Chevron Corporation v. Donziger

Background

This criminal contempt case arose from a related civil case involving Chevron Corporation and Steven Donziger, over which Judge Lewis A. Kaplan presided. In 2014, Judge Kaplan entered a decision and judgment in Chevron’s favor. After appellate proceedings, he entered a supplemental judgment awarding $813,602.71 in costs against Donziger and others.

In March 2019, Judge Kaplan issued an order governing the collection and examination of Donziger’s electronic devices. The order required Donziger to give a forensic expert a list of his electronic devices and accounts and to surrender those devices for imaging. Donziger did not comply, stating that he would not do so until his due-process rights were respected.

Judge Kaplan later ordered Donziger to surrender his passports as a coercive civil-contempt sanction, along with coercive fines, based on his failure to comply with the electronic-device order. Judge Kaplan continued to require passport surrender and declined to stay the electronic-device order pending appeal. Donziger did not comply and did not seek a stay or a court-of-appeals order requiring a stay.

On July 31, 2019, Judge Kaplan issued an order requiring Donziger to explain why he should not be held in criminal contempt under 18 U.S.C. § 401(3). Counts One, Two, and Three concerned his alleged refusal to provide the device-and-account list, surrender devices for imaging, and surrender his passports.

Motion and Legal Standard

Donziger moved to dismiss those three counts. On a motion to dismiss criminal contempt charges, the court must treat the factual allegations in the charging document as true. Factual disputes underlying the charges are resolved at trial rather than on the dismissal motion.

Section 401(3) authorizes a federal court to punish disobedience or resistance to its lawful orders, rules, decrees, or commands. The court noted the general rule that court orders must be obeyed promptly. A person who believes an order is incorrect may appeal, but absent a stay, the person must comply while the appeal is pending. The court also stated that the choice between civil and criminal contempt is generally within the district court’s discretion.

Donziger’s Argument

Donziger argued that production orders are different from other orders because they require affirmative and irreversible acts. Relying on four Supreme Court decisions—Alexander v. United States, Cobbledick v. United States, United States v. Ryan, and Maness v. Meyers—he argued that a person willing to risk civil contempt to obtain appellate review of a production order cannot be held in criminal contempt while review is pending.

Court’s Analysis

The court rejected that argument. It read Alexander, Cobbledick, and Ryan as allowing a person to obtain review of certain nonappealable orders, such as subpoenas, by refusing to comply and then litigating the order’s lawfulness in contempt proceedings. But the court found that those decisions did not limit the type of contempt—civil or criminal—that a court may impose.

The court likewise concluded that Maness did not establish a general restriction on criminal contempt for disobeying production orders. In the court’s reading, Maness involved a specific ruling concerning an attorney’s good-faith advice that a client should not surrender subpoenaed documents on self-incrimination grounds. It did not create the broader rule Donziger proposed.

The court also noted that it had postponed deciding whether the collateral-bar rule would prevent Donziger from challenging the validity of the underlying orders until trial, when there would be a fuller factual record. The collateral-bar rule generally prevents a person from defending against criminal contempt by making a collateral challenge to the constitutionality of the order; the usual method is to seek to have the order vacated or changed.

The court further relied on appellate decisions recognizing that a witness who wants to challenge a subpoena generally must disobey it, face civil or criminal contempt, and then appeal the contempt order. For a party to the civil case, however, a civil-contempt sanction generally can be appealed only after a final judgment, while an order of criminal contempt is immediately appealable.

Disposition

Judge Loretta A. Preska denied Donziger’s motion to dismiss Counts One, Two, and Three of the July 31, 2019 order to show cause. The Clerk was directed to close the motion. The opinion did not resolve factual disputes about whether Donziger committed the charged contempt; it stated that such disputes could be addressed at trial.