Chevron Corporation v. Donziger et al

Filing 2580

ORDER. For the foregoing reasons: (i) Mr. Donziger's motion to continue trial until after COVID-19 dissipates (dkt. no. 187) is DENIED; (ii) Ms. Regan's motion to withdraw as counsel (dkt. no. 193) is DENIED; (iii) trial is adjourned to 10: 00 a.m. on Monday, November 9; (iv) Mr. Donziger shall submit proposed procedures for remote witness testimony by no later than Monday, November 2 at 5:00 p.m. EST, and the Government shall respond by Wednesday, November 4 at 5:00 p.m. EST; (v) couns el shall confer and inform the Court by no later than November 2 at 5:00 p.m. EST if they do or do not wish to sit on Veteran's day; and (vi) the Court vacates the portion of its October 22 order (dkt. no. 186) directing Mr. Donziger to disclose the subject matter of his witnesses' video testimony. SO ORDERED. (Bench Trial set for 11/9/2020 at 10:00 AM before Judge Loretta A. Preska.) (Signed by Judge Loretta A. Preska on 10/28/2020) (rjm) Entered as doc. no. 196 in case no. 19cr561.

Case 1:11-cv-00691-LAK-RWL Document 2580 Filed 10/28/20 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

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

-against-

ORDER

STEVEN DONZIGER,
Defendant.

LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE:
Before the Court is Mr. Donziger’s latest motion to adjourn
his trial until after the COVID-19 pandemic ends.
187.)

(Dkt. no.

By way of background, trial in this case was originally

set for June 15, but the Court adjourned it to September 9
following the onset of the pandemic.
18.)

(See dkt. no. 87 at 5:12-

On July 29, with trial drawing near, Mr. Donziger filed an

initial motion to adjourn his trial until COVID-19 abates.
(Dkt. no. 111.)

The Court denied that motion but eventually

postponed trial to November 4 following the conclusion of a
Curcio hearing.

(Dkt. nos. 168, 172.)

On October 22, again with trial fast approaching, Mr.
Donziger filed the instant motion again asking to delay his
trial until COVID-19 dissipates.

This time, Mr. Donziger

principally argues that an adjournment is needed because (i)

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some defense witnesses cannot testify at trial in person and
(ii) COVID-19 safety protocols might undermine Mr. Donziger’s
right to effective assistance of counsel.1

The Government has

opposed Mr. Donziger’s motion (dkt. no. 193), and the Court
directed Mr. Donziger to submit his reply brief by October 28, a
deadline that was later extended -- at Mr. Donziger’s request -to October 29.

In the meantime, on October 27, Mr. Donziger’s

counsel, Lauren Regan, filed a motion for “reconsideration”
addressing the same topics raised in Mr. Donziger’s opening
brief.

(See dkt. nos. 194 at 2, 195.)

Ms. Regan’s

characterization of her memorandum as a request for
“reconsideration” is somewhat puzzling given that the motion for
a continuance was still sub judice, but the Court will treat it
as Mr. Donziger’s reply brief.

In that submission, Ms. Regan

asks for permission to withdraw as Mr. Donziger’s counsel in the
event the Court does not postpone the trial.
For the reasons set forth below, Mr. Donziger’s motion to
adjourn the trial until after the COVID-19 pandemic abates and
Ms. Regan’s request to withdraw are both DENIED.

1

The Court will

Mr. Donziger also asked the Court to reexamine its decision
allowing one Government witness, David Zelman, to testify by
video rather than in person. The Court denied that aspect of
Mr. Donziger’s motion on October 23, and, although Mr. Donziger
has objected to the Court’s ruling, the Court adheres to it.
(See dkt. nos. 187, 188, 192.)

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nonetheless adjourn the trial for five days to Monday, November
9, to give Mr. Donziger time to propose procedures governing his
remote witnesses’ video testimony.2

Additionally, the Court

vacates the portion of its October 22, 2020 order (dkt. no. 186)
directing Mr. Donziger to disclose the subject matter of his
video witnesses’ expected testimony.
I.

Defense Witness Testimony
As the first part of his motion, Mr. Donziger yet again

asks to postpone his trial saying that many of his witnesses
live outside the country and cannot attend trial in person due
to COVID-19 related health risks and travel restrictions.
no. 187 at 4-11.)

(Dkt.

The Court already addressed and rejected this

argument in its order denying Mr. Donziger’s first motion for a
continuance.

