Ispent the day yesterday in an overflow room watching the criminal contempt trial of Steven Donziger. The day lacked the drama of Day 1 of the trial. No one was chanting in the street. I did not see Roger Waters or Susan Sarandon. There were no dramatic opening statements. Still, it was interesting to see the real world of the case up close, which is dramatically different from the Donziger Twitterverse. Here is my account.
As at all Lago Agrio-related events, much of the interest was people-watching. I caught a glimpse of Steven Donziger, looking as good as ever, and his lawyer, Ron Kuby, before they headed into the courtroom. The other spectators where I was sitting included several earnest looking senior citizens, some young folks who I took for activists, Harvard Law professor Charles Nesson, and, if I’m not mistaken, Marianne Williamson. Several wore “Free Donziger!” masks. I know Aaron Marr Page was there, though I didn’t run in to him. I spoke with some of the court security officers to ask how the day had gone on Monday. They rolled their eyes and told me, in their laconic way, that it had been “a busy day.” They asked what the case was about—they didn’t have any information about the case, which tells you something about the difference between good publicity on Twitter and good publicity in the rest of the world.
Donziger world has been complaining that he has been denied a public trial. That seemed to me clearly wrong. There was plenty of space for the public to sit and watch, even with social distancing measures in place. With that said, it would have been better if the viewing screens had been set up to show the face of the witness as well as the faces of the lawyers and the judge.
On Monday, a reporter who has written about the case asked me whether I thought that Donziger would be in trouble for his “from-the-courtroom” tweets. And wouldn’t you know it, the first order of business was the judge explaining to Mr. Kuby that his client was not entitled to have his phone with him in the courtroom and that she had been informed that Donziger had, in fact, tweeted from the courtroom yesterday. “I don’t tweet myself,” the judge said. “Can you say that again? I like the way you say ‘tweet,’” Mr. Kuby said. After discussing Mr. Donziger’s use of electronic devices, the discussion moved to the press: why could the press have its devices in the courtroom if Mr. Donziger couldn’t? The judge responded that the SDNY had specific policies about access generally and about access by accredited members of the press. I think this was news to Mr. Kuby, but he quickly pivoted to make the point that the court should not be in the business of deciding who is an accredited reporter who gets to have a phone and who is not. As an unaccredited person reporting on the day, I sympathize! But eliminating rules on electronic devices in the courthouse is probably a losing battle and anyway not one the judge was interested in fighting yesterday.
Most of the day (I had to leave early, so I mean most of the time I was there) was taken up with the testimony of Anne Champion, the Gibson Dunn lawyer who apparently drew the short straw. She testified about two main topics: Donziger’s execution of a second retainer agreement with the FDA after the RICO injunction had issued, and his failure to assign his rights under it; and his weaving, bobbing, and attempts not to provide Chevron with discovery about his finances when Chevron was seeking post judgment discovery in aid of execution of the costs judgment against him.
On both topics, the prosecutor, Rita Glavin, took Ms. Champion through the chronology methodically, covering the parties’ public filings, their email correspondence with each other, and Judge Kaplan’s orders. I had to leave before the cross-examination, though I gather that Mr. Kuby was really just getting started. Here are my overall impressions:
- This is really going to be a case that turns on the law, not on the facts. There seems to be little dispute about the facts. Did Donziger execute a new contingent fee agreement after the injunction was issued? Yes—there seems to be no question. Did the new agreement promise him a stake in the judgment? Yes. Is there some legal reason why his acts weren’t a violation of the injunction? Maybe. Maybe he is right that because his percentage interest under the new agreement wasn’t higher than his percentage interest under the old agreement, “no harm, no foul” (at least for purposes of criminal liability). Maybe his overarching argument that he can’t be in contempt because his purpose was to violate the injunction so that he could appeal it is right. And of course Donziger will be able to appeal the decisions against him on issues such as whether the private prosecutor had an impermissible conflict of interest or whether the prosecution was impermissibly vindictive. But there doesn’t seem to be much dispute about the facts surrounding the contempt.
- A corollary: I am not sure that Mr. Kuby will be able to accomplish much on cross-examination. Ms. Champion’s testimony consisted largely of reading documents from the RICO case into the record, or summarizing them. Especially in light of Judge Preska’s pretrial rulings, I suspect he will not be allowed to get in to much of what he wants to get in to, but even if he could, what would he accomplish? What would anything Anne Champion says have to do with whether Steven Donziger violated the court’s orders, or whether he did so knowingly or willfully?
- I’ve remarked on this at various times over the years: it’s remarkable to me how many of Donziger’s wounds are self-inflicted. He didn’t seem to understand how discovery works, for example. He seems to have thought that you can serve some objections to a request for production, lose a motion to compel, and then come up with some new objections as a basis for refusing to produce. He doesn’t seem to have realized that you have to produce a privilege log when you assert a privilege. His emails with Gibson Dunn gave Chevron’s lawyers plenty of rope with which to hang him. On a similar note, I think it is remarkable how far Donziger has been willing to go to avoid conceding defeat. You could see that as a positive or as a negative, but from the lawyer’s perspective, it’s really important to know how to lose a case. If you ask why Steven Donziger is facing criminal contempt charges, I think a big part of the answer is that he continued to take positions long after a reasonable lawyer would have concluded they were hopeless.
I want to give one more big-picture thought. One of the things I’ve learned from watching the last weeks and months of Donziger drama on social media is to be thankful I’ve never really been tempted to write about or even take strong public positions on things I don’t know much about. So much of the commentary on Twitter is pretty apocalyptic: this is a Stalin-era show trial orchestrated by Chevron with its hand-picked judge and its own lawyer as prosecutor, with the public barred from access to the court and with the fate of the Ecuadorian rain forest at stake. The truth of the matter is that the Lago Agrio plaintiffs have already lost their case against Chevron, unless something really unexpected happens; that Mr. Donziger has been disbarred and his final appeal dismissed because he had previously been found to have orchestrated a fraud; that the trial is not about the Ecuadorian environmental situation or Chevron at all, but about whether Mr. Donziger willfully disobeyed the courts’ orders, and that the facts on that point don’t seem to be in much dispute; and that even in the pandemic, the court seems, to me at least, to have provided good public access to the proceedings even though Judge Preska took the view that “the revolution will not be televised.” Who are these people who write with such assurance and conviction about a case that bears little if any resemblance to the case that is actually being tried? My biggest question about the case is the wisdom of bringing it in the first place. As I’ve written before, it seems to me that Mr. Donziger has been punished enough, and given that the case is being tried as a petty offense, I don’t see how it warrants the extraordinary expense in time and money.