Chevron Corporation v. Donziger et al

Filing 2554

ORDER: For the foregoing reasons, the Government's motion (dkt. no. 134) for Mr. Zelman to testify by video in accordance with the Government's proposed procedures is GRANTED. SO ORDERED. (Signed by Judge Loretta A. Preska on 8/31/2020) (va)

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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:
Before the Court is the Government’s motion to permit live,
two-way video testimony of a prosecution witness, David Zelman,
at the upcoming trial.

(Dkt. no. 134.)

For the reasons set

forth below, the motion is GRANTED.
I.

Background1
Starting on September 9, Mr. Donziger will be tried on six

counts of criminal contempt as charged in the July 30, 2019
Order to Show Cause.

(See Dkt. no. 1.)

Count VI of the Order

to Show Cause charges Mr. Donziger with willfully violating
paragraph five of the RICO judgment entered in the underlying
civil case, Chevron v. Donziger, No. 11-CV-691 (LAK), dkt. no.
1875 (S.D.N.Y.), which prohibits Mr. Donziger from “undertaking
any acts to monetize or profit from the [Ecuador] Judgment . . .
by selling, assigning, pledging, transferring or encumbering any

1
The Court assumes the parties’ familiarity with the facts
and only sets forth details necessary to resolve this motion.

1

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interest therein.”

(Dkt. no. 1 ¶¶ 19-21.)

Mr. Donziger is

alleged to have violated that provision by pledging a portion of
his personal interest in the Ecuador Judgment to Mr. Zelman, the
witness at issue in this motion, in exchange for Mr. Zelman’s
executive coaching services.

(See dkt. no. 134 at 2.)

The Government served Mr. Zelman with a trial subpoena on
March 26, 2020, when trial was scheduled for June 15, and then
again on July 17, after trial was adjourned to September 9.

On

July 22, Mr. Zelman’s attorney emailed the Government to raise
concerns about Mr. Zelman -- who is 72 years old and resides in
Dallas, Texas -- traveling to New York given his age and the
COVID-19 pandemic.

(Dkt. no. 134, Ex. D.)

Specifically, Mr.

Zelman’s attorney informed that Mr. Zelman was not “willing to
fly commercial for any reason,” noted the burden to Mr. Zelman
of quarantining in New York before trial,2 and requested that Mr.
Zelman “be allowed to testify via zoom.”

(Id.)

In follow-on

discussions with the Government, Mr. Zelman’s attorney continued
to express concerns about his client’s ability to travel to New

2
New York Executive Order #205 requires travelers to New
York from any state with a positive COVID-19 test rate higher
than 10 per 100,000 residents or higher than a 10% positive
rate, over a seven-day rolling average, to quarantine for
fourteen days upon arriving in New York. See Executive Order
#205, available at https://www.governor.ny.gov/news/no-205quarantine-restrictions-travelers-arriving-new-york. Since
Executive Order #205 was issued, Texas, where Mr. Zelman lives,
has been on the list of states whose residents must quarantine
upon entering New York.

2

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York for trial and also shared that Mr. Zelman has

.

Mr.

Zelman’s attorney has submitted letters from Mr. Zelman’s
physician noting that Mr. Zelman’s age and

put him at a

heightened risk of life-threatening complications if he were to
contract COVID-19.

(Dkt. no. 134, Exs. E-G.)

Specifically, Mr.

Zelman’s physician has advised Mr. Zelman “not to travel in the
US at this time” given Mr. Zelman’s age, which puts him at an
“increased risk of significant morbidity or even mortality
should [he] contract COVID,” and his

, which places him

“at significantly increased risk of being hospitalized or dying
if [he] contract[s] COVID.”

(Dkt. no. 134, Ex. G.)

Given Mr. Zelman’s age and health condition and quarantine
obligations under Executive Order #205, the Government proposes
that rather than travel to New York City to testify, he testify
from the U.S. Courthouse in Dallas, Texas, via live two-way
video conferencing.

(Dkt. no. 134.)

The Government notes that

video equipment could be set up so that the Court, counsel, and
Mr. Donziger could all see Mr. Zelman, and vice versa, while Mr.
Zelman testified.

The Government states that before Mr. Zelman

testified, it would inform the Court and the defense of the
exhibits that would be used during direct examination and that a
Court Security Officer could be present with Mr. Zelman in Texas
when testimony begins and to administer the oath.

3

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II.

