Chevron Corporation v. Donziger et al

Filing 2491

ORDER denying 2463 Motion to Dismiss; denying 2463 Motion for Disclosure; denying 2463 Motion to Disqualify Counsel. ; denying 2463 Motion to Disqualify Judge. To the extent they are not addressed above, the Court has considered Mr. Donziger's remaining arguments and finds them unavailing. For the foregoing reasons, Mr. Donziger's pretrial motions are DENIED. SO ORDERED. (Signed by Judge Loretta A. Preska on 5/7/2020) (va)

Case 1:11-cv-00691-LAK-RWL Document 2491 Filed 05/07/20 Page 1 of 25

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
19 Cr. 561 (LAP)
11 Civ. 691 (LAK)

-againstSTEVEN DONZIGER,

ORDER

Defendant.
LORETTA A. PRESKA, Senior United States District Judge:
Defendant Steven Donziger faces six charges of criminal
contempt under 18 U.S.C. § 401(3), which authorizes district
courts to punish acts involving “disobedience or resistance to
[the court’s] lawful writ, process, order, rule, decree, or
command.”

(See Order to Show Cause, dated July 30, 2019, 19 Cr.

561 (“Cr. dkt.”), dkt. no. 1.)

Mr. Donziger now moves to (1)

disqualify all judges from the Southern District of New York
(“S.D.N.Y.”), and particularly the undersigned, from presiding
over this case or to have a jury empaneled if an S.D.N.Y. judge
presides; (2) disqualify the special prosecutors based on their
law firm’s ties to the oil and gas industry and Chevron
Corporation (“Chevron”); and (3) dismiss the contempt charges
with prejudice.

(See Steven Donziger’s Motions for Relief dated

Feb. 27, 2020 (“Def. Mot.”), Cr. dkt. no. 60.)

For the reasons

set forth below, Mr. Donziger’s motions are DENIED.

1

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I.

BACKGROUND
This criminal contempt case is an offshoot of the civil

action Chevron Corp. v. Donziger, 11 Civ. 691 (S.D.N.Y.), over
which Judge Lewis A. Kaplan presides.

That case’s procedural

history is nearing galactic proportions, counting almost 2,500
docket entries as of the date of this order.

Given the nature

of Mr. Donziger’s motions in this contempt case, however, only a
high-level overview is needed to give context for this decision.1
In 2011, Chevron initiated a civil lawsuit against Mr.
Donziger alleging that he obtained an $8.6 billion judgment in
Ecuador against Chevron through fraudulent and corrupt means.
In 2014, following a lengthy trial, Judge Kaplan issued a
decision and judgment in Chevron’s favor against Mr. Donziger
and others.

Chevron Corp. v. Donziger, 974 F. Supp. 2d 362

(S.D.N.Y. 2014).

Among other things, the judgment enjoined Mr.

Donziger from enforcing the Ecuadorian judgment in the United
States or attempting to profit from it and directed Mr. Donziger
to transfer to Chevron all property that he had or might later
obtain that could be traced to the Ecuadorian judgment.

(See

Chevron v. Donziger, 11 Civ. 691 (S.D.N.Y.) (“civ. dkt.”), dkt.
no. 1875.)

In 2018, after the Court of Appeals affirmed Judge

1
The following facts are taken from the parties’ submissions
and the filings in the underlying civil case.

2

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Kaplan’s decision and the Supreme Court denied certiorari, Judge
Kaplan issued a supplemental judgment awarding Chevron
$813,602.71 in costs against Mr. Donziger and others.

(See civ.

dkt. no. 1962.)
In 2018, Chevron initiated post-judgment discovery to
identify assets available to enforce its judgment against Mr.
Donziger and to assess his compliance with the judgment’s
injunctive provisions.
2009, 2022.)

(See civ. dkt. nos. 1966, 1968, 2006,

Mr. Donziger strenuously objected to many of

Chevron’s discovery requests, ultimately leading Judge Kaplan to
enter an order finding that given Mr. Donziger’s persistent
stonewalling, he should turn over his electronic devices to a
forensic expert so they could be imaged and examined for
responsive documents.

(Civ. dkt. no. 2108.)

On October 25,

2018, Mr. Donziger submitted a letter explaining that he would
be “unable to comply” with Judge Kaplan’s orders, as doing so
would give Chevron “near wholesale access to [his] confidential,
privileged, and protected documents, without any legitimate
basis.”

(See civ. dkt. 2118.)

