Case 0:08-md-01916-KAM Document 945 Entered on FLSD Docket 11/28/2015 Page 1 of 11

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
11-80405-CIV-MARRA
_____________________________________/

Does 1-254 Reply to Defendants' Opposition to

Motion to Participate in Hague Convention Request
I.

The Proposed Hague Convention Request is Focused on Common Issues

Related to the FARC.
The Defendant disputes our characterization of the proposed Hague Convention

Request, R. 927-1, (hereinafter "Hague Request") as being primarily about common

issues related to the FARC. The Defendant claims that "the Letter of Request largely
seeks information that is irrelevant to Plaintiffs' claims."

See Defendant Chiquita's

Response to Plaintiff Does 1-254 Motion to Participate in the Hague Convention Request
to the Government of Colombia, R. 944 at 3.

The Plaintiffs' characterization is more

accurate. This can be shown by looking at the amount of text devoted to each item
requested, the order in which the items are requested, and the scope of the proposed
discovery for each item.

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The items requested fall into two distinct categories: as either pertaining to
common issues, or to issues in particular cases. Does 1-254 have an equal, if not greater
interest, in the evidence relating to the common issues of the FARC's financing and
extortive activities, compared to the ATA plaintiffs, on account of the numerosity of their
claims.
The information sought in the Hague Request is described in a little over three
pages, in 21 sections numbered i-xxi. R. 927-1. The first nine items, numbered i-ix,
which take up the first page and a half, are about the financing and extortive activities of
the FARC in general. Id. at 6-7. These are issues common to the cases of the Does 1-254
Plaintiffs.1 The next eight items, x-xvii, are described in about one page, and are for
documents for particular ATA cases.2 Id. at 7-8.

Items xviii and xix pertain to the

common issues of the shipment of weapons into Chiquita's port at Zungo, and to
Chiquita's efforts to obtain the assistance of the Colombian government. Request xx is
for records for a particular ATA case.

The remaining item xxi, for intercepted

communications of FARC commanders, has five subparts, four of which pertain to

common issues, and one of which pertains to particular ATA cases. Therefore, the
majority of the text of the Hague Request goes to common issues, and less than half goes
to issues in particular cases. If measured in terms of the number of categories instead of
the amount of descriptive text, the same holds true.

Items viii and ix, about the Bajo de Oso massacre, should be more relevant to Plaintiffs cases than to those
of the ATA cases. This massacre occured in 1995 at a location between Apartado and Turbo in Uraba,
which is in the middle of where Does 1-244 cases occurred. The incidents in the ATA cases occurred
hundreds of miles away. R. 944 at 4. ("These areas [where the ATA cases arise] are hundreds of miles
away from Uraba where Plaintiffs allege they sustained their injuries.")
2
We agree with the Defendant that Does 1-254 have no real interest in items x-xvii, for documents about
those particular ATA cases. R. 927-1 at 7-8. Does 1-254 interests are in the common issue discovery.

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The common issues are listed first in the Request. Listing the common issues first
suggests they are more important than the particular case issues. If the particular case
issues had been listed first, a Colombian court might interpret this to mean that the parties
first wanted information about their own cases, and then whatever evidence they could
get about the general background on the FARC.3 Listing the common issues first also
suggests to the Colombian court that a U.S. judge has determined that this evidence is
necessary for the Chiquita case.4 While this may sound reasonable in a case involving
hundreds or thousands of claims - and the Chiquita case is very well known in Colombia
- in reality the request is being made by several U.S. citizen-plaintiffs, and the Colombian
plaintiffs are being left out.5
Third, the records about the FARC in general are more voluminous than records
for half a dozen particular cases. The request is for all information about the financing
and terrorist activities of the FARC, to be served on the Colombian Supreme Court, the
Attorney General, the armed forces, the national police, and other agencies. There have
been many thousands of convictions of FARC members, and the organization still has
thousands of members, with tens or hundreds of thousands of suspected collaborators.
The Colombian military was fighting a war against the FARC for the entire period

