Judge Kaplan has ordered Steven Donziger, the former lawyer for the Ecuadoran plaintiffs in the Lago Agrio case, to show why he should not be held in criminal contempt for failing to obey the judge’s injunction. The judge has also appointed prosecutors to prosecute the case. The claims run the gamut of the injunction; Judge Kaplan points to Donziger’s refusal to turn over his devices and passwords for forensic inspection, his refusal to surrender his passport, his failure to assign all interests he had in the 2011 agreement between the Lago Agrio plaintiffs, the Amazon Defense Front, and Donziger, his sale of part of his interest in the Ecuadoran judgment, etc. Here are a few thoughts:

  • Judge Kaplan had referred the case earlier to the US Attorney’s Office for prosecution. We see from his order that the US Attorney had refused to prosecute the case, claiming that the prosecution “would require resources that we do not readily have available.” On the one hand, the refusal gives ammunition to Donziger in the world of public relations. On the other hand, Chevron can point to the government’s proffered reason for turning down the case. But on this point, I would say the PR advantage goes to Donziger, as prosecutors can usually find the resources to prosecute crimes they regard as serious.
  • Donziger is up against the collateral bar doctrine here. Allow me to talk a little bit about law and equity. At common law, a case results in a judgment, which is just a declaration of who owes what to whom. If you don’t pay the amount that the judgment says you are liable to pay, you haven’t violated a court order. Further writs are required before the rubber meets the road. But in equity, if a judge issues an injunction that requires you to do something or not to do something, and you disobey it, you have violated a court order and may be guilty of contempt. So what do you do if a judge issues an injunction that you think is wrong? Well, you can be found in contempt and then appeal (which Donziger has done—the judge found Donziger in civil contempt in May). Then you can seek a stay of the sanctions pending appeal. Donziger unsuccessfully sought a stay in the district court, but as far as I can determine did not seek a stay from the Second Circuit. But in the absence of a stay, you disobey the order at your peril, and if you are accused of violating it, it is, in general, no defense to say that the order was erroneous. This is the “collateral bar rule,” and if it was good enough for Martin Luther King, it probably is good enough for Steven Donziger. If you are engaged in prinipled civil disobedience, as Donziger might or might not assert, then you can disobey the order and take your lumps. Otherwise, you really ought to do as the judge has decreed.
  • It seems that the criminal contempt case will be heard before Judge Preska rather than Judge Kaplan. This is welcome news to Donziger, no doubt, as Judge Kaplan has handed him defeat after defeat. It remains to be seen whether he gets a better result with a different judge. Part of his challenge will be the need to focus on the issue at hand rather than to relitigate the merits of the RICO case or even the environmental tort case, which as I suggested above are not really at issue now.

I asked the parties if they had a comment on this latest development. Here is Chevron’s comment:

The Court has ordered Steven Donziger to stand trial on six counts of criminal contempt due to his flouting of multiple court orders and judgments over many years. The Court had previously held Mr. Donziger in civil contempt, including by profiting from the corrupt Ecuadorian judgment against Chevron, despite the express prohibition against doing so in the RICO judgment. The Court has now instituted criminal proceedings to enforce its orders and judgments in the face of Mr. Donziger’s intransigence and disrespect for the judicial system and the rule of law.

Here was Steven Donziger’s comment:

I strongly believe Judge Kaplan’s latest ruling ordering that I be held in criminal contempt for refusing to turn over my computer, cell phone, and passport to Chevron is unlawful. The fact Judge Kaplan issued this order based on disputed findings in a civil case that have been rejected by 16 appellate judges in other jurisdictions reflects poorly on his own integrity. As fully documented in various court filings, Judge Kaplan has also committed multiple questionable, intellectually dishonest, and even corrupt acts to manipulate evidence and deliver outcomes to Chevron designed to undermine the legitimate Ecuador judgment, which has been affirmed unanimously by the country’s highest court. The Supreme Court of Canada also has endorsed the right of the Ecuadorians to pursue enforcement of the judgment notwithstanding Judge Kaplan’s disputed findings.

More broadly, several of Judge Kaplan’s recent orders in this matter directly violate appellate court decisions in three countries—the United States, Canada, and Ecuador—authorizing me and others to enforce the Ecuador judgment against Chevron assets. Judge Kaplan has a long history of engaging in attacks on me and my family—including on my wife and young son—and he has a history of questionable behavior that reflects poorly on the reputation of the U.S. judiciary, as outlined in my statement of June 20, 2019. I expect to address these latest allegations in court and I will continue efforts to assist my clients in holding Chevron fully accountable for its human rights violations and attacks on Indigenous culture in Ecuador.