U.S. District Judge Loretta Preska denied Donziger's bid for a video or audio stream to allow what the disbarred attorney predicted would have been "hundreds or thousands" of people from all over the world to follow the proceedings beginning May 10. Donziger faces misdemeanor charges arising from an underlying civil suit brought by Chevron over his $9 billion win against the oil giant in Ecuador for alleged environmental abuses.
"Consistent with the Federal Rules of Criminal Procedure, the court will not provide remote audio-visual access," the judge said, adding in a footnote that Rule 53 bars "broadcasting" of proceedings.
Pandemic-era legislation changed matters slightly, but not enough, the judge said, referencing the first stimulus bill, passed in late March 2020.
"The court observes that the CARES Act authorizes the use of remote video teleconferencing for some criminal proceedings. Notably absent from the list of proceedings for which using such technology is authorized, however, are trial proceedings," she wrote.
At the same time, the judge agreed with Donziger to request a larger courtroom and to set up one or more overflow observation rooms for the media and public.
Donziger, who has been under house arrest since August 2019 and recently lost a Second Circuit bid to be freed, criticized the decision barring a livestream.
"It is critical that lawyers and supporters from all over the world be able to listen to this trial," he said Wednesday, calling the ruling "an absolute unnecessary burden on me intended to limit public scrutiny of a trial designed to convict me without due process of law."
Donziger faces misdemeanor charges of disobeying court orders in Chevron's underlying civil case. The judge there, U.S. District Judge Lewis Kaplan, directed that criminal contempt charges be instituted after Donziger disobeyed orders to provide access to his electronic devices and internet accounts for inspection.
In the Ecuador case, Donziger represented indigenous communities suing Chevron over predecessor Texaco Inc.'s extraction practices in an Amazonian area in the northern part of the country, where for decades Texaco allegedly dumped oil in numerous unlined open pits near the river. His side won a $9.5 billion judgment.
Judge Kaplan ruled in 2014 after a bench trial that Donziger had grossly manipulated the Ecuadorian judicial system through bribery and fraud, and the judge blocked the huge judgment from being enforced in the U.S. That ruling was later upheld by the Second Circuit.
In March 2019, years after the bench trial, Judge Kaplan issued an order for the collection, imaging and examination of Donziger's devices for Chevron's civil suit. Donziger refused, citing due process and client confidentiality.
Private prosecutor Rita Glavin of Glavin PLLC did not immediately respond to a request for comment.
The prosecution is represented by Rita Glavin and Sareen Armani of Glavin PLLC and Brian Maloney of Seward & Kissel LLP.
Donziger is represented by Ron Kuby and Rhiya Trivedi of Kuby Law.
The case is U.S. v. Donziger, case number 1:19-cr-00561, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Stewart Bishop and Dorothy Atkins. Editing by Jill Coffey.
For a reprint of this article, please contact reprints@law360.com.