We expect that a Colombian court might stop at this point, rather than sending subpeonas to a dozen
different agencies. It seems reasonable to assume that any court would treat a person's request for the files
about their own case differently from a broad request about the FARC organization in general.
4
There are obviously going to be legal barriers to producing information about the Colombian
government's efforts to defeat the FARC insurgency. This group has the same legal status as al Qaeda or
ISIS, and is far more threatening to the Colombian people than any terrorist group is to the United States.
In the late 1990s and early 2000s, the Colombian government appeared ready to cede part of its territory to
the FARC, and allowed limited self-governance, including courts and schools run by the FARC in a
demilitarized zone.
A Colombian judge, by himself, would have no power to sanction any US lawyer for the misuse of this
information. He would be put in the difficult position of weighing the Colombian government's interest in
national security, versus Colombia's important relationship with the United States and our courts.
5
At a minimum, the Colombian court is entitled to know whether the rights of its own citizens rights are
involved in the Hague Request. That is not apparent from the text of it.

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encompassed by the Hague Request, and still is. The United States military, the DEA,
and who knows what other U.S. agencies have worked with the Colombian government
for the entire period encompassed by the Hague Request, and still are. Not only will
these materials be voluminous, they will also involve privileged and classified
information.6
II.

Does 1-254 have a right to participate in this common discovery.

a.

It would be unfair to allow the Defendant to control the scope of

discovery.

The Defendant doesn't really contest that there may only be one bite at the apple,
in terms of obtaining the common issue evidence from the Colombian government.7 It
would be unfair, and we believe unconstitutional, to put our opponent Chiquita Brands in
the position of communicating with the Colombian court on our behalf.8 The Defendant's
offer to provide us copies of whatever the Colombian government discloses is intended to
exclude Does 1-254 from these proceedings. The Defendant correctly notes that our
standing before the Colombian courts is important. The Colombian court is also entitled

Information in the hands of the Colombians which was obtained from U.S. agencies should, at a
minimum, be excluded from the Hague Request. This information should be sought directly from the U.S.
agencies. See United States. ex rel. Touhy v. Regan, 340 U.S. 462 (1951). Also of note is 16 of the
Hague Request, which pertains to the privilege or duty to refuse to give evidence under the law of the State
of origin. R. 927-1 at 12. This refers to Article 11(b) of the Hague Convention, which allows a person in a
foreign state to refuse to give evidence insofar as he has a privilege or duty to refuse to give the evidence
under the laws of either the requesting or requested state. See Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters 23 U.S.T. 2555 (8 March 1970). The defendant Colombian
agencies may therefore assert privileges according to the laws of either Colombia or the United States. By
marking 16 as "N/A", the Court is requesting that privileges and duties arising in U.S. law should not be
considered by the Colombian court. See id. at 2. Also, "[t]his request is made with the understanding that
it will in no way require any person to commit any offense or to undergo a broader form of inquiry than he
or she would if the litigation were conducted in the Republic of Colombia." This all means that the scope
of Colombia's response should be governed entirely by Colombian law.
7
We are agreeing to the general scope of this request so as to minimize changes to what has been
negotiated between the Defendant and the ATA plaintiffs. We would not waive our right to request at
some future time, another Hague Convention request for information about the Does 1-254 particular cases,
as the ATA plaintiffs have.
8
See Hague Request, R. 927-1 at 2. "3. Person to whom the executed request is to be returned: John E.
Hall."

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to know that the rights of its own citizens are involved in the Hague Request. The fact
that the cases of 244 Colombian citizens also require this evidence may bear on the
Colombian court's determination of the relative burdensomeness of the information
requested. In other words, a broad Hague Request may be seen in a different light if
made by hundreds of people, and the Colombian government may believe it has different
duties with regard to its own citizens.
The Defendant cites the deposition of Jess Ignacio Roldn as supporting its view
that Does 1-254 should rely on the Defendant to provide them with discovery from the
Colombian government.9 The Defendant states that our local counsel, Dr. Alex Morales,
disrupted the deposition with his appearance, and with the few times that he spoke. R.
944 at 7. However, our efforts to cooperate with the other plaintiffs' counsel were
rebuffed. Mr. Simons, speaking for the other plaintiffs counsel, refused to coordinate
with us about this deposition or "on any MDL matter" unless we agree to confidentiality a disagreement that has existed for a long time now. See Exhibit 1, attached hereto.
("The Court has clearly accepted that communications between you and with other
plaintiffs' counsel fall under work product protections. Either accept this, or we will not
coordinate with you on these depositions (or any other joint MDL matter).")
I asked Dr. Morales to attend the hearing and represent our interests as he thought
necessary, and in particular, to record what the witness said in Spanish. It is the witness'
own understanding of what he says that controls, and the most accurate evidence is the

