Case 0:08-md-01916-KAM Document 1091 Entered on FLSD Docket 05/11/2016 Page 1 of 4

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.
______________________________________________/

PLAINTIFFS' RESPONSE IN SUPPORT OF DEFENDANT CHIQUITA BRANDS

INTERNATIONAL, INC.'S SECOND MOTION TO COMPEL COMPLIANCE
WITH THE COURTS ORDERS ON WITNESS-PAYMENT DISCOVERY
The Doe Plaintiffs represented herein join in the Defendant's Motion, R. 1080,
and also request that the Court order that the same discovery be produced to undersigned
counsel. I made my own (Cross) Motion for an Order to Supplement the Production of
"Crime-Fraud" Documents on December 23, 2015. R. 970. My motion referred to the
other plaintiffs' counsels' questionable dealings with Raul Hasbun, Jose Gregorio
Mangones, and Ivan Otero.

The Court had ordered that documents pertaining to

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payments to witnesses in this case must be produced. Attached to Chiquita's renewed

Motion are hundreds of pages of filings and exhibits which were publicly-filed in the
Dole case, which according to Chiquita, were never produced.

With these facts,

Chiquita's Motion would appear to be a simple matter for the Court to decide.
I was unaware of much of what Chiquita just filed as appendices to R. 1080. For
example, I had never even heard of Edwar Cobos Tllez, Edgar Crdoba Trujillo or Jairo
Samper Cantillo before. Apparently, they were at some stage of being recruited by Mr.
Collingsworth to be witnesses in this case. The interests of my clients are harmed by this
strategy, and the pending "emergency" deposition of Jose Gregorio Mangones is of
particular concern. The Dole case was based entirely on a declaration signed by Mr.
Mangones.
The Court should make clear, though, that the reason why communications
among attorneys on the subject of witness payments are discoverable, is that the crimefraud exception applies. Probable cause has been shown that the so-called 'discussions'
of witness payments were part of a much broader conspiracy to recruit and pay
imprisoned AUC members to give false testimony in at least three related cases,
including Drummond and Dole.
Drummond as a RICO conspiracy.

The situation has been accurately described by

See Case No. 15-cv-506 in the NDAL, which

includes counts of Obstruction of Justice (18 U.S.C. 1503), Witness Bribery (18 U.S.C.
201), Witness Tampering (18 U.S.C. 1512), Mail and Wire Fraud (18 U.S.C. 1341,
1343), and Extortion (18 U.S.C. 1951).
Although Mr. Collingsworth can be blamed as the leader and organizer of the
conspiracy, he has destroyed or lost many years worth of emails. Because of this, it is not

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unreasonable to require all plaintiffs' counsel to supplement their productions, and in

particular, their communications with Conrad & Scherer.
In order for the crime-fraud exception to apply, "[f]irst, there must be a prima
facie showing that the client was engaged in criminal or fraudulent conduct when he
sought the advice of counsel, that he was planning such conduct when he sought the
advice of counsel, or that he committed a crime or fraud subsequent to receiving the
benefit of counsels advice. Second, there must be a showing that the attorneys
assistance was obtained in furtherance of the criminal or fraudulent activity or was
closely related to it. In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226
(11th Cir. 1987) Although the Schroeder case was about attorney-client communications,
the court in Drummond held that the same logic applies where the attorney has
perpetrated the fraud, and the client is accused of no wrongdoing. See Memorandum
Opinion and Order of the Honorable Judge Proctor in Drummond v. Collingsworth, filed
as Exihbit 5 to R. 970. ("applying the crime-fraud exception to communications related
to (or in furtherance of) alleged attorney wrongdoing is consistent with the notion that
there are cases in which attorneys may try to hide behind a privilege in order to
camouflage their nefarious schemes.") Id. at 6.
To satisfy the second prong of the Schroeder test, which requires each particular
communication to be in furtherance of a crime or fraud, the Drummond court has
employed a Special Master to review materials over which a privilege has been asserted.
His task is to determine whether each communication is in furtherance of a crime or
fraud. Documents about payments to witnesses - the subject of Chiquita's Renewed
Motion to Compel - would clearly be in furtherance of the crimes described in the RICO

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Complaint. It appears to us that there must be an in camera review of any documents

being withheld on the basis of privilege, if only to determine whether they were in
furtherance of a crime or fraud.
Conclusion
For the foregoing reasons, the Doe Plaintiffs represented herein join in Chiquita's
Renewed Motion to Compel, which is largely co-extensive with the Plaintiffs' own
Motion for Supplemental Production of "Crime-Fraud" Documents. The Plaintiffs also
ask the Court to clarify that the reason that documents about payments to witnesses must
be produced, even though they are work product, is that the crime-fraud exception
applies.
Respectfully submitted,

/s/
____________________
Paul Wolf, CO Bar 42107
Counsel for Does 1-144
1-976, 1-677, 1-254, 1-88
PO Box 46213
Denver CO 80201
(202) 431-6986
paulwolf@yahoo.com

May 11, 2016