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Case 0:08-md-01916-KAM Document 1080 Entered on FLSD Docket 04/27/2016 Page 1 of 21

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
Case No. 08-01916-MD-MARRA
IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,
ALIEN TORT STATUTE AND
SHAREHOLDER DERIVATIVE LITIGATION
______________________________________________/
This Document Relates To:
ATS ACTION
______________________________________________/
08-80465-CIV-MARRA
DOES (1-144), et al.,
Plaintiffs,
v.
CHIQUITA BRANDS INTERNATIONAL,
INC., et al.
Defendants.
______________________________________________/
DEFENDANT CHIQUITAS SECOND MOTION TO COMPEL COMPLIANCE
WITH THE COURTS ORDERS ON WITNESS-PAYMENT DISCOVERY

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INTRODUCTION
Defendants Chiquita Brands International, Inc. and Chiquita Fresh North America
LLC (collectively Chiquita) respectfully move the Court, pursuant to Federal Rule of Civil
Procedure 37(b), for an order compelling Plaintiffs counsel, Terrence Collingsworth and Conrad
& Scherer (C&S) (collectively Plaintiffs Counsel), to comply with two orders issued by the
Court in 2015 requiring Plaintiffs Counsel to produce to Chiquita documents regarding
payments to witnesses in this case that Plaintiffs Counsel have improperly withheld. The Court
ordered this discovery to enable Chiquita to prepare for the preservation depositions of three
paramilitary witnesses two of which have still not occurred that the Court has authorized
the ATS plaintiffs to take prior to the opening of fact discovery. Yet, nearly one year after the
Court first ordered this discovery, Plaintiffs Counsel continue to withhold highly relevant
documents regarding their efforts to influence the testimony of paramilitary witnesses in this
case.
Specifically, Plaintiffs Counsel have refused to produce documents regarding
payments to Ivn Otero, the agent and associate of at least two paramilitary witnesses in this
case, even though the Court has twice overruled Plaintiffs objections to Chiquitas requests for
such documents. Otero is a central figure in Plaintiffs Counsels efforts to pay paramilitary
witnesses in various cases around the country. As one federal court has observed, there is a
staggering amount of evidence connecting Otero to these witness-payment schemes. (Ex. 1, at
29; see also id. at 28-30.) 1 Indeed, just three months ago, Otero offered money to a paramilitary
witness to testify falsely in Plaintiffs Counsels long-running lawsuit against Dole Food

All exhibits cited herein are attached to the Declaration of Eric Hellerman (Hellerman Decl.),
attached hereto.

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Company (the Dole Action). 2 (See Ex. 2, at 6.) After this misconduct was brought to light,
the Dole Action was dismissed with prejudice. (See Ex. 3.)
Although Plaintiffs Counsel have improperly attempted to conceal this evidence
from Chiquita, documents from the public record in the Dole Action reveal that Otero is deeply
involved in witness payment efforts in this case as well:

A document from the Dole Action that was never produced to Chiquita shows that
Plaintiffs Counsel circulated an email among themselves referencing $58,800 to
Ivn Otero for Chiquita, Dole and Drummond Kids. (Ex. 4.) Plaintiffs Counsel
have admitted that around the same time, Jos Mangones Lugo (Mangones), one of
the paramilitaries whose deposition has been ordered by the Court but has not yet
been scheduled, requested financial assistance from Otero for his daughters
education. (See Ex. 5, at 12.)

A 2012 memo from Lorraine Leete to Terry Collingsworth (the Leete Memo)
indicated that the paramilitary witness Edwar Cobos Tllez (Cobos) had requested
or was offered an unknown sum to serve as an expert witness against Chiquita.
(See Ex. 6, at 4.) Plaintiffs Counsel had produced the Leete Memo to Chiquita, but
the section referencing the potential payment to Cobos was improperly and
inexplicably redacted. (Compare id. with Ex. 7, at 4.)

Another section of the Leete Memo that was improperly redacted shows that Otero
was the intermediary through whom Plaintiffs Counsel attempted to broker a deal
with the attorney for Ral Hasbn, a key paramilitary witness in this case, for Hasbn
to be paid as an expert witness against Chiquita. (Compare Ex. 8 with Ex. 7, at
1.) During those negotiations, Plaintiffs Counsel promised Hasbn at least
$200,000. (See Ex. 9.) Hasbn, who had previously testified that Chiquita was
extorted by the AUC, subsequently changed his testimony and claimed that Chiquita
paid the AUC voluntarily. (See D.E. 837, at 11.)