Discussion

While the Sixth Amendment’s Confrontation Clause gives
defendants the right “to be confronted with the witnesses
against [them],” U.S. Const. amend. VI, the Supreme Court made
clear in Maryland v. Craig, 497 U.S. 836 (1990), that it does
not “guarantee[]” defendants “the absolute right to a face-toface meeting” with accusatory witnesses.
in original).

Id. at 844 (emphasis

Rather, “the Confrontation Clause reflects a

preference for face-to-face confrontation at trial, a preference
that must occasionally give way to considerations of public
policy and the necessities of the case.”

Id. at 849 (emphasis

in original, citation and internal quotation marks omitted).
Accordingly, Craig held that “a defendant’s right to confront
accusatory witnesses may be satisfied absent a physical, faceto-face confrontation at trial only where denial of such
confrontation is necessary to further an important public policy
and only where the reliability of the testimony is otherwise
assured.”

Id. at 850.

Notably, Craig involved the use of one-way video testimony.
For two-way video testimony, which is what the Government
proposes for Mr. Zelman, the Court of Appeals has not adopted
the Craig standard, observing that, unlike one-way video, twoway video “preserve[s] the face-to-face confrontation” required
by the Sixth Amendment.

United States v. Gigante, 166 F.3d 75,

4

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81 (2d Cir. 1999).

Accordingly, the Court of Appeals has

authorized the use of two-way video testimony “[u]pon a finding
of exceptional circumstances” and when it “furthers the
interests of justice.”

Id.

In determining whether to permit

testimony by two-way video, courts in this Circuit have applied
the rules used in connection with Rule 15 depositions and
allowed video testimony “only when (1) the witness’s testimony
is material; (2) the Government has made good-faith and
reasonable efforts to obtain the witness’s presence and is
unable to do so (that is, the witness is ‘unavailable’ within
the meaning of the case law), and (3) allowing testimony by such
means furthers the interests of justice.”

United States v.

Mostafa, 14 F. Supp. 3d 515, 521 (S.D.N.Y. 2014); accord United
States v. Buck, 271 F. Supp. 3d 619, 622-623 (S.D.N.Y. 2017).
Here, the Court finds that permitting Mr. Zelman to testify
using the two-way video procedures proposed by the Government
would satisfy the requirements of both Gigante and Craig, to
whatever extent the latter applies in the two-way video context.
With respect to the Craig standard, there is no question
that limiting the spread of COVID-19 and protecting at-risk
individuals from exposure to the virus are critically important
public policies.

See Craig, 497 U.S. at 850 (finding that the

policy of “protecting child witnesses from the trauma of
testifying in a child abuse case” justified an exception to the

5

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ordinary “face-to-face confrontation” requirement”);

United

States v. McKown, No. 16 Cr. 178, 2020 U.S. Dist. LEXIS 1293, at
*5 (N.D. Ind. Jan. 6, 2020) (“[T]here is an important public
interest in allowing witnesses to testify who cannot travel
because of age or health.”).

Nor is there any question that

allowing Mr. Zelman -- who is in his 70s and suffers from
, which, as the letters from his physician
reflect, places him at heightened risk of dangerous
complications should he contract COVID-19 -- to testify via live
video rather than in person, which would require boarding a
plane and spending at least two weeks in New York City, is
needed to promote those important public policies.3
The Court is also satisfied that the procedure proposed by
the Government -- which would have Mr. Zelman testifying under
oath from a federal court in Texas in the presence of court
personnel using a two-way video system that lets him view the
Court, counsel, and Mr. Donziger, and for them to view him, all
in real-time -- will “assure[]” “the reliability” of Mr. Zelman’s
testimony. Id. at 350; see McKown, 2020 U.S. Dist. LEXIS 1293,

3
Mr. Donziger suggests that the Government’s motion for
video testimony is meant to cater to “Mr. Zelman’s convenience”
and “reluctance to travel.” (See dkt. no. 140 at 1, 8.) That
is not what is at issue here. While avoiding unwanted travel
does not qualify as an important public interest, protecting atrisk individuals from contracting COVID-19, which is the driving
force of the instant motion, does indeed rise to that level.

6

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at *5 (“As to reliability, live two-way video testimony at a
remote courthouse meets the requirements laid out in Craig.