We opposed taking the depositions of Mr. Rendon, Roldan and Mangones until the witness payment issue
was put to rest. This is an issue on appeal in two cases in the 11th Circuit. See Cases No. 14-15722 and
15-11956. Our primary concern is about Mr. Mangones and his testimony in the Dole case.

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original Spanish.10 Dr. Morales told me the other plaintiffs' counsel did not want to
coordinate questioning the witness, and tried to exclude him from the hearing.11 Our
arrangment with Mr. Simons is the same as it was with Mr. Scarola, which is that we
"shall have no more input into the litigation." This is not actually about control over the
case; it is about whether my communications with other plaintiffs' counsel must be kept
confidential.
We can't agree to confidential communications when we have legitimate concerns
about Mr. Collingsworth's witnesses, in particular Jose Gregorio Mangones Lugo, who is
next on the list of deponents. My unpopular position on the witness payment issue has
been vindicated since I was excluded from communicating with the other Plaintiffs
counsel years ago.12 So far, Drummond has proven that Mr. Collingsworth paid more

10

The parties did apparently dispute several translations made by the court interpreter during the Roldan
deposition. R. 944-4 at 12, 13. (translations of the words for "meeting" and "immunization") I understand
that, in addition to the recording made by Dr. Morales, the Colombian court also recorded the proceeding.
This may not be of any importance to us, since Mr. Roldan had little relevant knowledge about this case,
but it could be of great importance to Mr Roldan. Roldan has nearly completed the sentence in his plea
agreement, which requires him to fully cooperate with the authorities. Mr. Roldan, unprepared for the
deposition, asked the Colombian judge if he could be provided with an attorney, but was not. "THE
WITNESS: Here, in this hearing, there are defenders present. And I would like to know if this hearing can
be carried out without a defense attorney, without my own defense attorney, if it is acceptable to carry out
this hearing, because I was notified of this hearing, but my defense attorney is not here. So I would like to
know if that is permissible." THE COURT: Are you asking me? THE WITNESS: Your Honor, I asked
you the question, but you said that I could not ask you any questions. So I'm asking the question because I
would like to know if it is necessary for my defense attorney to be here, or if I will not have any problems
as a result of the fact that my representative is not here, if that is okay." R. 944-4 at 20. The court advised
Mr. Roldan that he did not need to testify against himself, but allowed the parties to question him without
an attorney. Mr. Roldan then attempted at several times to invoke his right against self-incrimination.
11
Dr. Morales spent part of his career working as an attorney for INPEC, the national penitentiary agency
in Colombia equivalent to our Bureau of Prisons. I'm also known to INPEC because of my meetings with
Raul Hasbun. The Roldan deposition was scheduled for the worst possible day, on which Mr. Roldan was
expecting visitors. INPEC has complicated procedures for approving prison visits to AUC commanders,
requiring approval from the INPEC headquarters in Bogota. Dr. Morales could easily have arranged this
deposition so that a full day was available for testimony. The Colombian judge allowed for additional
days, but since it was apparent that the witness had no personal knowledge relevant to this case, no party
asked to schedule it.
12
Earthrights International wrote several amicus curiae briefs in support of the fraudulent case against
Drummond, including one as recently as last year. This was well after I accused Mr. Collingsworth of
paying witnesses in Drummond in Cohen Millstein's own office. See
http://d2zyt4oqqla0dw.cloudfront.net/sites/default/files/documents/amicus-brief-doe-v-drummond.pdf.