A third portion of the Leete Memo that was improperly redacted shows that Cobos
introduced Otero to the attorney for Salvatore Mancuso, yet another paramilitary
witness in this case. (Compare Ex. 6 with Ex. 7, at 4.) Plaintiffs Counsel have
already admitted to paying at least one attorney (Jarley Maya Snchez) to arrange a
meeting with Mancuso. (See Ex. 5, at 9.)
Plaintiffs Counsels refusal to produce documents related to Otero and improper

use of redactions to conceal responsive information are flagrant violations of this Courts prior
2

Juana Perez 1A v. Dole Food Co., No. BC412620 (Cal. Super. Ct.).

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rulings. They also reflect Plaintiffs Counsels broader pattern of discovery abuses related to
evidence of their witness payments. This misconduct has led one federal court to apply the
crime-fraud exception to Plaintiffs Counsels work product claims and caused the Dole court to
sanction Plaintiffs Counsel in the amount of $48,000 (see Exs. 1 & 33). This Court should also
firmly reject Plaintiffs obstructionist and evasive discovery tactics.
Chiquita respectfully requests that the Court enter an order compelling
compliance with its discovery rulings and sanctioning Plaintiffs Counsel for their repeated
violations of the Courts prior Orders. The Court should direct Plaintiffs Counsel to (i) produce,
within 72 hours, all documents related to the fact of potential payments to Otero, including
payments offered, considered, or requested, (ii) produce, within 72 hours, unredacted versions of
documents that were impermissibly redacted, (iii) preserve all documents and files related to
potential payments to witnesses and their agents, relatives, and associates, and (iv) reimburse
Chiquitas fees and costs in preparing and litigating this motion.
BACKGROUND
Despite Chiquitas diligent and painstaking efforts over the past year, Plaintiffs
Counsel still have failed to comply with two separate Orders issued by the Court, in May and
August of 2015, requiring them to produce, with limited exceptions, all documents concerning
the fact of payments (including payments made, offered, considered, or requested) to witnesses
in this case, or to their agents, associates, and relatives. On several occasions since August,
Plaintiffs Counsel have purported to satisfy their discovery obligations with small supplemental
productions and amended written discovery responses. Each time, however, Chiquitas review
of the supplemental responses, along with publicly available documents from other cases,
revealed several gaps in the productions and disproved prior representations made by Plaintiffs
Counsel regarding their responses. And each time, rather than rushing to seek judicial
3

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intervention, Chiquita patiently attempted to resolve the outstanding deficiencies by writing


detailed follow-up letters, participating in meet-and-confer sessions, and agreeing to Plaintiffs
Counsels repeated requests for additional time to address Chiquitas concerns. Throughout this
process, however, Plaintiffs Counsel have dragged their feet, concealed important facts and
documents, and made outright misrepresentations regarding the material that they were
withholding.
A.

Chiquitas Document Requests and The Courts Orders Overruling


Plaintiffs Counsels Objections
On April 7, 2015, the Court granted certain ATS Plaintiffs request for leave to

take the depositions of paramilitary witnesses Jess Roldan Prez, Jos Mangones Lugo, and
Freddy Rendn Herrera. At the same time, the Court permitted Chiquita to take discovery of all
ATS Plaintiffs regarding their involvement in a witness-payment scheme, in light of allegations
. . . against Attorney Terrence Collingsworth . . . [that he was] making unlawful payments to
Colombian paramilitary witnesses. (D.E. 759, at 10, 19.) Shortly thereafter, Chiquita served
requests for production of documents and interrogatories on all Plaintiffs counsel. (See D.E.
785-1.) Request for Production (RFP) Nos. 1 and 3 sought documents regarding anything of
value (i.e., Payments) offered to, given to, considered for, or requested by witnesses in this
case, or their agents, relatives, and associates. 3 On May 5, 2015, the Court issued an Order (the

RFP No. 1 requests [a]ll Documents regarding any Payment by, on behalf of, or at the request
of Plaintiffs Counsel for the benefit of any Witness or any Agent, Relative, or Associate of such
a Witness. This Request includes without limitation Documents concerning Payments offered,
considered, or requested, but not made.
RFP No. 3 requests [a]ll Documents relating to Payments by, on behalf of, or at the request of
any Plaintiffs Counsel to any Paramilitary, or to Agents, Relatives, and Associates of any
Paramilitary, that Plaintiffs or Plaintiffs Counsel have produced or received in connection with
any legal proceeding or investigation. This Request includes without limitation (i) all Documents
produced in response to document requests or subpoenas relating to Payments by, on behalf of,
or at the request of Plaintiffs Counsel to Paramilitaries in Drummond Co., Inc. v. Collingsworth,
(continued)
4