Mr. Donziger’s letter expressly

invited Judge Kaplan to hold him in contempt so that he could
seek relief on various issues in the Court of Appeals.

(Id.)

On March 5, 2019, Judge Kaplan issued an order establishing
a protocol (the “ESI protocol”) to govern the collection,
imaging, and examination of Mr. Donziger’s electronic devices.

3

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(Civ. dkt. 2172.)

The order directed Mr. Donziger first to

provide a list of all his electronic devices and accounts to an
appointed forensic expert and then to turn over his devices to
the expert for imaging.

(Id. ¶ 4.)

Mr. Donziger did not comply

with either directive and informed the forensic expert by e-mail
that he had no intention of following Judge Kaplan’s order.
(Civ. dkt. no. 2173-1.)

In his e-mail, Mr. Donziger again

advised that he would “voluntarily go into civil contempt” in
order to obtain appellate review and would “not be producing
documents until [his] due process rights were respected.”

(Id.)

In orders entered on May 23 and June 4, 2019, Judge Kaplan
found Mr. Donziger in civil contempt for his refusal to comply
with the ESI protocol and for several additional acts of
disobedience.

(See civ. dkt. no. 2209; civ. dkt. no. 2222.)

Specifically, Judge Kaplan concluded that Mr. Donziger had
violated the civil judgment’s injunctive terms by failing to
transfer his rights to certain contingency fees on the
Ecuadorian case and by pledging his interest in fees from that
case in exchange for personal services.
at 36-40, 18-19.)

(See civ. dkt. no. 2209

Judge Kaplan further found that Mr. Donziger

had violated a restraining notice Chevron served on him in an
effort to enforce its money judgment.

(Id. at 58-61.)

Judge Kaplan took several measures to coerce Mr. Donziger’s
compliance with the disobeyed orders.

4

First, the May 23 and

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June 4 contempt orders imposed escalating fines that would stop
accruing once Mr. Donziger purged certain of his contempts.
(See id. at 65, 69-71; civ. dkt. no. 2222.)

Second, Judge

Kaplan issued an order directing Mr. Donziger to surrender his
passport(s) to the Clerk of the Court.

(Civ. dkt. no. 2232.)

On June 12, 2019, Mr. Donziger filed an emergency motion to
stay the fines and sanctions against him pending appeal.
dkt. no. 2234.)

(Civ.

On June 28, 2019, Judge Kaplan suspended the

fines from accumulating further, and on July 2, 2019, he entered
an order granting in part and denying in part Mr. Donziger’s
emergency motion.

(Civ. dkt. nos. 2252, 2254.)

In that order,

Judge Kaplan directed Mr. Donziger to surrender his passport(s)
and declined to stay the outstanding order for Mr. Donziger to
identify and produce his devices to the forensic expert.
dkt. no. 2254.)

(Civ.

However, Judge Kaplan granted the stay with

respect to the parts of the ESI protocol that would have
permitted the disclosure of Mr. Donziger’s data to Chevron,
provided that Mr. Donziger file his appeal papers by no later
than July 31, 2019.

(Id.)

Mr. Donziger did not comply with that order.

He failed to

produce his devices to the forensic expert, failed to surrender
his passport(s) to the Clerk, and failed to file his appellate
brief by July 31 so as to trigger the conditional stay.

5

(See

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Government’s Opposition to Mr. Donziger’s Pre-Trial Motions,
dated Mar. 23, 2020 (“Opp.”), cr. dkt. no. 62 at 11-12.)
On July 31, 2019, Judge Kaplan issued an order under
Federal Rule of Criminal Procedure 42 directing Mr. Donziger to
show cause why he should not be held in criminal contempt in
violation of 18 U.S.C. § 401(3).

(Civ. dkt. no 2276.)

The

order to show cause, which was made returnable before the
undersigned, cited six charges for criminal contempt.

The first

two concern Mr. Donziger’s violation of the ESI protocol; the
third concerns his failure to surrender his passports; and the
fourth through sixth concern his violation of the civil
judgment’s injunctions on profiting from, and transferring
interests traceable to, the Ecuadorian judgment.

(Id.)

Alongside the order to show cause, Judge Kaplan issued an
order appointing Rita M. Glavin, Brian Maloney, and Sareen
Armani -- private attorneys associated with the law firm Seward &
Kissel LLP (“Seward”) -- as special prosecutors in this criminal
contempt case.

(See civ. dkt. no. 2277.)

