Chevron Corporation v. Donziger et al

Filing 2576

ORDER: Mr. Donziger shall make the disclosures outlined above by no later than October 26 at 9:00 a.m. He shall file his subject matter proffers ex parte and in camera and his proposed procedures for ensuring the reliability of the video testimony on the public docket. The Government may respond to his proposed procedures by October 27 at 5:00 p.m., and Mr. Donziger may reply by October 28 at 5:00 p.m. SO ORDERED. (Signed by Judge Loretta A. Preska on 10/22/2020) (va)

Case 1:11-cv-00691-LAK-RWL Document 2576 Filed 10/22/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA
19-CR-561 (LAP)
11-CV-691 (LAK)

-againstSTEVEN DONZIGER,

ORDER

Defendant.

LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE:
Two months ago, the Court entered an order addressing the
possibility of allowing certain witnesses to testify remotely by
video at Mr. Donziger’s upcoming trial.

(Dkt. no. 124.)

That

order stated that for any defense witness who cannot attend
trial in person given the COVID-19 pandemic, “Mr. Donziger may
move to admit [the witness’s] testimony via live video, and the
Court will consider those applications on a case-by-case basis.”
(Dkt. no. 124 at 6.)

Mr. Donziger has indicated that he would

like to have at least nine witnesses testify by video (see dkt.
nos. 153, 166, 180, 182), but, at this point, he has not
supplied enough information for the Court to determine whether
video testimony is warranted for any of his proposed witnesses.
To allow the Court to make that determination, Mr. Donziger
shall submit a letter by no later than October 26 providing
additional details on (i) the subject matter of each proposed
video witness’s testimony and (ii) proposed procedures for
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ensuring that the testimony is reliable.

With respect to

subject matter, Mr. Donziger must supply enough detail for the
Court to determine whether each witness’s testimony will be
“material” -- i.e., that it will be “highly relevant to a central
issue in the case” or “challenge central aspects of the
government’s allegations.”

United States v. Buck, 271 F. Supp.

3d 619, 622-23 (S.D.N.Y. 2017) (denying motion to introduce
testimony by video when defendant failed to show that the
testimony would be material); United States v. Mostafa, 14 F.
Supp. 3d 515, 521 (S.D.N.Y. 2014) (noting that courts only
permit video testimony at trial when, among other conditions,
“the witness’s testimony is material”).

To avoid revealing his

defense strategy to the prosecution before trial, Mr. Donziger
may make these materiality proffers ex parte and in camera.
In addition, for each remote witness, Mr. Donziger shall
describe procedures that can be implemented to ensure that the
video testimony has adequate “indicia of reliability.”

See

United States v. Banki, No. 10 Cr. 08 (JFK), 2010 WL 1063453, at
*2 (S.D.N.Y. Mar. 23, 2010).

The Court notes that nine of Mr.

Donziger’s proposed remote witnesses reside outside the United
States and that, ordinarily, the preferred procedure is to have
foreign witnesses give video testimony from inside a U.S.
consulate or embassy.

See, e.g., United States v. Guild, No. 07

Cr. 404 (JCC), 2008 WL 191184, at *4 (S.D.N.Y. Jan. 17, 2008)

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(testimony given before consular officials).

It appears,

however, that this option is not available for Mr. Donziger’s
international witnesses, as the COVID-19 pandemic has disrupted
the operations of the consulates and embassies in the countries
where they live.

(See dkt. no. 180.)

Mr. Donziger shall

nonetheless propose a set of procedures that can be followed for
each witness to ensure that adequate “measures [are] in place to
safeguard the important interests at stake in criminal
proceedings.”

See Guild, 2008 WL 191184, at *3.

While the

Court will not prejudge Mr. Donziger’s proposals, it notes that
the case law reflects a deep skepticism about the reliability of
remote testimony from witnesses who cannot be extradited to the
United States in the event they commit perjury and that several
of Mr. Donziger’s proposed video witnesses live in Ecuador,
which does not permit extradition.

See, e.g., Banki, 2010 WL

1063453, at *2-3 (“Without the teeth of the penalty of perjury,
the oath becomes nothing more than an empty recital.”).
Mr. Donziger shall make the disclosures outlined above by
no later than October 26 at 9:00 a.m.

He shall file his subject

matter proffers ex parte and in camera and his proposed
procedures for ensuring the reliability of the video testimony
on the public docket.

The Government may respond to his

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proposed procedures by October 27 at 5:00 p.m., and Mr. Donziger
may reply by October 28 at 5:00 p.m.

SO ORDE:RE:D.

Dated:

October 22, 2020
New York, New York

~<2~

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

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