MEMORANDUM AND ORDER

LEWIS A. KAPLAN, District Judge.

Steven Donziger, a suspended lawyer,1 has led a corrupt effort to extort billions of dollars from Chevron Corporation ("Chevron"). One element of that scheme was the fraudulent procurement of a multibillion judgment from a provincial court in Ecuador (the "Ecuador Judgment"). Chevron brought this action against Donziger and others to enjoin enforcement of the Ecuador Judgment, to prevent Donziger from profiting from his actions, and for other relief. After a lengthy trial on the merits, the Court ruled in Chevron's favor. In consequence, Donziger is subject to a constructive trust and a permanent injunction (the "RICO Judgment") as well as a money judgment for more than $800,000 (the "Money Judgment").

The RICO Judgment has been affirmed on appeal. In the words of the Court of Appeals, "[t]he record in the present case reveals a parade of corrupt actions by the LAPs' [i.e., the Ecuadorian plaintiffs'] legal team, including coercion, fraud, and bribery, culminating in the promise to [Ecuadorian] Judge Zambrano of $500,000 from a judgment in favor of the [Ecuadorian plaintiffs, the] LAPs."2 Donziger has exhausted all appellate avenues with respect to the RICO Judgment. And while the Money Judgment is on appeal, Donziger neither has paid it nor obtained a stay. So both judgments are fully enforceable. Accordingly, Chevron has undertaken supplementary proceedings to locate assets to satisfy the Money Judgment, to determine whether Donziger has complied with the RICO Judgment, and to obtain remedies for alleged non-compliance.

Donziger largely has stonewalled Chevron's efforts. He has disobeyed explicit provisions of the RICO Judgment and defied court process compelling him to provide discovery and to take other actions. He has ignored the fundamental "proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal."3 He has been held in civil contempt for, among other things, his disobedience of court orders compelling him to provide perfectly appropriate discovery. And he has been subjected to coercive fines, all to no avail. He has been charged with criminal contempt, in some respects for violating the RICO Judgment and in other respects for disobeying post-judgment discovery and related orders.

There now are two motions before the Court. One is Donziger's motion to stay the December 12 hearing in light of the pendency of the criminal contempt charges, trial of which now is set for June 15, 2020.4 The other is by Chevron for a determination that Donziger has waived, and therefore is precluded from asserting, the Fifth Amendment in a December 12 hearing — which orignally was scheduled for June 10, 2019 and delayed for months essentially by Donziger5 — to determine Donziger's claim that he purged himself of civil contempt of one portion of a March 5, 2019 court order.6

Chevron's papers fully demonstrate that Donziger's motion for a stay or adjournment of that hearing and a stay of Chevron's motion should be denied. But the Court thinks it useful to place the matter of a stay or adjournment of the impending hearing in a fuller context. It briefly addresses also Chevron's motion with respect to the Fifth Amendment.

I. The Motion for a Stay or Adjournment

A. Facts

1. The Forensic Inspection Protocol

On March 5, 2019, the Court issued a forensic inspection protocol (the "Protocol") that required Donziger to (a) identify and provide certain additional information with regard to his electronic devices, media, and web-based accounts in writing on or before March 8, 2019, and (b) surrender his devices and allow on March 18, 2019 a Neutral Forensic Expert to access his accounts for forensic imaging.7 The identification requirements are set out in Protocol ¶ 4, the device surrender and account access in Protocol ¶ 5. The reasons underlying this action are set out in a prior memorandum and need not be repeated here.8 Suffice it to say that Donziger has been stonewalling appropriate post-judgment discovery for month after month, which has necessitated that his electronically stored information be reviewed by others.

Donziger made clear from the outset that he would not comply with the Protocol. Indeed, he invited a contempt finding.9 Chevron moved to hold him in civil contempt. And on May 23, 2019, the Court found Donziger in civil contempt of paragraph 4 of the Protocol (as well as other legal obligations) and imposed escalating coercive fines in an effort to induce compliance. It did the same on June 4, 2019 with regard to Donziger's defiance of paragraph 5 of the Protocol.

Following the civil contempt adjudications, Donziger took some steps in the direction of compliance with paragraph 4 of the Protocol. Chevron disputed their sufficiency. In consequence, the Court scheduled a hearing for June 10, 2019 that now is to resume on December 12, 2019 before Magistrate Judge Lehrburger. Nothing pertaining to paragraph 5 is pending before Magistrate Judge Lehrburger. And the hearing relating to paragraph 4 concerns only whether Donziger, after he was held in civil contempt on May 23, 2019, purged himself of that civil contempt of that provision of the Protocol. It has nothing to do with whether he defied paragraph 4 of the Protocol between March 2019 and May 23, 2019. As just noted, he made clear that he would not comply and invited the contempt determination.

