Chevron Corporation v. Donziger et al

Filing 2577

ORDER: For the foregoing reasons, Mr. Donziger's motion to adjourn the trial so that Mr. Zelman can testify in person is DENIED. The Court reserves decision on the remaining issues raised in Mr. Donziger's motion pending the close of briefing. SO ORDERED. (Signed by Judge Loretta A. Preska on 10/23/2020) (va)

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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:
On October 22, 2020, Mr. Donziger moved to adjourn his
November 4 trial date for reasons related to the COVID-19
pandemic.

(Dkt. no. 187.)

Mr. Donziger made a similar motion

on July 29, when trial was scheduled to begin on September 9,
and the Court denied that motion and Mr. Donziger’s follow-on
motion for reconsideration.
145.)1

(Dkt. nos. 111, 124, 130, 132,

Mr. Donziger’s latest motion to adjourn raises three

arguments: (1) COVID-19 will prevent defense witnesses from
attending trial; (2) allowing one of the Government’s witnesses,
David Zelman, to testify via live video rather than in person
will violate Mr. Donziger’s rights under the Sixth Amendment’s

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The Court ultimately adjourned the trial from September 9
to November 4 following the conclusion of a Curcio hearing.
(Dkt. nos. 168, 172.)
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Confrontation Clause; and (3) COVID-19 safety measures may
undermine Mr. Donziger’s right to effective assistance of
counsel.

While the Court will await full briefing before ruling

on the first and third issues, it has already rejected Mr.
Donziger’s argument about Mr. Zelman’s video testimony, and Mr.
Donziger has not established that reconsideration of that ruling
is warranted.

Accordingly, the motion to adjourn based on Mr.

Zelman’s video testimony and non-attendance at trial, which the
Court treats as a motion for reconsideration, is DENIED.
“The standard for granting motions for reconsideration is
strict, and a court may grant reconsideration only where the
moving party demonstrates an ‘intervening change in controlling
law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.”

United States v.

Alvarez-Estevez, No. 13 Cr. 380 (JFK), 2014 WL 12681364, at *1
(S.D.N.Y. Nov. 6, 2014).

Under Local Criminal Rule 49.1(d), the

party seeking reconsideration must “set[] forth concisely the
matters or controlling decisions which counsel believes the
Court has overlooked.”

Local Crim. Rule 49.1(d).

“Where a

motion restates arguments already presented or attempts to
advance new facts, however, ‘the motion for reconsideration must
be denied.’”

Alvarez-Estevez, 2014 WL 12681364, at *1.

The Court has already rejected Mr. Donziger’s arguments
about Mr. Zelman’s non-attendance at trial in several prior

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orders.

First, on July 29, Mr. Donziger moved to adjourn his

trial (then scheduled for September 9) on grounds that, among
other things, a Government witness later identified as Mr.
Zelman was unwilling to travel to New York because of COVID-19
and that permitting Mr. Zelman to testify at trial by video
would violate Mr. Donziger’s Sixth Amendment rights.
nos. 111, 119.)

(See dkt.

The Court denied Mr. Donziger’s motion,

observing that, depending on Mr. Zelman’s circumstances, the
strictures of the Sixth Amendment might not preclude him from
testifying via video.

(See dkt. no. 124.)

In the wake of that

order, the Government submitted a motion outlining the medical
reasons and legal basis for Mr. Zelman to testify by video, and
the Court granted that motion over Mr. Donziger’s opposition in
an order dated August 31.

(Dkt. nos. 134, 140, 152.)

In that

order, the Court concluded that Mr. Zelman was at heightened
risk of serious health complications if he were to contract
COVID-19, that the Government had proposed adequate procedures
to ensure the reliability of his testimony by video, and that
the video testimony would comport with the requirements of the
Sixth Amendment as construed in Maryland v. Craig, 497 U.S. 836
(1990), United States v. Gigante, 166 F.3d 75 (2d Cir. 1999),
and related decisions.

(Dkt. no. 152.)

Mr. Donziger’s instant motion is premised on the exact same
argument the Court previously rejected -- i.e., that Mr. Zelman’s

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inability to attend trial requires an adjournment (see dkt. no.
187 at 12-13) -- but he does not establish that reconsideration of
the Court’s prior ruling is warranted.

First, although Mr.

Donziger claims that the Court must “update[]” its decisions
regarding Mr. Zelman because they were issued when trial was set
for September 9 rather than November 4, as is now the case, he
does not explain how the later trial date makes any difference
in the legal analysis, and the Court finds that it does not.
Nor has Mr. Donziger identified any intervening change in
controlling law.

Indeed, the only new case he cites is from a

Kansas district court, United States v. Pangelinan, No. 19 Cr.
10077 (JWB), 2020 WL 5118550 (D. Kan. Aug. 31, 2020), which, of
course, is not binding authority for this Court.

In substance,

Mr. Donziger’s renewed argument shows nothing more than his
dissatisfaction with the Court’s finding that Mr. Zelman’s
remote testimony would comport with the framework from Gigante
and other cases.

It is axiomatic, however, that a one party’s

“disagreement with a court’s legal analysis and conclusions as
to a matter fully considered does not serve as sufficient ground
to warrant reconsideration.”

R.F.M.A.S., Inc. v. MIMI So, 640

F. Supp. 2d 506, 512 (S.D.N.Y. 2009).
For the foregoing reasons, Mr. Donziger’s motion to adjourn
the trial so that Mr. Zelman can testify in person is DENIED.

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The Court reserves decision on the remaining issues raised in
Mr. Donziger’s motion pending the close of briefing.
SO ORDERED.
Dated:

October 23, 2020
New York, New York

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

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