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May 5 Order), overruling several of Plaintiffs objections, including all work product
objections to RFP Nos. 1 and 3.
Despite the Courts ruling, Plaintiffs Counsel continued to withhold responsive
documents and information. On July 1, 2015, Chiquita filed a motion to compel compliance
with the Courts May 5 Order with respect to RFP Nos. 1 and 3. (See D.E. 837.) On August 4,
2015, the Court issued an order (the August 4 Order) granting the motion and reiterating that,
with respect to RFP Nos. 1 and 3, the Court had previously OVERRULED all work product
privilege objections in their entirety. (D.E. 872, at 2.) The Court directed Plaintiffs Counsel
to produce to Chiquita a complete set of responsive documents, including all responsive
materials that contain any information regarding the fact of payments made to potential fact
witnesses in this case because, among other things, the work product doctrine does not apply to
shield those documents. (D.E. 872, at 2-3.) The only exceptions were for portions of (a)
internal communications between counsel which relate to the propriety of fact witness
payments or (b) documents concerning other topics unrelated to the fact of [] witness payments
[that] are purportedly protected by work product or [the] common interest privilege. (Id. at 35.) Plaintiffs Counsel were permitted to redact such information provided that they
simultaneously submitted unredacted versions to the Court for in camera review. (See id.)

Case No. 2:11-cv-3695-RDP (N.D. Ala.) and in Gmez v. Dole Food Co., Inc., Case No.
BC412620 (Superior Court of the State of California, County of Los Angeles); and (ii) full
transcripts of any deposition taken in the Drummond and Gmez cases in which there is any
reference to such Payments. Ex. 26, at 11-12. The Courts May 5 Order sustained Plaintiffs
objections to RFP No. 3 to the extent the request is directed to the issue of witness payments to
other persons in other litigation who are not prospective witnesses in this case. D.E. 797, at 4.
Effectively, that Order replaced the term Paramilitary in RFP No. 3 with Witness.

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B.

Plaintiffs Counsels Continued and Ongoing Failure to Comply with the


Courts Rulings
1.

Plaintiffs Counsels Deficient Supplemental Productions in August 2015


and December 2015

Following the August 4 Order, on August 6, 2015, Plaintiffs Counsel produced


47 new documents and 11 documents that had been previously redacted. However, the
production was almost completely devoid of email communications among Plaintiffs Counsel
that one would have expected to exist based on the limited information Plaintiffs Counsel had
supplied. For example, although Plaintiffs Counsel admitted in their interrogatory answers that
numerous paramilitaries requested money or like assistance from them or from Otero, no
documents reflecting those requests were produced. (See Ex. 10, at 11-12 (requests from
paramilitary witnesses Mangones and Jairo Samper Cantillo (Samper)).) On October 2, 2015,
Chiquita inquired with Plaintiffs Counsel about this apparent deficiency, among others (see Ex.
11, at 4). Plaintiffs Counsel initially balked at producing additional documents on work
product grounds even though the Court had expressly overruled those objections before
agreeing, on November 13, 2015, to supplement their production. (Ex. 12, at 4]; Ex. 13, at
1.)
Over a month later, on December 24, 2015, Plaintiffs Counsel produced 46 more
responsive documents. Based on a careful review of these additional documents, Plaintiffs
Counsels various discovery responses, and documents from the Dole Action, Chiquita noted that
Plaintiffs were continuing to withhold several categories of responsive material, including, inter
alia, documents (1) evidencing payments to Otero, whom Plaintiffs Counsel had by then
identified as having a relationship with a witness in this case, (2) regarding payment requests
from paramilitary witnesses Crdoba (one of Oteros clients) and Samper, requests that
Plaintiffs Counsel had by then acknowledged in interrogatory answers, and (3) internal
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documents related to payments to paramilitary witnesses Mancuso and Mangones that Chiquita
had identified from a privilege log that Plaintiffs Counsel had filed in the Dole Action. (See Ex.
14, at 2, 5, 7, 14.) Additionally, Plaintiffs Counsel had redacted approximately 14 of the 46
documents without explanation, including the entire body of the Leete Memo. See supra, at 2
(describing key details of the Leete Memo). Based on a filing in the Dole Action, Chiquita
understood at the time that the Leete Memo discuss[ed] a link between Otero and the payment
negotiations with Jarley Maya Snchez and Ral Hasbn and was therefore clearly responsive.
Ex. 15, at 3 (describing June 15, 2012 memorandum from IRAdvocates attorney, Lorraine Leete,
to Collingsworth, with subject 6/15/2012 Meeting with Ivan Notes).
2.