(Dkt. no. 124.)

There, the Court explained that

“criminal defendants ‘ha[ve] no constitutional right to present
evidence through live, in-person testimony only” and that live
video provides an alternative means for Mr. Donziger’s foreign
witnesses to testify.

(Id. at 5-6); see also United States v.

Saipov, 412 F. Supp. 3d 295, 300 (S.D.N.Y. 2019) (rejecting
argument that defendant was entitled to have certain witness

2

The Court notes that November 11 is Veteran’s Day, which is
a federal holiday. Counsel shall confer and inform the Court by
no later than November 2 whether they do or do not wish to hold
trial proceedings on that date. The Court will make itself
available as the parties wish.
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testify in person and noting that two-way video is a “widely
recognized and legally sanctioned alternative[] to live, inperson testimony”).

The same analysis applies to the argument

Mr. Donziger raises in his new motion, which is also rejected.
Mr. Donziger’s next objection concerns the Court’s October
22 order (dkt. no. 186) directing him to propose procedures for
ensuring the reliability of his video witnesses’ testimony.

Mr.

Donziger notes that some of his witnesses live in Ecuador, which
does not permit extradition on perjury charges, and argues that,
for that reason, video testimony by those witnesses would be
“legally infeasible.”

(Dkt. no. 187 at 7.)3

In support of this

point, he cites two cases in which courts precluded remote
testimony -- requested by the defense --from witnesses located in
countries that did not allow extradition, reasoning that that,
with no extradition, there was no way to enforce the witnesses’
oath to testify truthfully.

See United States v. Banki, No. 10

Cr. 08 (JFK), 2010 WL 1063453, at *2 (S.D.N.Y. Mar. 23, 2010)
(“Without the teeth of the penalty of perjury, the oath becomes
nothing more than an empty recital.”); United States v. Buck,
271 F. Supp. 3d 619, 624 (S.D.N.Y. 2017) (“[T]hese [Swiss]

3

Mr. Donziger also notes that for his international
witnesses, testifying from inside a U.S. consulate, which is the
preferred procedure for giving video testimony from outside the
United States, is not an option given COVID-19’s disruptions to
consular operations. (Dkt. no. 187 at 5-6.).
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witnesses’ testimony may essentially be free of any penalty of
perjury, calling into doubt the reliability of any of the
potential testimony.”).
The critical difference between Mr. Donziger’s case and the
decisions he cites, however, is that the defendants in Banki and
Buck received jury trials whereas Mr. Donziger will receive a
bench trial.

When the Court is the trier of fact, concerns

about permitting evidence of questionable reliability -- which is
what drove the outcomes in Banki and Buck -- are far less
pressing.

The case law perhaps reflects this principle most

clearly in decisions regarding the use of potentially unreliable
expert evidence in bench trials.

In that context, courts have

concluded that the proper course is to err on the side of
admitting the evidence, explaining that “without the risk of
poisoning the jury with misleading expert testimony of limited
probative value, the Court can take in the evidence freely and
separate helpful conclusions from ones that are not grounded in
reliable methodology.”

Joseph S. v. Hogan, No. 06 Civ. 1042,

2011 WL 2848330, at *3 (E.D.N.Y. 2011) (citation omitted); see
also Van Alen v. Dominick & Dominick, 560 F.2d 547, 552 (2d Cir.
1977) (“the more prudent course in a bench trial [is] to admit
into evidence doubtfully admissible records, and testimony based
on them”).

The Court concludes that this is the right approach

with respect to video testimony from Mr. Donziger’s foreign

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witnesses.

Accordingly, and out of an excess of caution, the

Court will not preclude those witnesses from testifying by video
simply because they cannot do so from a U.S. consulate or
embassy or because they are located in Ecuador.
That is not to say, however, that the Court will allow
witnesses to testify via video without having any protocols in
place to promote reliability.

For example, having a witness

testify in a public café or in the presence of people who might
coach him through his testimony would clearly be unacceptable.
Mr. Donziger must therefore comply with Court’s October 22 order
(dkt. no. 186) directing him to propose procedures to ensure the
reliability of testimony for his video witnesses and shall do so
by no later than November 2.

To ensure that the Government has

time to respond and the Court has time to consider the
proposals, the start of trial will be adjourned by five days to
November 9.

To the extent that the conditions under which Mr.