The order noted that

Judge Kaplan had previously tendered Mr. Donziger’s prosecution
to the United States Attorney for the Southern District of New
York, but the United States Attorney’s office “respectfully
decline[d] on the ground that the matter would require resources
that [it did] not readily have available.”

6

(Id.)

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On August 6, 2019, the Court arraigned Mr. Donziger, and he
entered a plea of “not guilty.”

(See August 6, 2019 Hearing

Transcript, cr. dkt. no. 18, at 12:24)

On February 27, 2020,

Mr. Donziger filed the pretrial motions now before the Court.
II.

DISCUSSION
a. Judicial Disqualification Motions
i.

Motion to Disqualify the Entire S.D.N.Y. Bench

In his first motion, Mr. Donziger seeks to disqualify every
S.D.N.Y. judge from presiding over this case under 28 U.S.C.
§ 455(a).

That provision requires judges to recuse themselves

from proceedings in which their “impartiality might reasonably
be questioned.”

28 U.S.C. § 455(a).

The key question on a

judicial recusal motion is whether “a reasonable person, knowing
all the facts, [would] conclude that the trial judge’s
impartiality could reasonably be questioned.”
Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992).

United States v.
“Or phrased

differently, would an objective, disinterested observer fully
informed of the underlying facts entertain significant doubt
that justice would be done absent recusal?”

Id.

On an objective view of the facts, there is no basis for
disqualifying the entire S.D.N.Y. bench here.

In substance, Mr.

Donziger’s position is that all judges of the S.D.N.Y. are
disqualified from presiding over his case because their
colleague, Judge Kaplan, is “so associated” with the underlying

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civil litigation that feelings of loyalty towards him will
corrupt their ability to rule impartially.
14-15.)

(See Def. Mot. at

In United States v. Cutler, 796 F. Supp. 710 (E.D.N.Y.

1992), another criminal contempt case, the court considered and
denied a similar motion seeking disqualification of the entire
Eastern District of New York bench, observing that “[a]ll
judges, whether trial or appellate, are called upon on an almost
daily basis to review the decisions of other judges; it is a
routine part of their work and friendship or collegiality plays
no part in their decisions.”

Id. at 714.

The Court fully

agrees with that assessment.

Reviewing the decisions of fellow

judges is, simply put, part of the judicial job description.

To

the extent such a review is called for here, it is neither
extraordinary nor grounds for recusal.2

The motion to disqualify

the S.D.N.Y. bench is therefore denied.
The Court must also address two subsidiary requests related
to Mr. Donziger’s S.D.N.Y.-wide recusal motion.

First, Mr.

Donziger moves under Federal Rule of Criminal Procedure 21(a) to
transfer this case to a district court outside the Second
Circuit so that a judge unacquainted with Judge Kaplan may
preside.

(Def. Mot. at 15.)

Rule 21(a) mandates transfer when

2
At bottom, however, the review here is of Mr. Donziger’s
actions or inactions.

8

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there is a risk “that the defendant cannot obtain a fair and
impartial trial” in the transferring district.
21(a).

Fed. R. Crim. P.

This rule is meant for cases where “prejudice . . . will

make it difficult or impossible to select a fair and impartial
jury,” not cases where “it is claimed that the judge is biased.”
2 Charles Alan Wright et al., Federal Practice & Procedure § 343
(4th ed. 2019) (emphasis added).

Mr. Donziger does not argue

that it would be difficult to empanel an impartial jury here -- he
instead argues that transfer is required because he would not
receive a fair bench trial in the Southern District of New York.
But judicial bias is not grounds for a Rule 21(a) transfer, and,
even if it were, for the same reasons set out regarding
disqualification of the entire S.D.N.Y. bench, there is no risk
that Mr. Donziger will not receive a fair trial before this
Court.

Accordingly, the request for a transfer to another

district is denied.
Second, Mr. Donziger requests a jury trial if an S.D.N.Y.
judge presides over his case.

(Def. Mot. at 16-17.)

He does

not dispute, however, that contempt defendants charged under 18
U.S.C. § 401 are not entitled to a jury trial when the possible
punishment does not exceed six-months incarceration or a $5,000
fine.

See, e.g., United States v. Twentieth Century Fox Film

Corp., 882 F.2d 656 (2d Cir. 1989).
depart from that rule here.

There is no reason to

If the Court concludes before trial

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that, in the event of a conviction, it would not impose a
sentence above the six-month or $5,000 thresholds, Mr. Donziger
will receive a bench trial.