Plaintiffs Counsels Misrepresentation Regarding the Leete Memo and


Deficient February 2016 Production

On January 19, 2016, Chiquita brought these issues to Plaintiffs Counsels


attention. (See Ex.14.) On February 8, 2016, Plaintiffs Counsel agreed to produce certain
additional documents, or portions thereof, related to witnesses Crdoba, Samper, Mangones, and
Mancuso, provided that Chiquita agreed to keep them confidential. (See Ex. 16, at 2, 5.)
They refused, however, to produce documents regarding payments to Otero, even though it had
been clearly established by that point that Otero was an agent and associate of paramilitary
witnesses in this case. (See id. at 4, 7, 12.)
Even more egregiously, Plaintiffs Counsel represented to Chiquita that the
material redacted in the Leete Memo was unrelated to facts about Mr. Maya Snchez,
Hasbuns attorney. (See id. at 6.) However, Chiquita had by then obtained a lesser redacted
version of the document that Plaintiffs Counsel had publicly lodged in the Dole Action, and that
version showed that the redacted material did contain facts about payments made to Maya
Snchez apparently through Otero as well as other responsive information concerning
7

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Otero and paramilitary witnesses that Plaintiffs Counsel were not entitled to redact.
Specifically, Plaintiffs Counsel had improperly redacted the following:
1. Jarley [Maya Snchez]: He is ok with reaching an agreement through Iv[n
Otero], but he wants it in writing, and he does not want it contingent on success of
case. He is firm on his demand for $250K. Jarley said [he] wont even talk to
Hasb[]n again until he has a serious deal with Iv[n]. I told Iv[n] again about
the circular problem we have with this, since our finance/ethics people wanted to
meet with Hasb[]n before they reached a decision, but Iv[n] said that Jarley was
firm on that as well. . . . Jarley wants to meet with Iv[n] in next two weeks,
hopefully in the week of 6/25 with a follow up plan.

4. Edwar Cobos Tllez, alias Diego Vecino, who was commander of the Montes
de Maria Block of the AUC (and who put Iv[n] in contact with Mancusos
lawyer), is willing to serve as expert witness on AUC.

7. Chiquita clients: 57 & Lucho need 50K USD for security Lucho will not
sign declaration until this happens.
(Ex. 6.)
All three paragraphs are responsive to Chiquitas requests and fall squarely within
the scope of discovery required by the Courts Orders because they concern facts about payments
to witnesses in this case, or their agents and associates (including payments that were offered,
considered, or requested). When Chiquita confronted Plaintiffs Counsel about their
misrepresentation regarding the Leete Memo (see Ex. 17, at 6), Plaintiffs Counsel agreed to
produce a less-redacted version of the document to Chiquita in exchange for Chiquitas
agreement to keep that version confidential. (See Ex. 18, at 6.) The document was produced
on February 29, 2016, along with 28 other responsive documents that Plaintiffs Counsel had
previously withheld. Although paragraphs 1 and 7 of the Leete Memo were unredacted,
Plaintiffs Counsel refused to unredact paragraph 4. (See Ex. 7.) Plaintiffs Counsel also

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continued to make other unexplained redactions and maintained their refusal to produce
documents regarding Otero.
C.

Plaintiffs Counsels Broader Pattern of Misconduct Regarding Discovery


Into Witness Payments
Plaintiffs Counsels non-compliance with the Courts discovery rulings is part of

a larger pattern of obstructionist tactics designed to conceal the facts regarding their improper
efforts to pay witnesses for their testimony in cases against Drummond, Dole, and Chiquita. For
example, Plaintiffs Counsel have made categorically false statements to other courts about the
number of Colombian witnesses that have received payments and admitted as much. (Ex. 19,
at 12-13 (Drummond court observing that Mr. Collingsworths representations to the Dole court
regarding the number of witnesses who had received security payments and the purpose of those
payments were categorically false); see also Ex. 20, at 10-12 (Collingsworth conceding that
his multiple statements regarding security payments to witnesses families were inaccurate
and . . . wrong).)
On other occasions, Plaintiffs Counsel have also attempted to shield the identity
of a fact witness by labeling him as a consulting expert 4 and produced new documents
showing monthly payments to two additional paramilitaries after claiming for years that they had
produced all responsive information related to witness payments. (See generally Ex. 1, at 1, 817; Ex. 21, at 275:18-21.) Mr. Collingsworths recent attempts to explain his misconduct were
found by the Drummond court to be uncreditable and insufficient even bordering on
comedic. (Ex. 1, at 2.) Likewise, the Dole court has repeatedly admonished Mr.
4

See Ex. 28 (ordering Collingsworth to provide identity of consulting expert to Dole); Ex. 29
(denying Collingsworths petition for writ of mandate on this issue and stating that [t]here is
substantial evidence the alleged consulting expert is in fact a person with personal knowledge
of the facts who has been paid significant sums to find witnesses.).

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Collingsworth for his discovery abuses. (See Ex. 21, at 88:20-22 (I have a lot of
disappointment about your not complying with my orders[.]); Ex. 22, at 27:14-18 (You can be
forthcoming with the information that Ive already ordered that you produce. . . . You know, its
a problem.).)
ARGUMENT
I.