Donziger’s witnesses testify are or are not conducive to truthtelling, the Court may take that into account in assessing their
testimony and credibility.
Mr. Donziger’s last argument regarding defense witnesses
concerns the Court’s October 22 order directing him disclose, on
an ex parte and in camera basis, the subject matter of his
remote witnesses’ expected testimony.
187 at 8-11.)

(See dkt. nos. 186 at 4,

The Court issued that directive in light of the

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case law treating the requirements for Rule 15 depositions –including the requirement that the testimony be “material” -- as
preconditions for using video testimony at trial.
F. Supp. 3d. at 622-23.

See Buck, 271

Mr. Donziger objects to the Court’s

order on grounds that it improperly forces him to show that his
witnesses’ testimony is “material” rather than just “relevant”
under Federal Rule of Evidence 401.

Compare id. at 623

(“Testimony is material if it is ‘highly relevant to a central
issue in the case.’”), with Fed. R. Evid. 401 (“Evidence is
relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.”).

Mr. Donziger

also argues that the cases applying Rule 15’s requirements in
the video testimony context involved situations where the
defendant was the one who wanted to have witnesses testify by
video, which Mr. Donziger submits is not the case here.

Rather

than video testimony, he seeks an indefinite adjournment until
COVID-19 abates so that his witnesses can testify in person.
The Court recognizes that the authorities on using video
testimony of defense witnesses at trial generally require a
showing of “materiality,” but it nevertheless concludes, out of
an excess of caution, that it makes little sense to impose that
requirement here, given that this is a bench trial.

As the

Court noted with respect to the foreign witness issue, “doubts

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at a bench trial should be resolved in favor of admissibility.”
Dreyful Ashby, Inc. v. S/S “Rouen”, No. 88 Civ. 2890, 1989 WL
151685, at *2 (S.D.N.Y. 1989); see also Bic Corp. v. Far Eastern
Source Corp., 23 Fed. Appx. 36, 39 (2d Cir. 2001) (“[T]he
admission of evidence in a bench trial is rarely ground for
reversal, for the trial judge is presumed to be able to exclude
improper inferences from his or her own decisional analysis.”).
Accordingly, the Court vacates the portion of its October 22,
2020 order (dkt. no. 186) directing Mr. Donziger to disclose the
subject matter of his video witnesses’ expected testimony.

Of

course, to be admissible, the witnesses’ testimony must satisfy
the “relevance” standard under Federal Rule of Evidence 401.
The Court will make relevance determinations in the traditional
manner on a witness-by-witness basis during trial.
II.

Effective Assistance of Counsel and Attorney Withdrawal

Setting aside the witness issues, Mr. Donziger contends
that an adjournment is needed because COVID-19 safety measures,
including social distancing, will limit his ability to
communicate and pass notes to his attorney, Lauren Regan, at
trial.

(Dkt. no. 187 at 14-17.)

This argument is meritless.

Mr. Donziger’s case is not the first to go to trial since
the onset of COVID-19.

Indeed, over the past few months, the

Southern District of New York has undertaken a massive campaign
ensure that its facilities are safe and ready for trial in

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COVID-19 conditions.4

With safety protocols in place, juries

have now been selected in seven cases (six in Manhattan and one
in White Plains ), and last week, one criminal jury trial ended
with a verdict.
(S.D.N.Y.).

See United States v. Collins, 19 Cr. 395 (PKC)

To the extent Ms. Regan decides to attend trial in

person, “whisper” phones are available in the courtroom so that
she can communicate with her client while maintaining social
distance.

To the extent Ms. Regan decides not to attend trial,

there will be a telephone at the defense table that can also be
used in the jury room so that Mr. Donziger can confer with
counsel as needed.

The Court will address any other issues as

they arise and take adequate steps to ensure that Mr. Donziger
can communicate freely with his lawyer at all times.5

4

For instance, the Southern District of New York consulted
extensively with multiple experts, including Amira Roess, PhD,
MPH, an epidemiologist from George Mason University who has
consulted for Federal Defenders, the Eastern District of New
York, and the New York State Office of Court Administration;
Rainald Lohner, Phd, an expert in fluid dynamics ventilation
from George Mason University; and an expert from the Centers for
Disease Control and Prevention regarding witness box and
attorney podium protocols. SDNY ran its COVID-19 safety plans
by these experts and accepted their input on any changes.
5

Mr. Donziger states that if Ms. Regan does not to attend
trial in person, he will not receive effective counsel and asks
the Court to at least postpone trial until December 7 so that
another lawyer, Ronald Kuby, can appear in person. The Court
already rejected Mr. Donziger’s request for an adjournment to
December 7 on two occasions and adheres to its prior ruling.
(Dkt. nos. 158, 176.) In any event, to the extent Mr. Donziger
(Continued on following page.)
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Mr. Donziger also requests that if trial is not adjourned,
it be held in the largest available courtroom.
18.)

