Chevron Corporation v. Donziger
- Lewis Kaplan
- 1:11-cv-00691
- U.S. District Court · Southern District of New York
- 10
In Chevron Corporation v. Donziger, Judge Kaplan denied Donziger’s request to delay a contempt hearing and denied Chevron’s request without prejudice.
Steven Donziger’s request to delay or otherwise alter the contempt hearing was denied. Chevron may raise its Fifth Amendment argument before Magistrate Judge Lehrburger, and the magistrate judge may decide how to address Donziger’s prior declarations and testimony.
What happened
Chevron Corporation v. Donziger followed earlier rulings against Steven Donziger concerning enforcement of an Ecuadorian judgment and Donziger’s compliance with post-judgment court orders. The court had scheduled a hearing about whether Donziger had cured part of his civil contempt involving a forensic inspection order.
Donziger asked to postpone the hearing because criminal contempt charges were pending against him, and he also sought permission for his criminal-defense lawyer to participate. Chevron separately asked the court to prevent Donziger from refusing to answer questions at the hearing by invoking the Fifth Amendment privilege against self-incrimination.
The court denied Donziger’s motion in all respects. It also denied Chevron’s motion without prejudice to raising its arguments before the magistrate judge handling the hearing. Judge Lewis A. Kaplan said the magistrate judge could consider disregarding Donziger’s prior written statements if he refused to answer appropriate cross-examination questions.
The detailed version
- Chevron Corporation v. Donziger · No. 1:11-cv-00691
- Lewis Kaplan
- Dec. 9, 2019
Background
Chevron had previously prevailed against Steven Donziger after a trial concerning an Ecuadorian judgment. The resulting judgments included an injunction and a money judgment. The opinion states that the injunction had been affirmed on appeal and that Donziger had exhausted his appeals concerning that judgment. The money judgment remained on appeal, but Donziger had not paid it or obtained a stay.
Chevron then pursued post-judgment proceedings to locate assets, determine whether Donziger was complying with the injunction, and seek remedies for alleged noncompliance. The court had previously ordered a forensic inspection of Donziger’s electronic devices, media, and online accounts. Donziger was held in civil contempt for violating parts of that order, and the court imposed escalating fines intended to encourage compliance.
A hearing before Magistrate Judge Lehrburger was scheduled to address only whether Donziger had cured his civil contempt of paragraph 4 of the forensic inspection protocol after the May 23, 2019 contempt ruling. The hearing was not to decide whether he had violated that paragraph during the earlier period covered by the contempt ruling.
Motions
Donziger moved to stay or postpone the December 12, 2019 hearing. He relied on the fact that the court had charged him with six counts of criminal contempt and that trial on those charges was scheduled for June 15, 2020. He also asked the court to hold Chevron’s motion in abeyance, allow his criminal-defense counsel to make a special appearance, or give him another opportunity to address Chevron’s motion or pursue appellate rights.
Chevron filed a motion in limine, meaning a request to control what evidence or testimony could be presented at the hearing. Chevron asked the court to preclude Donziger from refusing, based on the Fifth Amendment privilege against self-incrimination, to answer questions about whether he had cured his contempt of paragraph 4. Chevron argued that Donziger’s prior declarations asserting compliance would be unfairly shielded from cross-examination if he invoked the privilege.
Court’s Analysis
The court found no sufficient connection between the December 12 hearing and the pending criminal contempt charges. Five of the six charges had no relationship to the hearing. The remaining charge concerning paragraph 4 involved an earlier period, while the hearing concerned whether Donziger complied after the May 23 contempt ruling. The court also noted that criminal contempt is complete when the alleged violation occurs, regardless of later compliance.
The court emphasized that the discovery requests underlying the contempt proceedings had been served in April 2018 and that Donziger had repeatedly refused to fulfill his obligations. It found no reason to delay the hearing, particularly because Donziger had not appealed the forensic inspection protocol itself or sought a stay from the appeals court.
The court did not finally decide whether Donziger had waived his Fifth Amendment privilege. Instead, it stated that the magistrate judge could consider disregarding Donziger’s three declarations if he refused to testify or answer appropriate cross-examination questions. Because Donziger had the burden of going forward, and probably the burden of persuasion, on whether he had cured his contempt, disregarding those declarations could leave his claim unsuccessful.
Disposition
The court denied Donziger’s letter motion in all respects. That included his requests to stay or postpone the December 12 hearing, hold Chevron’s motion in abeyance, permit a special appearance by his criminal-defense counsel, or provide another opportunity to address the substance of Chevron’s motion or pursue appellate rights.
The court denied Chevron’s motion in limine without prejudice to Chevron’s asserting its arguments before Magistrate Judge Lehrburger. The opinion therefore left the Fifth Amendment issue for consideration in the hearing before the magistrate judge rather than resolving it finally. The order was signed by Judge Lewis A. Kaplan.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.