Chevron Corporation v. Donziger et al

Filing 2540

ORDER: In an abundance of caution, this order is issued to put Mr. Donziger's former lead counsel, Andrew Frisch, who has been conditionally allowed to withdraw, on notice that he may be required to serve as Mr. Donziger's attorney at the trial long scheduled to begin on September 9, 2020; as further set forth herein. If Mr. Donziger's current counsel declines to attend the long-scheduled trial in person and Mr. Donziger finds that unacceptable, or if Mr. Donziger declines to waive any potential conflict with respect to Mr. Friedman and Ms. Littlepage that the Court might find to exist, the condition on which the Court permitted Mr. Frisch to withdraw as Mr. Donziger's counsel--i.e., that his withdrawal "not affect the trial date"--would not be satisfied, and the Court's order conditionally allowing his withdrawal would be null and void. Although it remains to be seen how this situation will play out, out of an abundan ce of caution and so that he can plan, Mr. Frisch is hereby put on notice that he may be called on to handle Mr. Donziger's trial defense, which will commence on September 9, 2020, just as it was scheduled to when Mr. Frisch made his motion. (Signed by Judge Loretta A. Preska on 8/24/2020) (mro)

Case 1:11-cv-00691-LAK-RWL Document 2540 Filed 08/24/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,
-versus-

19-CR-561 (LAP)
11-CV-691 (LAK)

STEVEN DONZIGER,
ORDER
Defendant.
LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE:
In an abundance of caution, this order is issued to put Mr.
Donziger’s former lead counsel, Andrew Frisch, who has been
conditionally allowed to withdraw, on notice that he may be
required to serve as Mr. Donziger’s attorney at the trial long
scheduled to begin on September 9, 2020.
On July 4, 2020, Mr. Frisch (who had represented Mr.
Donziger since August 11, 2019) moved for leave to withdraw as
Mr. Donziger’s lawyer.

(Dkt. nos. 11, 98.)

At that time, trial

was (and at all times remained) set for September 9, 2020,
having been adjourned from the initial trial date of June 15.
(See dkt. no. 87.)

Mr. Frisch gave no reason for his withdrawal

request, noting only that Richard Friedman -- who was admitted pro
hac vice to represent Mr. Donziger -- would be lead counsel.
(Dkt. nos. 72, 98.)

The Court granted Mr. Frisch’s withdrawal

motion on the express condition that such withdrawal would “not
affect the trial date,” which was then and is now September 9,

1

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2020.

(Dkt. no. 99.)

Neither Mr. Frisch nor any other defense

lawyer objected to that order in any respect.1
On July 29, 2020, Mr. Donziger’s current defense team moved
to postpone the trial for a number of reasons, including their
views regarding the current travel restrictions and health risks
they assert are imposed by the COVID-19 pandemic.
111, 119.)

(Dkt. no.

On August 17, 2020, the Court denied that motion and

directed that trial would proceed on September 9 as long
scheduled and as they each knew when they each appeared herein.
(Dkt. no. 124.)

The Court noted that at least two of Mr.

Donziger’s attorneys -- Mr. Friedman and Ms. Regan -- would be able
to attend the trial in person and that his remaining attorneys
could participate by videoconference.

(Id. at 3-5.)

It now appears that Mr. Frisch’s conditional withdrawal as
Mr. Donziger’s counsel might indeed end up affecting the trial
date for two reasons.

First, Mr. Friedman and Ms. Regan have

moved for reconsideration of the Court’s order declining to
delay the trial, and, although briefing has not yet closed, the
motions suggest that defense counsel, all of whom report that
they live outside New York State, might be unwilling appear for
the long set September 9 trial date given their articulated
concerns about contracting COVID-19 while traveling to New York

1
Mr. Donziger now has four lawyers of record: Mr. Friedman,
Lauren Regan, Zoe Littlepage, and Martin Garbus. (Dkt. nos. 72,
81, 86, 101.)

2

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City.

(See dkt. no. 130, 132.)

Second, at the Curcio hearing

held today on the issue of Mr. Friedman’s and Ms. Littlepage’s
potential conflicts as a result of being copied on certain
correspondence the special prosecutors plan to introduce as
evidence against Mr. Donziger, Mr. Donziger expressed the desire
to consult with independent counsel to understand and receive
advice as to whether he should waive the potential conflict.2
The outcome of that process remains unclear, but one possibility
is that the Court finds Mr. Friedman and Ms. Littlepage to be
conflicted and that Mr. Donziger declines to waive that
conflict, thus depriving him of their services as trial counsel.
If Mr. Donziger’s current counsel declines to attend the
long-scheduled trial in person and Mr. Donziger finds that
unacceptable, or if Mr. Donziger declines to waive any potential
conflict with respect to Mr. Friedman and Ms. Littlepage that
the Court might find to exist, the condition on which the Court
permitted Mr. Frisch to withdraw as Mr. Donziger’s counsel -i.e., that his withdrawal “not affect the trial date” -- would not
be satisfied, and the Court’s order conditionally allowing his
withdrawal would be null and void.

Although it remains to be

seen how this situation will play out, out of an abundance of
caution and so that he can plan, Mr. Frisch is hereby put on

2
The Court has directed that CJA counsel be available to
advise Mr. Donziger in this context, and an attorney from the
CJA panel was present at today’s hearing.

3

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notice that he may be called on to handle Mr. Donziger’s trial
defense, which will commence on September 9, 2020, just as it
was scheduled to when Mr. Frisch made his motion.

SO ORDERED.
Dated:

August 24, 2020
New York, New York

____________________________
LORETTA A. PRESKA, U.S.D.J.

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