(Dkt. no. 187 at

As the Court previously indicated, trial will take place

in Courtroom 12A, with Courtroom 15A serving as an overflow
room.

(Dkt. no. 181.)

The Court has inquired about the

availability of larger courtrooms, but, unsurprisingly, they are
reserved for jury trials, which require more people in the
courtroom and more space to accommodate social distancing.

The

Court will continue to monitor the availability of larger
courtrooms and inform the parties if one becomes available.
Finally, Ms. Regan has requested permission to withdraw as
Mr. Donziger’s counsel, citing professed concerns about

(Continued from previous page.)
is not physically joined by counsel in the courtroom, that is
the direct consequence of a chain of decisions Mr. Donziger made
throughout this proceeding. As noted in prior orders and
hearings, Mr. Donziger declined to waive a potential conflict
based on the participation of his two former lawyers, Richard
Friedman and Zoe Littlepage, in the facts underlying one of the
counts in the charging instrument. (See dkt. no. 149.) Mr.
Donziger was aware of those facts when he retained Mr. Friedman
and Ms. Littlepage, and the potential conflict was called to his
attention by the Government and discussed with his prior
counsel, Andrew Frisch, back in May. Mr. Donziger has also been
aware of the adjourned trial date since September 4, when the
Court postponed trial for 70 days -- the presumptive time from
indictment to trial -- but he elected not to retain New York
counsel or to fill out a financial affidavit for appointment of
New York CJA counsel. (See dkt. no 176.) As the Court warned
on October 5, Mr. Donziger “will not be permitted to manipulate
the proceedings by [his] choice or nonchoice of counsel.” (Id.)
Mr. Donziger has made his bed and now must lie in it.
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contracting COVID-19 if she comes to New York for trial and
about the quality of her representation if she elects to
participate remotely.

(Dkt. no. 193.)

That request is denied.

“Whether to grant a motion to withdraw as counsel ‘falls to the
sound discretion of the trial court.’”

Karimian v. Time

Equities, Inc., No. 10 Civ. 3773 (AKH) (JCF), 2011 WL 1900092,
at *2 (S.D.N.Y. May 11, 2011) (quoting Stair v. Calhoun, 722 F.
Supp. 2d 258, 264 (E.D.N.Y. 2010)).

When deciding a withdrawal

motion, one of the key factors is “the posture of the case” and
whether the withdrawal will “disrupt[]” the proceedings.
*3.

Id. at

Mr. Donziger’s trial is set to begin in less than two

weeks, and Ms. Regan is his only attorney of record.

That said,

there is no question that allowing Ms. Regan to withdraw would
cause a massive disruption to the case.

See Malarkey v. Texaco,

Inc., No. 81 Civ. 5224, 1989 WL 88709, at *2 (denying lawyer’s
motion to withdraw when the case was “on the verge of trial
readiness”).

Ms. Regan’s motion is therefore denied.

III. Conclusion
For the foregoing reasons: (i) Mr. Donziger’s motion to
continue trial until after COVID-19 dissipates (dkt. no. 187) is
DENIED; (ii) Ms. Regan’s motion to withdraw as counsel (dkt. no.
193) is DENIED; (iii) trial is adjourned to 10:00 a.m. on
Monday, November 9; (iv) Mr. Donziger shall submit proposed
procedures for remote witness testimony by no later than Monday,

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November 2 at 5:00 p.m. EST, and the Government shall respond by
Wednesday, November 4 at 5:00 p.m. EST; (v) counsel shall confer
and inform the Court by no later than November 2 at 5:00 p.m.
EST if they do or do not wish to sit on Veteran’s day; and (vi)
the Court vacates the portion of its October 22 order (dkt. no.
186) directing Mr. Donziger to disclose the subject matter of
his witnesses’ video testimony.
SO ORDERED.
Dated:

October 28, 2020
New York, New York

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

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