The

witnesses will be under oath and subject to cross examination,
and the jury will be able to observe the witnesses’ behavior.”).4
The reliability of Mr. Zelman’s trial testimony is further
ensured by the fact that it can be measured against the sworn
deposition testimony he gave on February 27, 2019, in which Mr.
Donziger participated, as well as Mr. Zelman’s January 7, 2019
sworn “Response to Requests for Information,” both of which
addressed the same basic facts at issue here.

(See dkt. no.

135, Exs. A & B); see also Mostafa, 14 F. Supp. 3d at 523
(noting that reliability was not in question when, among other
things, the Government had produced material “demonstrating that

4
Mr. Donziger claims that video platforms are not precise
enough to allow the factfinder to see and judge the nuances of
the witness’s testimony, which, according to Mr. Donziger,
becomes especially troublesome given Mr. Zelman’s “psychological
sophistication” as a “trained behavioral psychologist.” (Dkt.
no. 140 at 7.) This is nonsense. As stated in a prior order,
the Court has used video technology in several other criminal
matters, and it has proven to be “highly-effective” in allowing
viewers to “observe the speaker in real-time and visually assess
his or her demeanor.” (Dkt. no. 124 at 6.) Mr. Donziger cites
no authority for the proposition that a witness’s profession is
a relevant factor when deciding whether to permit him or her to
testify by two-way video, and the Court rejects it as meritless.

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[the witness’s] proffered testimony [was] consistent with
statements that he made in interviews over a number of years.”).5
Mr. Zelman’s video testimony will also comport with the
principles from Gigante and related cases from this Circuit.
First, the defense does not dispute that Mr. Zelman will offer
material testimony regarding the allegations that Mr. Donziger
pledged or assigned his interest in the Ecuadorian Judgment in
exchange for personal services.

Second, Mr. Zelman is

“unavailable” to testify in person given the combination of his
age,

, and the concomitant health risk posed by

COVID-19 if he were forced to travel and stay in New York for a
prolonged period of time.

(See dkt. no. 134, Exs. D-G); see

also Gigante, 166 F.3d at 81-82 (finding that the witness’s
illness and participation in a witness protection program were
“exceptional circumstances” justifying his testimony via closed
5
In his opposition brief, Mr. Donziger cites United States
v. Casher, No. 19 Cr. 65 (BLG) (SPW), 2020 WL 3270541, at *2 (D.
Mont. June 17, 2020), which denied a motion for prosecution
witnesses to testify via videoconference in light of the COVID19 pandemic. (Dkt. no. 140 at 7-8.) But the holding in Casher
was compelled by the Ninth Circuit Court of Appeals’ ruling in
United States v. Carter, 907 F.3d 1199 (9th Cir. 2018), which is
not controlling authority for the Court. See Casher, 2020 WL
3270641, at *2 (“Carter . . . controls the issue.”). As
explained below, to whatever extent Ninth Circuit precedent
might bar Mr. Zelman from testifying via two-way video, Second
Circuit precedent, which is binding on the Court, does not. In
any event, Casher is factually distinct in that the court there
opined that the witnesses were within driving distance of the
courthouse, which is not the case for Mr. Zelman, who lives 1550
miles from New York City. See id. at *3.

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circuit television).

Lastly, allowing Mr. Zelman to testify by

video will further the interests of justice because he has
first-hand knowledge of Mr. Donziger’s conduct with respect to
one of the contempt charges.

See Mostafa, 14 F. Supp. 3d at 524

(finding that video testimony promoted justice because “[i]t is
important that the Government be able to present the material
and relevant evidence in its search for truth.”).

Allowing Mr.

Zelman to testify by two-way video conferencing is therefore
permissible under Gigante.6
III. Conclusion7
For the foregoing reasons, the Government’s motion (dkt.
no. 134) for Mr. Zelman to testify by video in accordance with
the Government’s proposed procedures is GRANTED.
SO ORDERED.
Dated:

August 31 2020
__,
New York, New York

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

6
Mr. Donziger argues that instead of allowing video
testimony, the Court should continue the trial until after the
COVID-19 pandemic abates so that Mr. Zelman can safely testify
in person. (Dkt. no. 140 at 7.) The Court already denied Mr.
Donziger’s motion to delay the trial and then denied his motion
for reconsideration. (Dkt. nos. 124, 145.) The Court will not
address the argument yet again here.
7

To the extent they are not addressed above, the Court has
considered Mr. Donziger’s remaining arguments and finds them
unavailing.

9