The Court Should Order Plaintiffs Counsel to Produce Responsive Documents


Related to Ivn Otero.
Documents relating to Payments to Ivan Otero including payments made,

considered, offered, or requested are responsive to RFP Nos. 1 and 3 because Otero is both
the Agent and Associate of multiple Witnesses in this matter. 5
Otero is a Colombian attorney with whom Plaintiffs Counsel have been working
since at least 2008. (See Ex. 23, at 5.) Plaintiffs Counsel previously stated that they engaged
Otero as co-counsel in this action as early as 2012 (see Ex. 24, at 51), though they have
recently claimed that they are only now in the process of formalizing a co-counsel relationship
with Otero (Ex. 5, at 5). Despite their long-standing relationship with Otero and earlier
representations to the contrary (see, e.g., Ex. 12, at 10), Plaintiffs Counsel revealed for the first
time in November 2015 that Otero had served as an attorney for a witness in this case Edgar
5

The definition set out in Chiquitas requests for Payment is the offer, promise, suggestion,
delivery, provision, giving, transfer, Communication, or transmission of any kind of anything of
value whatsoever, whether monetary or non-monetary, directly or indirectly (through any
intermediary or set of intermediaries), including money, property, gifts, an attorney, attorneys
fees, or Assistance of any kind, for any purpose whatsoever, including security. The term also
includes any payments made at the direction, suggestion, or request of any Witness, regardless of
the recipient.
The definition for Agent is agent, employee, officer, director, attorney, counsel, independent
contractor, consultant, investigator, representative, or any other Person acting at the direction or
on behalf of another.
The definition for Associate is friends, acquaintances, neighbors, contacts, intermediaries,
and attorneys (whether or not acting on behalf of the witness). Ex. 26, at 6, 8, 10-11.

10

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Crdoba Trujillo (see Ex. 13, at 10). This was the first time that Otero was identified to
Chiquita as an Agent and Associate of a witness in this case. Around the same time, it was made
public via the lodging of the Leete Memo in the Dole case, that Otero was also an Associate of
another witness in this case, Edwar Cobos Tllez. (See Ex. 6, at 4 (indicating that Cobos had
put Otero in touch with the attorney for another witness in this case, Mancuso).) Because it is
now well-established that Otero is an Agent and/or Associate of at least two witnesses in this
case, Chiquita is entitled to documents regarding Payments to Otero, pursuant to RFP Nos. 1 and
3 and the Courts prior Orders.
Even the limited information that Chiquita has obtained thus far regarding Oteros
role in this case makes clear that documents regarding payments to him are highly relevant to
this case particularly to the deposition of Mangones, which has been authorized by the Court
and could be scheduled by the Colombian authorities at any time. Plaintiffs have already
conceded that Mangones (along with Samper, another paramilitary witness in this case)
requested payments from Otero in 2013 or 2014. (See Ex. 5, at 12-13.) 6 There is strong
evidence that Otero did, in fact, satisfy Mangones request. According to Plaintiffs Counsel,
Mangones had asked for money for his daughters university studies (id.), and an email publicly
lodged in the Dole Action indicates that Plaintiffs Counsel paid $58,800 to Ivan Otero for
Chiquita, Dole and Drummond Kids. Ex. 4 (emphasis added). Documents concerning
6

Because of these requests, Otero is also arguably an Associate of these two witnesses as well.
When confronted with these examples at a recent meet and confer session, Plaintiffs Counsel
took the position that these requests for payments were akin to someone approaching a stranger
on the street for money. However, Plaintiffs Counsel also stated that Mangones had approached
Otero because Mangones had somehow ascertained the connection between Otero and
Collingsworth, and had thus made the request to Otero for him to pass on to Collingsworth. (See
Hellerman Decl., at 2.) This admission, of course, confirms that it was common knowledge
among paramilitary witnesses in this case that Plaintiffs Counsel were engaged in paying
witnesses for testimony.

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payments to Otero could reveal more information about these transactions, including whether
Mangones has been influenced to testify against Chiquita based on payments made for the
benefit of his daughter. Chiquita is certainly entitled to receive such material before Mangones
deposition in this case.
Beyond the implications for the Mangones deposition, documents regarding
payments to Otero may reveal information about numerous other potential transactions with
paramilitary witnesses in this case. As shown by Exhibit 6, Otero was directly involved in the
negotiations between Plaintiffs Counsel and Raul Hasbun, a key paramilitary witness who
changed his testimony about Chiquita after engaging in discussions with Plaintiffs Counsel
about being paid to serve as a witness in this case. The documents could provide important
information about those negotiations, including whether and how Plaintiffs Counsel satisfied
Hasbuns request for $250,000. (See Ex. 7, at 1; Ex. 9 (stating $200,000 was fine).) The
documents may also shed light on the expert witness payment that was considered for, or
requested by, Cobos, Oteros associate who is a fact witness in this case (see supra pp. 2, 10-11),
including whether and how Plaintiffs Counsel satisfied that request. And the documents may
reveal information about Plaintiffs Counsels interactions with Salvatore Mancuso, a witness to
whom Otero was introduced and with whom Plaintiffs were admittedly seeking to meet, and
Adolfo Guevara Cantillo, a witness in this case whom Otero recently tried to pay to testify
against Dole. (See Ex. 2; Ex. 25.)
Beyond the specific issues that Chiquita has been able to identify based on the
limited information currently available to it, the fact that Otero has had a central role in
Plaintiffs Counsels various witness payments schemes suggests that there could be an untold
amount of potentially relevant information in the documents that Plaintiffs are withholding. It is

