I have not been writing about the remnants of the Lago Agrio case. Mostly that’s because the issues that got me interested in the case in the first place—the judgment recognition issues and the § 1782 issues—are over and done, but it’s also because I am sad about how things turned out for Steven Donziger and it’s not so much fun to write about anymore. But readers keep asking, so here for your prurient enjoyment is what is happening in the Lago Agrio case in early 2020.
United States v. Donziger
The government, represented by appointed counsel rather than by the US Attorney, is prosecuting Donziger for criminal contempt of Judge Kaplan’s injunction. As far as the docket reflects, the main points of contention so far have involved the conditions of Donziger’s pretrial release. He is confined to his New York home, and the government has described him as a flight risk. It probably didn’t help that at one point Donziger apparently had two apparently valid US passports. Still, if I were the judge I likely would conclude it reasonable to release Donziger with bail and reasonable sureties. Everyone seems to agree that he has turned in all of his travel documents now, and it just seems unlikely to me that he would flee. What would he do, hole up in the Ecuadoran embassy? I can’t imagine the current Ecuadoran government would have any appetite for that.
Chevron v. Donziger
Chevron is continuing to press its civil claims against Donziger. It is trying to collect on judgments it holds against him and is also continuing to seek to compel compliance with all aspects of Judge Kaplan’s injunction, including turnover of electronic devices. Chevron has also sought to hold Aaron Marr Page, who worked with Donziger on the Chevron case, in contempt of court. FRCP 65 does provide that persons “in active concert or participation with” parties bound by an injunction are themselves bound. I haven’t studied the factual basis for seeking to punish Page, but I have to say that it has the appearance of piling on. At a very general level, you might ask, now that the Ecuadoran judgment appears to be as dead as a doornail, and given that Donziger doesn’t seem to have the money to pay the judgments, what is the point of the continued litigation, except to teach a lesson? It may be that Donziger has not yet assigned all of his rights in the proceeds of the Ecuadoran judgment to Chevron, and if that’s so, then I get it, but otherwise, I think the continued litigation is over the top. But that may just be my own exhaustion—I have been writing about the case for nearly ten years!
Donziger Disciplinary Proceedings
The Attorney Grievance Committee of the New York bar is pursuing severe disciplinary sanctions against Donziger, and as I wrote almost a year ago, the New York courts have held that Judge Kaplan’s findings of fact are entitled to preclusive effect. So the outcome seems like a foregone conclusion. Donziger has touted a recent article by Prof. Charles Nesson casting doubt on the appropriateness of collateral estoppel here. Leaving aside the point that the issue has already been decided in a way that seems, to me at least, to be obviously right, it seems to me that Donziger has remedies that he has not tried to use. It is too late now to take an appeal from the findings of fact, which Donziger famously failed to do after the RICO judgment, but Donziger could have mounted a collateral attack on the judgment under FRCP 60(b)(6). I am not sure why he did not do this. Maybe he would say it would be futile to bring the motion before Judge Kaplan, although a denial of the motion would be appealable to the Second Circuit. But it seems to me that the basic rule that a lawyer can be disciplined based on final findings of fact by a court, without giving the lawyer a chance to relitigate the facts, is right.
My plan is to continue to not write about the case until there are decisions to report. In other words, I am not going to give the blow-by-blow that I gave in earlier years.