law360 that he may be "the only lawyer in the U.S. ever held in confinement, pretrial, on a contempt charge."
The prosecution is represented by Rita Glavin, Brian Maloney and Sareen Armani of Seward & Kissel LLP.
Donziger is represented by Martin Garbus of Offit Kurman PA and Lauren Regan of the Civil Liberties Defense Center.
Chevron is represented by Randy Mastro and Ted Olson of Gibson Dunn & Crutcher LLP.
The cases are U.S. v. Donziger, case number 1:19-cr-00561, and Chevron v. Donziger, case number 1:11-cv-00691, in the U.S. District Court for the Southern District of New York, and Chevron v. Donziger, case number 20-1940, in the U.S. Court of Appeals for the Second Circuit.
--Additional reporting by Stewart Bishop, Emma Cueto, Caroline Simson, Keith Goldberg, Mike Curley and Andrew Strickler. Editing by Steven Edelstone.
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