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than $500,000 to at least six witnesses in that litigation, that Mr. Collingsworth lied under
oath about the number of witnesses paid on several occasions, and that Mr. Collingsworth
destroyed or lost all of the copies of his emails for important periods of time. As a result,
the court in Drummond v. Collingsworth is considering Drummond's motion for a default
judgment as a sanction. See Drummond Company Inc.'s Renewed Motion for Sanctions
and Request for Evidentary Hearing, R. 174 in Case 22-cv-3695 (NDAL), February 2,
2015. The Sanctions Motion resulted from my testimony that Parker Waichmann LLP
had been paying Mr. Collingsworth's expenses, including some of his witnesses. This led
Drummond to pursue discovery from Parker Waichmann LLP, which showed that several
additional witnesses in the Drummond case had also been paid. However, Drummond
has only been able to trace a small percentage of the total number of payments sent to
individuals in Colombia. The majority of the Western Union and wire transfers are still
unsolved. I have testified that Mike Hugo of Parker Waichman told me he believed that
Mr. Collingsworth paid the witnesses in all of his cases.
In our case, Mr. Collingsworth admitted he tried to negotiate a bribe with the key
witness - Raul Hasbun - and claims it was Hasbun's idea that he could work for
Collingsworth as a paid expert witness.
48. For example, according to testimony provided by Collingsworth, he made a
cash payment to a witness against Dole to provide facts concerning Doles
presence and operations in Colombias banana zone. The witness insisted the
payment be made in cash so that there would be no record of the transaction.
After this payment was discovered by Drummond, Collingsworth claimed it was a
fee for an expert. Although the details of this payment and who it was made
to are still being investigated, Collingsworth has recently revealed he has
discussed an arrangement with Raul Hasbun - a paramilitary leader and one of the
primary witnesses against both Dole and Chiquita - whereby Hasbun could be
retained and paid as an expert.

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See Complaint in Drummond v. Collingsworth, 15-cv-00506-JHH, R. 1 at 30-31. Worse

yet, the paid witness in the Dole case, to whom Drummond refers, is probably Jose
Gregorio Mangones Lugo, who is next in line to give deposition testimony in our case.
It's not reasonable to ask me to keep these kinds of legal strategies confidential,13 since it
prevents me from doing anything about them. There is no way to be involved in this case
without knowing about them.
The other plaintiffs counsel seek to cut off my ability to communicate with the
Court on these important issues. As I argued in the 11th Circuit, and to the JPML Panel,
the court should not force me to be a part of what Drummond properly calls a RICO
conspiracy, or to allow these lawyers to represent my clients.14 This may sound like
hyperbole, but is not, considering the next witness to be deposed is Jose Gregorio
Mangones Lugo.
This has little to do with the ATA plaintiffs, or their Joint Motion with Chiquita to
send a Hague Convention Request for information about the financing of the FARC.15
Chiquita doesn't want us involved in this discovery for reasons we recently argued in our

13

Mr. Scarola has testified that Wolf "refused to sign the confidentiality agreement, and ... declined to
accept other ground rules the [Chiquita plaintiffs counsel] group had agreed to in order to cooperate." See
Declaration of Jack Scarola in Drummond v. Collingsworth, R. 17-31 2. This is true, but it was in the
context of a RICO conspiracy involving payments of more than $500,000 to at least six witnesses in the
Drummond case alone. Whether my communications with them are confidential is an issue in two cases
currently before the 11th Circuit. See Case No. 14-15722 and 15-11956.
14
"The Enterprise has pursued numerous multinational corporations in lawsuits premised on allegations of
collaboration with Colombian paramilitaries. According to the IRAdvocates website, the Enterprise is
currently pressing such claims against Dole Food Company, Inc., Occidental Petroleum Corporation,
Chiquita Brands International, and BP, plc. Evidence discovered to date suggests that the Enterprises
fraudulent practices and witness payment schemes permeate all of their cases in Colombia. Indeed,
Collingsworth and Conrad & Scherer have claimed that paying Colombian witnesses and their families to
procure testimony is an integral part of their business plan and strategy." See Complaint, 15-cv-506 at 30.
15
Chiquita complains that we failed to meet and confer before filing this motion. R. 944 at 2-3. At 1:46
PM on Sunday, November, 8, 2015, we asked for Defendant's consent in an email addressed to defense
counsel James Garland, John Hall, and Shankar Duraiswamy, and to counsel for the ATS plaintiffs. Not
hearing back by 9:00 PM, we filed our motion on the same day. Although we did not give Chiquita much
time to respond, Chiquita had filed a joint motion which appeared to have the consent of all interested
parties, and we were concerned that it could be ruled on immediately.

