Donziger Trial Delayed After 3rd Atty Protests 'Travesty'

By Cara Salvatore
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Law360 (September 4, 2020, 9:31 PM EDT) -- U.S. District Judge Loretta Preska granted a delay Friday in the criminal contempt trial of Chevron foe Steven Donziger after last-minute changes in his legal team prompted one of the remaining members to protest that holding trial Sept. 9 would be a "travesty of justice."

The judge yielded to pressure that mounted over the course of the week to delay the trial, which concerns Donziger's refusal of court orders stemming from his longtime fight against Chevron over pollution in the Amazon.

On Wednesday, one of Donziger's lawyers, Andrew Frisch, urged Judge Preska to excuse him from the trial on the grounds that his relationship with Donziger was "beyond repair." A second lawyer, Martin Garbus, asked to be excused Thursday.

On Friday morning, a third lawyer, Lauren Regan, told Judge Preska she could not lead the trial either.

"That we find ourselves in this situation is deeply disturbing, especially given the court's view that it is largely the result of the machinations of Mr. Donziger and his legal team (not including Mr. Frisch)," Judge Preska said in her order. "Regrettable as it is, the court concludes that it must grant Mr. Frisch's motion [to withdraw] and postpone the upcoming trial."

Setting a new trial date for Nov. 3, Judge Preska seemed to suggest that she would allow Donziger to be represented by Ron Kuby, a New York defense lawyer who had said he could be prepared to represent Donziger by December.

In an email Friday evening, Donziger said, "We are gratified that the court finally conceded the obvious and postponed what would have been a trial severely lacking in fundamental fairness where I would not have been adequately represented by counsel." 

The decision followed an intensifying flurry of protests Friday, including from Regan, of the Civil Liberties Defense Center, who said she wasn't in a position to lead the trial and told the judge her messages to Frisch were going unanswered.

Regan told Judge Preska on Friday morning she's never had a lead role in the case and is now "trying to do the work of four lawyers on short notice" after Frisch, ordered to return as a lawyer, said he couldn't, and after co-counsel Garbus said the same. Two other attorneys were disqualified in late August.

"To be clear, there is no way that I can adequately represent Mr. Donziger by myself at this time, and absolutely cannot and will not adequately try this case on September 9th — and if forced to do so, would be participating in a clear violation of Mr. Donziger's rights and an absolute travesty of justice such that it would likely violate my ethical responsibilities to my profession and to my client," Regan, who is based in Oregon, said.

Since the disqualification a week ago of two lead Donziger defense lawyers, Richard Friedman and Zoe Littlepage, "I have attempted to reach out to Mr. Frisch without success," Regan said. "I have done my best to attempt to preserve Mr. Donziger's rights as this matter is absurdly forced to trial amid a global pandemic."

Regan declined to comment on the trial delay. Earlier Friday, she told Law360 in an email, "Anything short of a postponement would clearly violate my client's constitutional rights."

Asked for comment on the delay order, Garbus told Law360 that Judge Preska was not being impartial. "She accuses his lawyers of machinations. She's supposed to be the trier of fact; she's supposed to be unprejudiced. She's already prejudged Donziger. She really should withdraw."

The contempt charges stem from Chevron's litigation against Donziger over a $9.5 billion judgment he won against the oil company in the Ecuadorian Amazon.

The same judge who instituted the contempt charges, U.S. District Judge Lewis Kaplan, found in 2014 after a bench trial that Donziger obtained the judgment through bribery. Donziger, who was recently disbarred in New York state against the recommendation of a referee, denies this. Donziger, who is also suspended in Washington, D.C., has been under house arrest in Manhattan since last summer.

A spokesman for Chevron, Sean Comey, offered no comment on the trial delay. Earlier Friday, he told Law360: "Steven Donziger is a proven liar and an adjudicated racketeer. He committed criminal acts in the U.S. and abroad in pursuit of his extortion scheme in the Ecuadorian courts. His continuing lawlessness is now a matter for prosecutors and the U.S. courts to decide. Chevron is not involved in Donziger's criminal prosecution."

Special prosecutor Rita Glavin and a lawyer for Frisch did not immediately respond to requests for comment Friday on the trial's delay.

Regan's letter followed Judge Preska's earlier cryptic response to Garbus' own request to withdraw. Garbus emailed Judge Preska late Thursday, "There is no way that I can participate ... I withdraw my notice of appearance."

Judge Preska responded Friday simply, "Mr. Garbus may continue to represent Mr. Donziger and will receive ECF notifications so long as his notice of appearance remains active."

The judge also earlier on Friday denied Donziger's motion for a jury trial, saying the counts against him aren't serious enough because they don't imply obstruction of justice, as he has argued.

The existing charges don't "satisfy the mens rea requirement" of obstruction of justice, the judge said. "Those counts accuse Mr. Donziger of 'knowingly and willfully' failing to comply with court orders, not of 'corruptly intending' to obstruct or impede the judicial proceeding."

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. Chevron later acquired Texaco and maintains Texaco fulfilled the terms of a $40 million cleanup settlement.

A court in Ecuador affirmed a judgment of roughly $8.6 billion, which has grown with legal fees and whistleblower awards.

After a weekslong bench trial in 2013, Judge Kaplan ruled in 2014 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 arbitration court ruled in a dispute between Chevron and Ecuador in 2018 that the award was tainted by fraud and bribery and that Ecuador wrongly enforced the ruling. Chevron spokesman Comey said Friday the tribunal found the judgment "should not be enforced anywhere in the world." Four levels of courts in Ecuador have upheld the judgment.

A group of prominent lawyers has formed a committee called the Donziger Case Monitoring Committee to monitor the trial, which they say constitutes retaliation against Donziger for his work to protect human rights.

Committee member Michael Tigar, a former chair of the litigation section of the American Bar Association, told Law360 via a spokeswoman Friday, before the delay was granted, "The legal world knows this case has been going on for decades and no competent lawyer could come in at the 11th hour and adequately represent Mr. Donziger. It would be malpractice."

The prosecution in the criminal case is represented by Rita Glavin, Brian Maloney and Sareen Armani of Seward & Kissel LLP.

Donziger is represented in the criminal case by Andrew Frisch of Schlam Stone & Dolan, Martin Garbus of Offit Kurman PA and Lauren Regan of the Civil Liberties Defense Center.

Andrew Frisch is represented by Harlan Protass of Protass Law.

In the civil case, Chevron is represented by Andrea Neuman, 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.

--Additional reporting by Craig Clough, Pete Brush, Stewart Bishop, Emma Cueto, Caroline Simson, Keith Goldberg, Mike Curley and Andrew Strickler. Editing by Michael Watanabe.

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

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