Law360 (October 5, 2020, 7:54 PM EDT) -- The judge overseeing Chevron foe Steven Donziger's criminal contempt case warned Monday she'll brook no delay of trial beyond Nov. 4 despite the withdrawal of yet another member of Donziger's legal team.
The disbarred attorney, who faces misdemeanor charges over his refusal last year to turn over his electronic devices and passport in an underlying case concerning a $9 billion environmental judgment he helped clients win against Chevron in Ecuador, has argued the trial should be pushed back an additional month to accommodate the availability of his desired lawyer.
Previously set for September, the trial was postponed at the last minute by an extremely reluctant U.S. District Judge Loretta Preska after two lawyers were disqualified for potential conflicts and a third hired his own counsel to argue he couldn't participate.
"You will not be permitted to manipulate the proceedings by your choice or nonchoice of counsel, so the November 4th date is a firm date," Judge Preska told Donziger at the start of the hearing.
That had not changed by the end, even after Donziger ended up losing a fourth lawyer, Martin Garbus, who during the hearing told Judge Preska she had ignored Garbus' previous disavowal of involvement. After some back and forth, Garbus said, "I formally withdraw from the case now, if there's any lack of clarity."
Judge Preska responded, "Sir, we will instruct the clerk of the court that you have withdrawn your notice of appearance." A docket note later in the day reflected that Garbus was terminated.
That leaves Donziger with only one participating attorney, Lauren Regan, a civil rights lawyer in Eugene, Oregon.
Regan insisted during the hearing she cannot undertake a criminal trial on her own in November, telling the judge her Eugene property burned in the recent large wildfires and she is doing intensive community volunteer work regarding both the fires and the upcoming election on Nov. 3, a day before the scheduled trial.
Regan said she is also reluctant to travel cross-country while the country is in the throes of a pandemic. And as for the alternative, Regan said, referencing the court's videoconferencing system, "Me trying to defend Mr. Donziger via Jabber from across the country, that just does not seem like effective assistance of counsel."
Donziger has told the court he has found a criminal defense lawyer in New York, Ron Kuby, who can be available for trial by Dec. 7.
"I need counsel that can actually do this case and can be in court," Donziger said.
But Judge Preska said trial timing is her own decision to make. At the end of the hearing, the judge's last words to Donziger were that Nov. 4 "is a firm date, make no mistake about it."
Chevron sued Donziger in the U.S. following the 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, 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 other 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.
A spokesman for Chevron said by email Monday, "The U.S. court system found that Donziger and his accomplices obtained the Ecuadorian judgment against Chevron through fraud, bribery, and corruption. Last month, 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."
On Monday, the parties also discussed the possibility of video testimony in the trial. Each side is expecting to call a number of witnesses, they said, and some of the defense witnesses are located in Ecuador.
Special prosecutor Rita Glavin of Seward & Kissel, who was appointed by Judge Kaplan to bring charges after federal prosecutors declined to do so, said she is concerned that the Ecuadorian witnesses may not respect their witness oath.
Donziger, who has been under house arrest in Manhattan for more than a year, has previously asked Judge Preska to recuse herself, saying she is biased. Judge Preska has denied the motion.
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 Bruce Goldman.
Update: This story has been updated with comment from Chevron.
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