Mr. Donziger’s request for a jury

trial is therefore denied subject to renewal pending the Court’s
determination of the potential sentencing and fine range.
ii. Motion to Disqualify the Court
Alongside his motion to disqualify all S.D.N.Y. judges, Mr.
Donziger specifically moves for this Court’s recusal on grounds
that Judge Kaplan should not have transferred this case to the
undersigned after he purportedly recused himself from it.
Def. Mot. at 15-16.)

(See

As support for his argument, Mr. Donziger

cites Rule 16 of the S.D.N.Y. Rules for the Division of Business
Among District Judges (“RDB”), which states that “[i]f a judge
is disqualified or if a judge has presided at a mistrial or
former trial of the case, and requests reassignment, the
assignment committee shall transfer the case by lot.”

This

argument fails for two reasons.
First, a court’s failure to follow the RDB’s prescribed
procedures gives parties no basis for relief.

As their preamble

makes clear, the RBD rules “are adopted for the internal
management of the case load of the court and shall not be deemed
to vest any rights in litigants or their attorneys.”

S.D.N.Y.

Loc. R. at 105 (emphasis added); see also, e.g., United States
v. Brennerman, No. 17 Cr. 155 (LAK), 2017 WL 3421397, at *10 &

10

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n. 105-06 (S.D.N.Y. Aug. 8, 2017) (“[T]he RDB vest no rights in
litigants -- they are for internal management only.”) (collecting
cases).

Although Mr. Donziger recognizes that he has no rights

under the RDB, he contends nonetheless that the abstract
“principle of law” that the RBD embodies requires random
reassignment of this case.

(Def. Mot. at 15-16.)

He cites no

authority for that theory, and the Court rejects it.
Second, even if a recused judge were required to transfer
his or her case by random assignment, that rule would not apply
here, as Judge Kaplan never recused himself.

(See Hon. Lewis A.

Kaplan’s Response to Petition for a Writ of Mandamus, Donziger
v. Chevron Corp., No. 20-464, dkt. no. 28 (2d Cir. Mar. 11,
2020) (“Mandamus Pet. Resp.”) at 18 n.54, 44-47.)

To the extent

Mr. Donziger claims that Judge Kaplan had an obligation to
recuse himself, he is mistaken.

Federal Rule of Criminal

Procedure 42, the basis for this contempt case, mandates recusal
only when the “contempt involves disrespect or criticism of a
judge.”

Fed. R. Crim. P. 42(a)(3).

The recusal requirement is

not triggered where, as here, criminal contempt charges flow
from an allegedly willful disobedience of court orders.

See

Goldfine v. United States, 268 F.2d 941, 947 (1st Cir. 1959)
(noting that Rule 42 has no mandatory disqualification provision
and that it is “routine” for the judge who issues the disobeyed
order to preside over the contempt trial).

11

Given that Judge

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Kaplan was not required to recuse himself, there is no merit to
Mr. Donziger’s contention that his decision to transfer this
case to the undersigned was somehow inappropriate.3
b. Motion to Disqualify the Special Prosecutors
Mr. Donziger next seeks to disqualify the prosecutors whom
Judge Kaplan appointed under Federal Rule of Criminal Procedure
42 after the U.S. Attorney’s office declined to prosecute this
case.4

Mr. Donziger argues that the relationship between their

firm (Seward) and Chevron and the oil and gas industry creates a
conflict of interest which undermines their ability to serve as
disinterested prosecutors.

(See Def. Mot. at 17-24; Reply

Memorandum of Law, dated Apr. 10, 2020 (“Reply”), cr. dkt. no.
65 at 5-12.)

That motion is also denied.

3
Mr. Donziger also asks the Court to “disclose how Judge
Kaplan transferred [this] case and what information was relayed
in doing so.” (Def. Mot. at 16.) That request is denied. As
far as the Court is aware, there is no rule of law that entitles
a defendant to serve discovery demands on the presiding judge.
In any event, the mandamus papers Judge Kaplan filed in one of
Mr. Donziger’s appeals describes how this case arrived on the
Court’s docket. (See Mandamus Pet. Resp. at 17-19, 46-47
(explaining that this case came to the Court under RBD Rule 14,
which provides that “[a]ny judge, upon written advice to the
assignment committee, may transfer directly any case or any part
of any case on that judge’s docket to any consenting judge”).
There is nothing improper about that transfer nor any reason for
further disclosure.
4

Rule 42 provides, in relevant part, that “[t]he court must
request that the contempt be prosecuted by an attorney for the
government” and that “[i]f the government declines the request,
the court must appoint another attorney to prosecute the
contempt.” Fed. R. Crim. P. 42(a)(2).

