Case 0:08-md-01916-KAM Document 1113 Entered on FLSD Docket 06/06/2016 Page 1 of 13

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 REPLY IN SUPPORT OF ITS
SECOND MOTION TO COMPEL COMPLIANCE
WITH THE COURTS ORDERS ON WITNESS-PAYMENT DISCOVERY

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Plaintiffs opposition brief makes clear that their central allegation in this case that
Chiquita voluntarily paid the AUC is based entirely on the word of imprisoned paramilitaries
who, by Plaintiffs own admission, have sought compensation from Plaintiffs litigation team to
testify against Chiquita. Yet Plaintiffs Counsel1 continue to withhold, in violation of two prior
Court Orders, discovery regarding Payments to Ivn Otero, an Associate of several paramilitaries
whom Plaintiffs Counsel have repeatedly used to funnel Payments to paramilitary witnesses in
various cases and to influence those witnesses testimony.2 Plaintiffs Counsel contend that
Otero has no relationship with any of the witnesses in this particular case, but as detailed below,
this is not remotely credible. Indeed, Jos Mangones Lugo (Mangones), one of the
paramilitaries whose preservation depositions has been authorized by the Court, recently testified
in another case that Otero is a friend whom Mangones sees constantly. (Ex. 42, at 140:2-5.)3
As another federal court has found, the evidence linking Otero to Plaintiffs Counsels witnesspayment schemes is staggering. (Ex. 1, at 29.) Without access to such evidence, Chiquita
cannot meaningfully examine Mangones or any other paramilitary witness on whose testimony
Plaintiffs may seek to rely. The Court should order Plaintiffs Counsel to produce the withheld
discovery regarding Otero and grant the other relief regarding witness-payment discovery
requested in Chiquitas motion.

Chiquita is seeking to compel compliance with the Courts Orders from both Terrence
Collingsworth and Conrad & Scherer (C&S). Plaintiffs Counsel refers to both. Where
Chiquita refers to one or the other specifically, it does so by name.
2

The capitalized terms Payment, Agent, and Associate refer to terms defined in Chiquitas
witness-payment discovery requests. See Ex. 26, at 6, 8.
3

Exhibits 1-39 are D.E. 1080-2 to 1080-40. Exhibits A-I are D.E. 1094-2 to 1094-10. Exhibits
40 through 50 are attached to Hellermans declaration in support of this reply (Hellerman Reply
Decl.).

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ARGUMENT
I.

Chiquita is Entitled to Discovery Concerning Ivn Otero.

A.

Plaintiffs Opposition Underscores the Need for Discovery Regarding Otero.

Collingsworth begins his opposition brief by arguing the merits of Plaintiffs allegations
that Chiquita voluntarily paid the AUC, based exclusively on statements from two paramilitary
witnesses: Mangones and Ral Hasbn Mendoza (Hasbn). (See D.E. 1094, at 23.) Plaintiffs reliance on these witnesses claims demonstrates exactly why it is completely
unreasonable to withhold the witness-payment discovery at issue. It is undisputed that both
Mangones and Hasbn have sought remuneration from Plaintiffs Counsel to testify against
Chiquita. As detailed in Chiquitas motion, there is evidence that Otero either directly received
this request for Payment (in the case of Mangones) or helped facilitate it (in the case of Hasbn).
(See D.E. 1080, at 2.)4 And, in the same time period that Mangones asked Otero for money for
his daughter (id.), Plaintiffs Counsel discussed, via email, paying $58,800 to Ivan Otero for
Chiquita, Dole and Drummond Kids.5 (Ex. 4.) There is also strong evidence that Mangones
and Hasbn have been improperly influenced by Plaintiffs Counsel to offer adverse testimony
against Chiquita in certain Colombian proceedings Plaintiffs Counsel drafted a script for

