Chevron Corporation v. Donziger

Background

The court considered Steven Donziger’s renewed motion to adjourn his criminal trial until after the COVID-19 pandemic abated. The trial had already been postponed several times. Donziger argued that some defense witnesses, including witnesses outside the United States, could not testify in person because of health risks and travel restrictions. He also argued that pandemic safety measures could impair his ability to communicate effectively with his lawyer, Lauren Regan.

Regan separately asked for permission to withdraw if the trial was not postponed. The court treated her filing addressing the same issues as Donziger’s reply to the adjournment motion.

Remote Witness Testimony

The court rejected Donziger’s argument that he had a right to present his witnesses through live, in-person testimony. It concluded that video testimony was an available alternative. The court also rejected his argument that witnesses in Ecuador could not testify by video because Ecuador does not permit extradition on perjury charges. The court distinguished cases involving jury trials, explaining that concerns about unreliable evidence are less pressing in a bench trial because the judge, rather than a jury, evaluates the evidence.

The court said it would not automatically bar foreign witnesses from testifying by video merely because they could not testify from a United States consulate or embassy or because they were located in Ecuador. It nevertheless required procedures designed to promote reliable testimony, such as preventing witnesses from being coached. Donziger was ordered to submit proposed procedures by November 2, and the Government was given time to respond.

The court also vacated the portion of its October 22 order requiring Donziger to disclose, privately and to the court, the subject matter of his video witnesses’ expected testimony. The court concluded that requiring a showing that the testimony was “material”—meaning highly relevant to a central issue—was unnecessary in this bench trial. The testimony still had to meet the ordinary relevance requirement under Federal Rule of Evidence 401, with relevance to be decided for each witness during trial.

Effective Assistance of Counsel

The court rejected Donziger’s argument that social distancing and other safety measures would prevent effective communication with Regan. If Regan attended in person, the courtroom would provide “whisper” phones. If she attended remotely, Donziger could use a telephone at the defense table and in the jury room to confer with her. The court stated that it would address additional communication problems if they arose.

The court also rejected Donziger’s request to postpone the trial so another lawyer, Ronald Kuby, could appear in person. The court stated that Donziger had declined to waive a potential conflict involving former lawyers and had not retained New York counsel or completed a financial affidavit for appointment of appointed counsel. The opinion stated that the resulting lack of physically present counsel was a consequence of decisions Donziger had made during the proceeding.

Attorney Withdrawal and Disposition

Judge Loretta A. Preska denied Regan’s motion to withdraw. The court relied on the trial’s imminent start, Regan’s status as Donziger’s only attorney of record, and the substantial disruption that withdrawal would cause.

The court therefore (i) denied Donziger’s motion to continue the trial until after COVID-19 dissipated; (ii) denied Regan’s motion to withdraw as counsel; (iii) adjourned the trial to November 9, 2020; (iv) required proposed procedures for remote witness testimony; (v) directed counsel to inform the court whether they wished to hold proceedings on Veterans Day; and (vi) vacated the order requiring disclosure of the subject matter of the video testimony.