12

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The parties appear to agree that Young v. United States ex
rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) is the key
authority on conflict issues involving special criminal contempt
prosecutors.

In Vuitton, a group of civil litigants resolved a

lawsuit by entering a settlement that enjoined the defendants
from infringing plaintiff’s trademarks.

Id. at 790-91.

After

the settlement, plaintiffs uncovered evidence that the
defendants were scheming to violate the injunction and raised it
to the district court, which appointed the plaintiff’s lawyers
as special prosecutors to bring a criminal contempt case against
the defendants.

Id. at 791-92.

A jury convicted defendants,

and the Court of Appeals affirmed the conviction, rejecting
defendants’ argument that the district court violated
defendants’ right to have an impartial prosecutor by appointing
plaintiff’s lawyers as the special prosecutors.

Id. at 792-93.

On appeal, the Supreme Court reversed, holding that
conflicts of interest rendered the appointment improper.
787-88.

Id. at

The Court explained that when lawyers for an interested

party act as special prosecutors, they are torn between serving
“two masters” -- the Government, on the one hand, whose sole
interest is the “vindication of the court’s authority,” and the
lawyer’s private client, on the other, who may have divergent
objectives.

Id. at 803-05, 814.

That structural conflict may

create perverse incentives, as the lawyers could, for example,

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“be tempted to bring a tenuously supported prosecution if such a
course promises financial or legal rewards for the private
client.”

Id. at 805.

The Court explained that even if the

interested prosecutors never commit any misconduct, their
appointment still creates the “potential for private interests
to influence the discharge of public duty” and that “appearance
of impropriety” alone is intolerable.
in original).

Id. at 805-06 (emphasis

Vuitton therefore “stressed that a prosecutor

seeking a contempt conviction must be both impartial in fact and
appear to be so.”

F.T.C. v. Am. Nat’l Cellular, 868 F.2d 315,

319 (9th Cir. 1989).
Mr. Donziger flags a few factual predicates that, in his
view, require disqualifying the special prosecutors here.
Def. Mot. at 17-24; Reply at 5-12.)

(See

First, he notes that Seward

has clients with kinship to the oil industry, including (1)
shipping clients that do business with major oil companies like
Chevron, and (2) clients who have received funding from Oaktree
Capital Management, a financial services firm with two directors
who have served on Chevron’s corporate board.
20.)

(Def. Mot. at 17-

Mr. Donziger argues that given his status as the “Scourge

of Big Oil” and the deeply bitter nature of his civil litigation
with Chevron, the indirect links between Seward and Chevron
“create a financial conflict of interest,” as Seward would not
“want to act contrary to the interests of the few controlling

14

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large industry oil and gas companies and related entities.”
(See id. at 21, 23 (quoting Declaration of Prof. Ellen
Yaroshefsky, dated Feb. 22, 2020 [dkt. no. 60-2] ¶¶ 50-51).)
The other factual predicate for disqualification comes from
a declaration the special prosecutors filed describing Seward’s
previous attorney-client relationship with Chevron.

(See Decl.

of Mark J. Hyland, dated Mar. 23, 2020 (“Hyland Decl.”) [dkt.
no. 62-1].)

In that declaration, Seward’s Co-General Counsel

states that Seward prepared corporate forms and issued related
legal opinions for two Chevron foreign affiliates in 2016 and
2018.

(Id. ¶ 4.e & g.)

Those engagements were Seward’s only

work for Chevron in the last ten years and generated around
$30,000 in legal fees and disbursements, amounting to less than
0.1% of Seward’s 2016 and 2018 revenues.

(Id. ¶ 4.h.)

Despite

the minimal nature of that work, Mr. Donziger argues that it
creates a conflict of interest requiring the special
prosecutors’ removal.

(See Reply at 5-12.)

Considering the facts through the lens of Vuitton,
disqualification is unwarranted.

First, the theory that Seward

has a financial conflict based on its clients’ ties to Chevron
is wholly unconvincing.

Even if Seward’s clients do a large

volume of business with Chevron and other oil companies, Mr.
Donziger makes no effort to explain how those clients could be
made better off or worse off or affected in any way whatsoever

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depending on how the special prosecutors go about this case.

In

that sense, the situation here is nothing like Vuitton, where
the prosecutors had levers they could readily pull to promote
their client’s financial interests.5

Here, on the other hand, no

scenario presents itself in which financial rewards for Seward’s
clients might trickle down from the special prosecutors’
decisions.