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well established that Otero has served as a conduit for payments to families of Colombian
paramilitaries. (See generally Ex. 1, at 25, 28-30 ([t]he evidence of relatedness [of Otero to the
crimes and frauds related to witness payments] is nothing short of staggering). Indeed, it was
just three months ago that Otero was trying to pay Guevara Cantillo to testify falsely against
Dole in Plaintiffs Counsels suit against Dole. (See Ex. 2 (In the meeting on January 15, 2016,
Mr. Otero told me . . . that he would pay Mr. Guevara if, in his testimony in the Barranquilla
courthouse, he agreed to implicate Dole as collaborating with the AUC, in order to support his
lawsuit against Dole.); See also Ex. 25, at 72-73 ( He offered me money so that I could involve
or incriminate Dole in something that I cannot attest to or that I cannot prove and nobody -- and,
in fact, nobody can prove.); id. at 57-59, 69-73; Ex. 5, at 7-8 (identifying Guevara as witness in
this case). For the same reasons, Plaintiffs Counsels payments to Otero are pivotal whether or
not they were ultimately funneled to the specific witnesses in this case. 7 As Oteros actions in
January 2016 demonstrate, he is willing to use whatever influence he has with paramilitary
witnesses to benefit Plaintiffs Counsel, presumably due to his handsome compensation by
Plaintiffs Counsel over the better part of a decade. Chiquita is entitled to information about the
details of that compensation.
Because documents regarding Payments to Otero are obviously a sensitive
pressure point for Plaintiffs Counsel, they have been reduced to taking indefensible and, as in

The parties agree that, if Otero is an Associate or Agent of a Witness in this case, Chiquita
is entitled to documents evidencing Payments made, requested, offered, or considered, regardless
of whether the ultimate recipient of the Payment was a Witness in this litigation. See Ex. 30, at
7 (Requests regarding any Agent, Relative, or Associate of a Witness applies to that Agent,
Relative, or Associate regardless of whether the Payment was for the benefit of the Witness with
respect to whom he/she has an agency, relative, or associate relationship.); Ex. 31, at 7
(Plaintiffs[] understanding is consistent with Chiquitas as reflected in your October 28
letter.).

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the Drummond case, comedic positions with regard to Oteros relationships to witnesses in this
case. First, with regard to Oteros representation of Crdoba, Plaintiffs Counsel represented to
Chiquita that Oteros attorney-client relationship had been dormant for the past twenty years.
(See Ex. 16, at 7.) But, when Chiquita pointed out that (a) Oteros representation of Crdoba in
relation to the Justice and Peace proceedings in Colombia could not have extended back to 1996
because the Justice and Peace law was not even enacted until 2005, and (b) Plaintiffs Counsel
had not provided an end date for Oteros attorney-client relationship with Crdoba, Plaintiffs
Counsel were forced to concede that Oteros representation of Crdoba in fact began after the
Justice and Peace law was enacted and indicated that they would need to obtain a declaration
from Otero to provide an end date for the representation. 8 (See Hellerman Decl., at 4-5.)
Second, when confronted with the evidence of Oteros associate relationship with Cobos,
Plaintiffs Counsel first stated that Cobos was not a witness in this case. (See id. at 3.) This, of
course, is belied by the fact that Plaintiffs Counsel has consistently listed Cobos as a witness in
this case in every iteration of its interrogatory responses following the Courts May 5 Order.
(See Exs. 34-36 & 5, at Resp. to Interrogatory No. 1.) Then, Plaintiffs Counsel asserted that the
Edwar Cobos Tellez, alias Diego Vecino listed in their interrogatory responses was different
from the Edwar Cobos Tellez, alias Diego Vecino referenced in Exhibit 6. (See Hellerman
Decl., at 3.) This Cobos is not Cobos argument is facially suspect, to say the least.

Plaintiffs Counsel have yet to provide any such declaration. Of course, a declaration from
Otero regarding the end date of his formal representation of Crdoba would, at best, merely
convert Otero to an Associate, rather than an Agent, of Crdoba thus doing nothing to excuse
Plaintiffs Counsels withholding of related documents. Moreover, for obvious reasons, Oteros
own statements on the matter would lack any credibility. Otero has every reason to deny his
relationship with Crdoba. Revelation of his actions, thus far, have, after all, led to Plaintiffs
Counsel being sanctioned by the Drummond court (see Ex. 1), to Drummond pursuing RICO
claims against Otero (see Ex. 32), and to the dismissal of the action against Dole with prejudice.

