Keker & Van Nest today moved to withdraw from the RICO case challenging an $18 billion Ecuadorian judgment that Chevron contends was procured by fraud. (For prior posts on the case, see here.) Keker is counsel to Steven Donzinger, a key lawyer who helped obtain the initial judgment in Ecuador. (Keker had filed the motion on Friday by an order to show cause, but the Court directed that the application be made through a regular noticed motion, which Keker filed today.) The motion blames the withdrawal on Mr. Donzinger’s inability to pay fees sufficient to keep up with what Keker describes as a “Dickensian farce”:
It is with regret that undersigned counsel is forced to make this motion to withdraw. This is an extraordinary case, which has degenerated into a Dickensian farce. Through scorched-earth litigation, executed by its army of hundreds of lawyers, Chevron is using its limitless resources to crush defendants and win this case through might rather than merit. There is no sign that Chevron wants a trial on the merits. Instead, it will continue its endless drumbeat of motions— for summary judgment, for attachment, to reinstate long-dismissed claims, for penetration of the attorney client privilege, for contempt and case-ending sanctions, to compel discovery already denied or deemed moot, etc., etc.—to have the case resolved in its favor without a trial. Encouraged by this Court’s implacable hostility to Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger. Donziger does not have the resources to defend against Chevron’s motion strategy, and his counsel should not be made to work for free to resist it. . . . Chevron’s litigation tactics, which this Court has endorsed and encouraged throughout these proceedings, notwithstanding the dictates of Federal Rule of Civil Procedure 1, have made the costs of this litigation unsustainable to Donziger. Simply put, Donziger cannot afford to pay what is required to litigate effectively against a hostile wealthy corporation in a hostile court. As set forth in the accompanying Declaration of John W. Keker, Donziger has since September 2012 fallen into significant payment arrears such that Keker & Van Nest is now owed more than $1.4 million in unpaid fees and costs, including for work presently being conducted. Keker Decl. ¶ 9. More significantly, to even stay alive in this case, without appearing at depositions or other frills, through discovery and trial will cost another six to ten million dollars in attorney time and costs—an amount about equal to what we estimate Chevron is paying its lawyers each month. See id. ¶ 10. There is no reasonable prospect of payment of the current receivable, nor of payment of the future fees and costs anticipated to be incurred through trial. See id. ¶ 11. Keker & Van Nest therefore seeks to withdraw as counsel. Mr. Donziger will represent himself and his law firms for the remainder of the pretrial phase of this case. If he is able to hire (or re-hire) outside counsel for trial, he will do so. But for now, his counsel is unwilling to continue on a pro bono basis under the current conditions, and should not be made a slave to this impossible situation.