To the extent Mr. Donziger argues that the

prosecutors might come at him harder than they otherwise would
to indulge their shipping clients, who may generally like to see
Chevron happy, that theory is far too attenuated to justify
relief.

The ties between Seward’s clients and Chevron and the

oil industry create no conflicts of interest, real or potential,
of the ilk Vuitton warned against.
Mr. Donziger’s argument regarding Seward’s former attorneyclient relationship with Chevron is stronger, but it fails, too,
because that relationship still does not raise the impartiality
problems that necessitated disqualification in Vuitton.
As an initial matter, the fact that Seward is not currently
serving as Chevron’s counsel takes most of the steam out of Mr.

5
In Vuitton, the contempt charges involved breach of an
agreement that contained a sizeable liquidated damages clause in
favor of the special prosecutors’ client. 481 U.S. at 805-06.
The Supreme Court noted that the prospect of triggering that
damages payout “had the potential to influence” the prosecutors’
decisions on who to prosecute, who to offer a plea bargain, and
who to offer immunity in exchange for cooperation. Id.

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Donziger’s motion.

In Vuitton, unlike here, the lawyers were

simultaneously serving as prosecutors and as plaintiff’s counsel
in underlying civil litigation.

Given that posture, there was

no way to insulate the lawyers’ duty of loyalty to the civil
plaintiff from infecting their decision-making in the criminal
contempt case.

See Vuitton, 481 U.S. at 806.

The Supreme Court

noted, for example, that because they were wearing two hats at
the same time, the lawyers might be tempted to exercise their
investigatory powers in the contempt case to collect evidence
for later use in civil litigation or to wield the civil claims
as leverage for obtaining guilty pleas.
dangers here.

Id.6

There are no such

Chevron is not a current Seward client, so there

is no risk that the prosecutors might be tempted into using this
case to further Chevron’s interests elsewhere or into exercising
their powers in service of any objective besides justice.
As Mr. Donziger points out, however, former attorney-client
relationships can still theoretically give rise to conflicts for
special prosecutors.

(See Reply at 5-7.)

The clearest danger

6
Other courts examining Vuitton issues have identified
similar risks. For instance, in F.T.C. v. American National
Cellular, 868 F.2d 315, 319 (9th Cir. 1989), the Ninth Circuit
explained that civil-litigants-turned-prosecutors cannot act
impartially when their dual roles might tempt them to prosecute
“to obtain documents or access to information useful in the
underlying civil litigation” or “to abandon, press, or
compromise a prosecution wholly apart from its merits to
leverage settlement in the underlying litigation.”

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zone involves disclosure conflicts.

Suppose, for example, that

while Seward was serving as Chevron’s counsel, it had received a
privileged message containing material, exculpatory evidence as
to Mr. Donziger.

In that instance, the special prosecutors

presumably would find themselves in a bind, as they could not
simultaneously respect Chevron’s right to keep the message
confidential and Mr. Donziger’s right to disclosure under Brady
v. Maryland, 373 U.S. 83 (1963).

The Court agrees that the risk

of a conflict like that would compel disqualification.
While that is an interesting hypothetical, there is no risk
of its coming to pass here, as Seward’s prior work for Chevron -completing corporate forms and opinion letters for Chevron’s
foreign affiliates -- has absolutely nothing to do with this case.
Indeed, Mr. Donziger’s attempts to connect this prosecution and
Seward’s prior Chevron engagements border on the absurd.

First,

he suggests that Seward’s work for Chevron might be relevant to
“the efforts of Mr. Donziger’s Ecuadorian clients to untangle
Chevron’s foreign structure.”

(See id. at 4, 6.)

Mr. Donziger

does not even try to explain why he would be entitled to that
kind of information here.

That the details of Chevron’s foreign

corporate structure might be of use to his Ecuadorian clients is
totally irrelevant and creates no conflict in this case.
Next, Mr. Donziger implies that privilege issues could
prevent the special prosecutors from disclosing whether “Chevron

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or its agents have provided false or misleading information in
support of the pending criminal charges.”

(Id. at 7.)

For that

conflict to arise, Seward would have needed to have received
privileged information related to Mr. Donziger’s case during the
course of its attorney-client relationship with Chevron.

See In

re Cty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007) (“[A]ttorneyclient privilege protects confidential communications between
client and counsel for the purpose of obtaining or providing
legal assistance.” (citation omitted)).
prepare corporate forms.