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Opposition brief in the Does v. Boies Schiller & Flexner LLP case: the effect of
discovery is to strengthen the presumption of the Plaintiffs' chosen forum. See R. 942 at
13 n 14. As long as there are common issues among the various plaintiff groups, and
there is common discovery in the United States (such as Chiquita's corporate records in
North Carolina and witnesses in the SLC Report), it makes sense to keep the case in the
U.S. As we argued in our Opposition to Defendant's Motion to Dismiss for Forum Non
Conveniens, R. 820, the MDL transferee court may retain jurisdiction for discovery and
hear a sampling of bellwether cases, and defer ruling on Defendant's Forum Non
Conveniens motion until the Colombian issues predominate. In the meantime, all of the
parties should be entitled to participate in the common issue discovery relevant to their
cases.
b.

It would be Unconstitutional to allow the Defendant to control the

scope of discovery.

The right to confront and cross-examine witnesses is a fundamental aspect of

procedural due process. Jenkins v. McKeithen, 395 U.S. 411, 428 (1969), citing Willner
v. Committee on Character and Fitness, 373 U.S. 96, 103-104 (1963); Greene v.
McElroy, 360 U.S. 474, 496-499 (1959).

Where a party is precluded from exercising

his due process right to have an opportunity to be confronted with all adverse evidence
and had the right to cross-examine available witnesses, the review procedure is
constitutionally defective, and cannot be excused as harmless error. U.S. Constitution,
Amendments 5, 14; Nevels v. Hanlon, 656 F.2d 372 (1981); cf. Derewecki v.
Pennsylvania R. Co., 353 F.2d 436, 442 (1965) ("We realize that the right of crossexamination inheres in every adversary proceeding and that it is established beyond any
necessity for citation of authorities, with certain exceptions not pertinent here, that if

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cross-examination of an available witness is not had the litigant, deprived of crossexamination, has been denied due process of law. But here we have the extraordinary
situation of the witness, a one-time party, not being available and having been put beyond
the reach of any process by death.")
Curiously, throughout its Opposition brief, the Defendant raisies possible harms
that could occur to the ATA plaintiffs, but never states that its own interests could be
harmed. See, e.g., "If given the opportunity to influence the process, [Wolf] could
undermine the ATA Parties' ability to complete their discovery in a timely and efficient
manner." R. 944 at 6. The Defendant has no standing to argue the rights of the ATA
plaintiffs, who haven't taken any position on our Motion. The Defendant's parade of
horribles I could inflict on the ATA plaintiffs doesn't make a lot of sense, either, since we
have a common interest in having the Colombian government respond positively to the
Hague Request and produce useful evidence.
Conclusion
For the foregoing reasons, the Court should grant Plaintiff Does 1-254's Motion to
Participate in Hague Convention Request, and include Wolf as an attorney of record in
Sections 6 and 14 of it. The Court should also consider the scope of the Hague Request,
and how a Colombian judge is likely to view it, and provide some guidance as to how
extensive the investigation into the FARC's financing and extortion is supposed to be.
Respectfully submitted,
/s/ Paul Wolf
_________________________
Paul Wolf, CO Bar #42107
Attorney for Does 1-254
P.O. Box 46213
Denver, CO 80201

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Tel. (202) 431-6986

Fax. n/a
Email. paulwolf@yahoo.com

November 28, 2015

Certificate of Service
I hereby certify that, on the 28th of November, 2015, I filed the foregoing
document with the Court's ECF system, which will send electronic copies to all parties
entitled to receive such notice.

/s/ Paul Wolf

___________
Paul Wolf

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