Chevron Corporation v. Donziger
- Lewis Kaplan
- 1:11-cv-00691
- U.S. District Court · Southern District of New York
- 4
In United States v. Donziger, Judge Preska required more information before deciding whether nine defense witnesses could testify remotely at trial.
Steven Donziger, his proposed defense witnesses, and the government, because the order set requirements and deadlines for evaluating remote trial testimony.
What happened
In United States of America v. Steven Donziger, the court considered whether some of Mr. Donziger’s defense witnesses could testify by live video because of the COVID-19 pandemic.
Mr. Donziger proposed at least nine remote witnesses, including witnesses outside the United States. The court said he had not provided enough information about what the witnesses would say or how their testimony could be made reliable.
The court ordered Mr. Donziger to provide that information by October 26 and set deadlines for government responses and his reply. Judge Loretta A. Preska did not decide whether any witness would ultimately testify remotely.
The detailed version
- Chevron Corporation v. Donziger · No. 1:11-cv-00691
- Lewis Kaplan
- Oct. 22, 2020
Background
The court had previously allowed Mr. Donziger to ask, on a witness-by-witness basis, for defense witnesses who could not attend trial in person because of the COVID-19 pandemic to testify by live video. Mr. Donziger indicated that he wanted at least nine witnesses to testify remotely. The court said he had not supplied enough information to determine whether remote testimony was appropriate for any of them.
What the Court Required
The court ordered Mr. Donziger to submit a letter by October 26 at 9:00 a.m. The letter had to provide, for each proposed remote witness:
- details about the subject matter of the witness’s testimony, sufficient to show that the testimony was material—that is, highly relevant to a central issue or capable of challenging central parts of the government’s allegations; and - proposed procedures for ensuring that the video testimony had adequate signs of reliability.
Mr. Donziger could submit the materiality information privately and for the judge’s review without disclosing it to the prosecution before trial. He had to file the proposed reliability procedures publicly.
Foreign Witnesses and Reliability
The court noted that nine proposed remote witnesses lived outside the United States. Courts ordinarily prefer foreign witnesses to testify from a U.S. consulate or embassy before consular officials. The court stated that this option appeared unavailable because the pandemic had disrupted consulate and embassy operations in the relevant countries.
The court nevertheless required Mr. Donziger to propose safeguards for each witness. It noted that courts have expressed serious concerns about remote testimony from witnesses who could not be extradited to the United States if they committed perjury. The court specifically noted that several proposed witnesses lived in Ecuador, which the opinion said does not permit extradition. The court did not prejudge Mr. Donziger’s proposed procedures.
Deadlines and Effect of the Order
The government could respond to the proposed reliability procedures by October 27 at 5:00 p.m., and Mr. Donziger could reply by October 28 at 5:00 p.m. The order required additional submissions; it did not grant or deny permission for any particular witness to testify remotely and did not decide the criminal case’s merits.
Disposition
Judge Loretta A. Preska ordered Mr. Donziger to provide the specified information and set deadlines for the parties’ submissions.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.