Chevron hired Seward to

The idea that such an engagement might

have involved disclosure of information even marginally relevant
to Mr. Donziger is too farfetched to merit serious attention.
Because Seward’s earlier work for Chevron could not have touched
on any topics germane to this case, the Court finds no potential
conflicts that could constrain the prosecutors from discharging
their disclosure obligations to Mr. Donziger.
As one final point, the Court notes that Seward’s past work
for Chevron was de minimis.

In the last decade, Seward handled

only two Chevron matters -- one in 2016 and one in 2018 -- and they
generated less than 0.1% of the firm’s revenues in those years.
(Hyland Decl. ¶ 4.e-h.)

The Court recognizes that a conflict or

at least an appearance of impropriety could arise in situations
where the former client accounted for a non-trivial portion of
the law firm’s income or otherwise had a tight-knit relationship

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with the firm.

In that circumstance, gratitude for past

business or an appetite for future business could potentially
color the prosecutor’s decisionmaking.
present here.

That danger is not

In light of the extremely limited scope of

Seward’s work for Chevron, their former relationship does not
risk a conflict for the prosecutors or otherwise give rise to an
appearance of impropriety.

Mr. Donziger’s motion to disqualify

the special prosecutors is therefore denied.7
c. Motion to Dismiss the Contempt Charges
Having resolved the various disqualification motions, the
Court now turns to Mr. Donziger’s motion to dismiss the charges.
Many of Mr. Donziger’s arguments can only be resolved at
trial on a more fully developed factual record.

In particular,

Mr. Donziger argues that (1) he lacked the intent needed to
support a contempt conviction, (2) at least one of the orders he
allegedly violated was ambiguous, and (3) he would have suffered
irreparable harm if he complied with orders requiring disclosure
of constitutionally protected or privileged information. (See

7
Mr. Donziger also asks the Court to (1) dismiss the charges
against him because the prosecutors waited too long to disclose
Seward’s prior relationship with Chevron, or (2) compel Seward
to disclose further details regarding its Chevron work. (Reply
at 5, n. 3, n. 7.) Both requests are denied. Mr. Donziger has
not demonstrated any prejudice from the timing of the
Seward/Chevron disclosure that would justify outright dismissal,
and the information Seward already provided makes clear that the
prior Chevron matters create no potential conflicts for the
special prosecutors. No further information is needed.

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Def. Mot. at 25-26, 28, 30.)

These arguments all involve fact

questions the Court cannot resolve at this juncture and are thus
not grounds for dismissal.

See e.g., United States v. Cutler,

815 F. Supp. 599, 610 (E.D.N.Y. 1993) (“[W]hether these . . .
statements really were the result of defendant’s willful
violation of a clear and definite order is a question of fact
that must await a trial on the merits.”).
Mr. Donziger’s remaining arguments are all unavailing.
First, he contends that some of the criminal charges were
unwarranted because he purged the underlying contempt by taking
corrective action before Judge Kaplan issued the order to show
cause.

(See Def. Mot. at 24, 32-33.)

This argument fails

because it misunderstands the crucial distinction between civil
contempt, which serves to coerce compliance with an outstanding
order, and criminal contempt, which punishes the contemnor for a
“completed act of disobedience.”

See International Union,

United Mine Workers of America v. Bagwell, 512 U.S. 821, 829
(1994) (citation and internal quotation marks omitted).

In the

same way that a car theft defendant cannot extricate himself
from exposure by eventually returning the stolen vehicles, a
contempt defendant is not entitled to dismissal because he
eventually complied with the previously disobeyed orders.
Donziger’s purging theory therefore fails.

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Mr.

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Mr. Donziger next argues that some of his alleged contempt
was “benign” or “too trivial” for criminal sanctions.
Mot. at 24.)

This argument is meritless.

(See Def.

Mr. Donziger cites no

authority for the proposition that only the most egregious
contempts warrant criminal charges, and the Court is aware of
none.

To the contrary, the case law acknowledges that criminal

contempt includes “a broad range of conduct, from trivial to
severe.”

United States v. Carpenter, 91 F.3d 1282, 1284 (9th

Cir. 1996).

That the defendant pegs the contempt at the lower

end of that spectrum is not a basis for dismissing his charges.
Third, Mr. Donziger argues that Judge Kaplan’s resort to
criminal charges conflicts with the “principle that only the
least possible power adequate to the end proposed should be used
in contempt cases.”

Young v. United States ex rel. Vuitton et

Fils S.A., 481 U.S. 787, 801 (1987) (citation, quotation marks,
and alterations omitted).

