Chevron Corporation v. Donziger

Background

The Government moved to allow prosecution witness David Zelman to testify by live, two-way video at Steven Donziger’s upcoming trial. Donziger was scheduled to be tried on six criminal-contempt counts. One count alleged that he willfully violated a provision of a civil judgment in the underlying Chevron v. Donziger case by pledging part of his personal interest in an Ecuadorian judgment to Zelman in exchange for executive coaching services.

The Government had served Zelman with trial subpoenas. Zelman’s attorney objected to his traveling from Texas to New York because of Zelman’s age, the COVID-19 pandemic, quarantine requirements, and health risks described in letters from his physician. The Government proposed that Zelman testify from a federal courthouse in Texas using equipment that would allow the court, counsel, and Donziger to see and hear him, and would allow Zelman to see and hear them. A court security officer could be present to administer the oath.

Legal standard

The Sixth Amendment’s Confrontation Clause gives a criminal defendant the right to confront witnesses against him, but the Supreme Court has held that this does not always require a physical, face-to-face appearance. Under Maryland v. Craig, a departure from face-to-face testimony requires an important public policy and procedures that otherwise assure the testimony’s reliability.

The Court of Appeals for the Second Circuit has stated that two-way video testimony preserves face-to-face confrontation and may be allowed upon exceptional circumstances when it furthers the interests of justice. Courts in that circuit generally consider whether the testimony is material, whether the Government made good-faith and reasonable efforts to obtain the witness’s presence and could not do so, and whether remote testimony would further the interests of justice.

Court’s analysis

The court found that limiting COVID-19’s spread and protecting at-risk people were important public policies. It determined that allowing Zelman to testify by video, rather than requiring air travel and a prolonged stay in New York, was necessary to serve those policies in light of the circumstances described by Zelman’s physician.

The court also found the proposed procedure reliable. Zelman would testify under oath from a federal courthouse, the participants would be visible to one another in real time, and Donziger could cross-examine him. The jury would be able to observe Zelman’s behavior. The court further noted that Zelman’s testimony could be compared with his earlier sworn deposition and written response, both of which addressed the same basic facts.

The court found that Zelman’s testimony would be material because it concerned allegations that Donziger pledged or assigned his interest in the Ecuadorian judgment in exchange for personal services. It found Zelman unavailable to testify in person because of his age, health condition, and the COVID-19 travel risks. It also found that allowing him to testify remotely would further the interests of justice because he had firsthand knowledge of Donziger’s conduct relevant to one of the contempt charges.

Disposition

The court granted the Government’s motion to allow Zelman to testify by video under the Government’s proposed procedures. The order addressed the method of presenting one witness’s testimony and did not decide the merits of the criminal-contempt charges. The opinion is signed by Judge Loretta A. Preska.