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Plaintiffs Counsels attempts to wiggle out of the truth that Otero is an agent and/or associate of
witnesses in this case cannot be credited. The Court should order Plaintiffs Counsel to comply
with its prior Rule 37(b) Orders and produce these documents to Chiquita.
II.

The Court Should Order Plaintiffs Counsel to Correct Their Inappropriate


Redactions.
Plaintiffs Counsel continue to redact documents in contravention of this Courts

Orders. The May 5 Order overruled all objections to RFP Nos. 1 and 3 (see D.E. 797, at 2-4),
which request documents regarding Payments to Witnesses in this case, and their Agents,
Relatives, and Associates (see Ex. 26, at 11-12). 9 The May 5 Order then clarified that Plaintiffs
Counsel were permitted to redact from responsive documents only (1) internal communications
between counsel which relate to the propriety of fact witness payments and (2) material
concerning other topics unrelated to the fact of any witness payments, which are purportedly
protected by work product or common interest privilege. (D.E. 872, at 3 (internal quotation
marks omitted).)
Chiquita has already described the most egregious improper redaction that it has
identified to date the 2012 Leete memorandum that initially produced to Chiquita wholly
redacted. These redactions concealed the fact that Plaintiffs Counsel considered paying
paramilitary witness, Cobos; facts concerning the payments to Hasbn and his agent, Maya
Snchez; and the fact that two other witnesses, Crdoba (57) and Samper (Lucho), requested
$50,000 in security to testify against Chiquita. (Compare Ex. 8 (wholly redacted) with Ex. 6,
at 1, 4, 7 (public Dole version); see Ex. 5, at 7 (Plaintiffs Fifth Amended Responses to
Chiquitas Interrogatories, listing Cobos, Hasbn, Crdoba, and Samper as witnesses in this
9

The Courts May 5 Order effectively replaced the word Paramilitary with Witness in RFP
No. 3 by limiting the request to witnesses in this case. See D.E. 797, at 4.

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Case 0:08-md-01916-KAM Document 1080 Entered on FLSD Docket 04/27/2016 Page 17 of 21

case).) Although Plaintiffs Counsel has agreed to unredact certain portions of the memo, it has
refused to produce a version with paragraph 4 unredacted.
In addition to redactions on that document, Plaintiffs Counsel have asserted that
they are entitled to make redactions based solely on non-responsiveness even when there is no
applicable privilege or work product protection. (See Ex. 27.) Although Chiquita has not been
able to identify which produced documents this affects in most cases, Plaintiffs Counsel have
not labeled their redactions Chiquita is concerned with this position given Plaintiffs
Counsels clear track record of evasion, concealment, and misrepresentation of facts regarding its
witness-payment activities.
Moreover, Plaintiffs Counsels position is flatly wrong. Nothing in the Courts
Orders allows Plaintiffs Counsel to redact responsive documents, except as to the two, limited
privilege exceptions outlined above. And, the Southern District of Florida has specifically held
that parties cannot unilaterally redact portions of otherwise discoverable, non-privileged
documents based on [their] own belief that portions of the documents are irrelevant to the claims
in this case. Bonnell v. Carnival Corp., 2014 WL 10979823, at *4 (S.D. Fla. Jan. 31, 2014).
This is because responsiveness redactions are inconsistent with Federal Rule of Civil Procedure
34s focus on the production of documents [] not individual pictures, graphics, paragraphs,
sentences, or words within those documents. Id. at *3 (internal quotation marks omitted); see
also, e.g., McNabb v. City of Overland Park, 2014 WL 1152958, at *3 (D. Kan. Mar. 21, 2014).
Disallowing such redactions is also good policy, as the unilateral editing of documents
frequently gives rise to suspicion that relevant material harmful to the producing party has been
obscured. Id. Indeed, this has already been demonstrated to be true in this matter, by Plaintiffs
Counsels redaction activity related to the 2012 Leete Memo. [T]he better, less-risky

16

Case 0:08-md-01916-KAM Document 1080 Entered on FLSD Docket 04/27/2016 Page 18 of 21

approach, the Southern District of Florida has reasoned, is to [disallow Plaintiffs Counsel] the
carte blanche right to willy-nilly redact information from otherwise responsive documents.
Bonnell, 2014 WL 10979823, at *4; accord Sexual Minorities of Uganda v. Lively, 2015 WL
4750931, at *4 (D. Mass. Aug. 10, 2015).
The Court should therefore order Plaintiffs Counsel to produce to Chiquita
within 72 hours a copy of Exhibit 7 in which paragraph 4 is not redacted and correctly-redacted
versions of any other documents that were improperly redacted on the basis of nonresponsiveness where the material did not otherwise fall within the limited privilege and work
product objections that the Court sustained. 10 Chiquita also respectfully asks that the Court, in
conducting its in camera review of the redactions, unredact any information that does not fall
within those limited privilege and work product even if such information appears to be nonresponsive. (See supra, Section II.)
III.