2. The Appeal

Donziger never appealed from nor sought other review of the Protocol. He did appeal, however, from the May 23, 2019 decision that, among other things, held him in civil contempt of paragraph 4 of the Protocol.10 He did not seek any stay from the Circuit. His appellate brief raises no issue concerning the merits of the civil contempt determination with respect to paragraph 4 of the Protocol or the Protocol itself.11 He never appealed from the June 4, 2019 order holding him in civil contempt of paragraph 5. Thus, the appeal from the May 23, 2019 civil contempt determination is the only such appeal Donziger has filed.

3. The Criminal Contempt Charges

On July 31, 2019, this Court charged Donziger with six counts of criminal contempt of court. Three counts charge violations of the underlying merits judgment in this case. One relates to an order that Donziger surrender his passport. Two relate to his violations of the Protocol. There is no relevant relationship between the December 12, 2019 hearing and those two counts.

Count II charges that Donziger violated paragraph 5 of the Protocol. But paragraph 5 is not implicated at all in the December 12, 2019 hearing.

Count I charges that Donziger disobeyed paragraph 4 of the Protocol for all or part of the period from March 8, 2019 to and including May 28, 2019. Not surprisingly in view of his claimed intention to go into civil contempt, Donziger made not even a colorable effort to comply with paragraph 4 of the Protocol until May 29, 2019.12

Accordingly, there is no real overlap or relationship between Count I of the criminal contempt case and the December 12 hearing apart from the obvious background fact that both arise in the context of Protocol paragraph 4. They concern two different time periods. Moreover, the crime of criminal contempt is completed at the first moment the contemnor violated the order in question, and that is so regardless of any subsequent compliance.13 As the criminal contempt charge concerns a different and earlier time period than the December 12 hearing, there is no overlap between the two matters at all.

B. Discussion

The discovery requests with which Donziger failed to comply — the failure of which led to orders to comply, to the Protocol and ultimately to the contempt proceedings — were served in April 2018, almost two years ago. Donziger simply has refused to discharge his obligations.

He now seizes on the criminal contempt charges — which were filed on July 31, 2019 and are unlikely to be tried until June 15, 2020. But there is nothing in the criminal contempt charges or the broader context of this case that warrants any exercise of discretion in his favor on this issue. Five of the six criminal contempt charges have nothing at all to do with the December 12 hearing. That hearing is directed solely to the very narrow issue whether Donziger — as he has claimed — in fact complied with paragraph 4 of the Protocol on or after March 29, 2019. And that issue does not bear on the criminal contempt matter for the very simple reason that the criminal charge is that he disobeyed paragraph 4 during a different time period.

II. The Fifth Amendment Motion

Chevron's papers arguably demonstrate also that an invocation by Donziger at the December 12 hearing of the Fifth Amendment privilege against self incrimination, if permitted and otherwise unremedied, would leave Chevron without the ability to challenge on cross examination Donziger's assertions of compliance with paragraph 4 of the Protocol. This would be extremely unfair, it contends, in that it would result in Donziger relying on those assertions that he voluntarily chose to make in the three declarations in which he claimed that he had complied without his adversary having a proper opportunity to challenge Donziger's statements.

If Chevron were to prevail on its contention, one appropriate remedy in these circumstances might well be to preclude Donziger from asserting the Fifth Amendment in the hearing on the ground that his prior statements in the declarations waived his privilege on the subject of his compliance or lack thereof with paragraph 4. That remedy might be coupled with the drawing of an inference adverse to Donziger from his assertion of the privilege.14 In the posture of this case, however, another remedy is available and possibly of equal efficacy.

Here, Donziger asserts that he has purged himself of his contempt of paragraph 4 of the Protocol. On that question, he bears the burden of going forward and probably the burden of persuasion. The only evidence he thus far has offered to support that contention is the three declarations. Should he refuse to testify and to respond to appropriate questions on cross examination, whether on the basis of the Fifth Amendment or for another reason, the Magistrate Judge might well consider disregarding the three declarations.15 Were this to occur, Donziger's contention that he has purged himself of his civil contempt of paragraph 4 might well fail, leaving him in civil contempt in accordance with the Court's May 23, 2019 order.

Conclusion

Donziger's letter motion to stay or adjourn the December 12, 2019 hearing, to hold Chevron's motion in abeyance, and to permit his counsel in the criminal contempt case to make a special appearance or, alternatively, to give Donziger "an opportunity either to address the substance of Chevron's motion or pursue appellate rights [Dkt. 2405] is denied in all respects,16 provided, however, that the Court has considered the submission by Donziger's criminal defense counsel on this occasion and, on appropriate application and for good cause, might do so in the future. Chevron's motion in limine for an order precluding Donziger from refusing on the basis of his Fifth Amendment privilege against self incrimination to answer questions as to whether he has cured his contempt of Paragraph 4 of the Forensic Inspection Protocol Order [Dkt. 2391] denied without prejudice to the assertion of its contentions before the Magistrate Judge.

SO ORDERED.