From the facts set forth in the

parties’ papers, however, it appears that Mr. Donziger left
Judge Kaplan with no real option other than criminal charges.
Mr. Donziger is alleged to have repeatedly defied court orders,
openly invited civil contempt, and refused to budge even when
faced with coercive sanctions.

That course of conduct gives “no

basis for thinking that more orders, warnings, or threats would
have produced improvement.”

In re Holloway, 995 F.2d 1080, 1087

(D.C. Cir. 1993); see also In re Levine, 27 F.3d 594, 595 (D.C.

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Cir. 1994) (“When the presiding judge makes serious and repeated
efforts to require a lawyer to abide by the judge’s orders, it
is difficult to discern ‘what lesser remedy [the judge] could
have reasonably employed.’” (quoting Holloway, 995 F.2d at
1087)).

The Court therefore disagrees that contempt charges

were excessive or unwarranted under the circumstances alleged.
Lastly, Mr. Donziger argues that because some of his
allegedly contemptuous acts reflected “persistent, ethicallygrounded and strenuous advocacy,” his case is similar to In re
McConnell, 370 U.S. 230 (1962), which reversed the contempt
conviction of a lawyer who insisted on pursuing a forbidden line
of questioning at trial.

McConnell is inapposite, however, as

it addresses the requirements for contempt under 18 U.S.C.
§ 401(1), which prohibits in-court acts that “obstruct the
administration of justice,” not § 401(3), the statute Mr.
Donziger is charged under, which prohibits “disobedience” of
lawful court orders.

See McConnell, 370 U.S. at 233.

Moreover,

Mr. Donziger is mistaken in suggesting that McConnell condones
“ethically-grounded” defiance of court orders.
at 24.)

(See Def. Mot.

Criminal contempt jurisprudence has no safe harbor for

conscientious objectors.

Indeed, the law is clear that “a party

may not challenge a court’s order by violating it” -- instead, “he
must move to vacate or modify the order, or seek relief [in the
Court of Appeals].”

United States v. Cutler, 58 F.3d 825, 832

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(2d Cir. 1995).

Accordingly, McConnell does not provide any

grounds for dismissing the charges against Mr. Donziger.
d. Disclosure of the Government’s Communications with
Gibson Dunn & Crutcher LLP
In his final pretrial motion, Mr. Donziger requests an
order under Brady v. Maryland, 373 U.S. 83 (1963), directing the
Government to disclose all of its communications with counsel
from Gibson Dunn & Crutcher LLP (“Gibson Dunn”), Chevron’s
lawyers in the underlying civil case.

(See Def. Mot. at 33-37.)

Mr. Donziger argues, without providing any meaningful basis for
his suspicions, that Gibson Dunn could be feeding misleading
information about him to the Government and that disclosure is
needed so he can satisfy himself that nothing sinister is afoot.
However, Mr. Donziger’s speculation that the universe is
conspiring against him is not a basis for compelling disclosure.
Like all other criminal defendants, he is “only entitled to
disclosure of statements expressly authorized by Rule 16 or
otherwise discoverable as exculpatory under Brady, or impeaching
under 18 U.S.C. § 3500.”

United States v. Souza, No. 06 Cr. 806

(SLT), 2008 WL 753736, at *2 (E.D.N.Y. Mar. 19, 2008).

The

Government indicated that it is complying with its disclosure
obligations, including under Brady, and will continue to do so.
(Opp. at 33.)

Because Mr. Donziger gives the Court no reason to

doubt the truthfulness of the special prosecutors’

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representations, his request for the Gibson Dunn communications
is denied.

See, e.g., United States v. Fallas, No. 09 Cr. 342

(LAP), 2010 WL 3468605, at *2 (S.D.N.Y. Aug. 19, 2010) (denying
motion for Brady disclosures when the Government represented
that “it will produce any Brady material promptly upon learning
of its existence”).
To the extent that Mr. Donziger states that if the
disclosure he requests is not permitted, he will subpoena nonparties Gibson Dunn and Chevron, the Court is not aware of any
rule that requires the Court’s permission for the parties to
initiate discovery.
III.

CONCLUSION
To the extent they are not addressed above, the Court has

considered Mr. Donziger’s remaining arguments and finds them
unavailing.

For the foregoing reasons, Mr. Donziger’s pretrial

motions are DENIED.
SO ORDERED.
Dated: May 7, 2020
New York, New York

________________________________
LORETTA A. PRESKA
Senior U.S. District Judge

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