The Court Should Order Plaintiffs Counsel to Preserve Their Documents and Files.
As the Court is aware, there are gaps in Mr. Collingsworths email files. (See

D.E. 872, at 4.) Given his recent separation from C&S (see D.E. 965), as well as the recent
departure of three of his attorney colleagues from IRAdvocates (see Exs. 37-39), it is imperative
that no additional information is compromised. The Court should, therefore, order Plaintiffs
Counsel to preserve all information currently in their possession, custody, or control related to
this litigation or payments to witnesses in any matter, for the duration of this litigation, through
any appeal.
10

For the Courts convenience, Chiquita attaches, as Exhibit 40 a list of all paramilitary
witnesses and agents/associates of which Chiquita is aware so that the Court may make
individual responsiveness determinations, if it so chooses, of the redacted information contained
in the documents that are presumably in the Courts possession (see D.E. 888; D.E. 316 in 08-cv80465).

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Case 0:08-md-01916-KAM Document 1080 Entered on FLSD Docket 04/27/2016 Page 19 of 21

IV.

The Court Should Order Plaintiffs Counsel to Reimburse Chiquita for the Fees and
Costs Related to This Motion.
Finally, the Court should order Plaintiffs Counsel to reimburse Chiquitas fees

and costs in bringing this motion, including reviewing and responding to further briefing and for
participation in any hearing on the motion, pursuant to Rule 37(b)(2)(C). Payment for these
expenses is mandatory under that Rule, unless Plaintiffs Counsel show substantial justification
for their failure to comply with the Orders which they cannot. See Fed. R. Civ. P. 37(b)(2)(C)
([T]he court must order the disobedient party, the attorney advising that party, or both to pay the
reasonable expenses, including attorneys fees, caused by the failure [to obey an order to provide
or permit discovery], unless the failure was substantially justified or other circumstances make
an award of expenses unjust. (emphasis added)). To the contrary, in light of the record outlined
above, there is no possible justification for Plaintiffs Counsels repeated violation of the Courts
Orders and failure to produce nearly one year after it was first ordered to do so a full and
complete set of responsive documents and information.
CONCLUSION
For the reasons discussed herein, the Court should order Plaintiffs Counsel to (i)
produce, within 72 hours, documents related to Payments to Otero that they are withholding; (ii)
correct, within 72 hours, improper redactions on documents they have already produced; (iii)
retain all documents and files related to Payments to witnesses and their agents, relatives, and
associates; and (iv) reimburse Chiquita for its fees and costs in preparing for and litigating this
motion.

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Case 0:08-md-01916-KAM Document 1080 Entered on FLSD Docket 04/27/2016 Page 20 of 21

Certificate of Good Faith Conference


Counsel for Chiquita hereby certifies that it has conferred with Plaintiffs Counsel
regarding the subject of this motion, and that we have been unable to resolve these issues.
Dated: April 15, 2016
John E. Hall
Maureen F. Browne
Mark W. Mosier
Shankar Duraiswamy
Jos E. Arvelo
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street NW
Washington, D.C. 20001
Telephone: (202) 662-6000
Facsimile: (202) 662-6291

Jonathan M. Sperling
Eric Hellerman
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Telephone: (212) 841-1000
Facsimile: (212) 841-1010

Respectfully submitted,
/s/ Robert W. Wilkins_____________
Sidney A. Stubbs (Fla. Bar No. 095596)
sstubbs@jonesfoster.com
Robert W. Wilkins (Fla. Bar No. 578721)
rwilkins@jonesfoster.com
James C. Gavigan, Jr. (Fla. Bar No. 0085909)
jgavigan@jonesfoster.com
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 1100
West Palm Beach, Florida 33401
Telephone: (561) 659-3000
Facsimile: (561) 650-5300

Counsel for Chiquita Brands International, Inc.


and Chiquita Fresh North America, LLC

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Case 0:08-md-01916-KAM Document 1080 Entered on FLSD Docket 04/27/2016 Page 21 of 21

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document with the
Clerk of the Court using CM/ECF on this 15th day of April, 2016. I also certify that the
foregoing document is being served this day on all counsel of record registered to receive
electronic Notices of Electronic Filing generated by CM/ECF, and in accordance with the
Courts First Case Management Order (CMO) and the June 10, 2008 Joint Counsel List filed
in accordance with the CMO.

By:

20

/s/ Robert W. Wilkins


Fla. Bar No. 578721

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