Plaintiffs assert that the issue in the case is whether Chiquita paid, when the key factual dispute
is actually whether Chiquita was extorted or whether, as Plaintiffs claim, Chiquita paid
voluntarily. As the very factual proffer cited by Plaintiffs confirms, payments to the AUC were
made under threat of violence. See Ex. A, at 21.
5

Collingsworth attempts to dismiss the evidence regarding Payments to Hasbn and Mangones
simply by asserting that no such Payments were actually made. See D.E. 1094, at 4-5. But
neither Chiquita nor the Court is required to accept Plaintiffs Counsels word as a substitute for
Court-ordered discovery, especially because documentary evidence casts doubt on these denials
(see Ex. 49 (email on behalf of Collingsworth stating, to Jarley Maya Snchez, agent for Hasbn,
that meeting with R[al] H[asbn] went well and there is no question now that we have clear
terms for an agreement as to where you can help us investigate the cases against the banana
companies; D.E. 1080, at 2). Furthermore, Plaintiffs Counsel have a long track record of
misrepresenting facts regarding Payments to witnesses. See D.E. 1080, at 9-10.

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Mangones regarding how to testify about Chiquitas payments (see Ex. 45), and Hasbn changed
his testimony about whether Chiquita was extorted after negotiating with Plaintiffs Counsel to
be paid as a purported expert in this case (see D.E. 837, at 11 & n.11).
These facts suggest that Plaintiffs Counsel may well have used Payments to Otero to
influence the testimony of Mangones, Hasbn, and other paramilitary witnesses. This is
precisely what Plaintiffs Counsel have done in cases against Drummond and Dole. (See, e.g.,
Ex. 1, at 23-24 (describing arrangement whereby Collingsworth had his client pay Drummond
witness through Otero and stating that that witness refused to sign his declaration against
Drummond until he received the $60,000 payment secured through Otero); id. at 24 (On April
19, 2012 Collingsworth handed Ivan Otero $10,000 in cash after [witness in Drummond] had
provided (earlier that same day) the first day of his letters rogatory testimony); id. at 25
([Plaintiffs Counsel] knew and intended that these monthly [$2700] payments [from operating
account of C&S] would be delivered to [witnesses in Drummond] by Ivan Otero.); id. (On
May 22, 2011, Collingsworth emailed [former co-counsel,] copying Bill Scherer. . . . stat[ing]:
Need to pay $2700 per month [to Otero] to maintain until we get the deps in the can . . . .); Ex.
25, at 57:9-58:16, 69:10-73:2-5 (Guevara testifying Otero had offered him money to testify
falsely against Dole).) Chiquita is entitled to find out the extent to which Plaintiffs Counsel
have followed this playbook against Chiquita as well.6

Plaintiffs Counsels offer to provide information about the basic financial arrangement
Plaintiffs counsel have with [] Otero in this case via interrogatory response (see D.E. 1094-1, at
15; see also D.E. 1094, at 14) is wholly insufficient, given their well-documented history of
making inaccurate representations regarding witness-payment issues (see D.E. 1080, at 9-10).
Furthermore, Chiquita is entitled to know more than what is formally included in a co-counsel
agreement for this case. See Ex. 26, at 11 (requesting documents regarding any Payment
[made, offered, considered, or requested] . . . for the benefit of any . . . Agent, Relative, or
Associate of such a Witness (emphasis added)).

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B.

Otero is An Associate or Agent of Numerous Witnesses.

Plaintiffs Counsel do not dispute that the Court has overruled their objections and
ordered them to respond to Chiquitas requests for documents concerning Payments to the
Associates or Agents of witnesses in this case. They argue only that Otero is not, in fact, an
Agent or Associate of any witness in this case. As a threshold matter, although Chiquitas
discovery requests explicitly define those terms for purposes of responding to the requests,
Plaintiffs Counsel argue that these definitions should simply be ignored and, instead, that the
terms should be construed based on their usage in various federal statutes and regulations that
have no application or relevance to this case. (See D.E. 1094, at 11-14.)
Plaintiffs Counsels arguments fail for several reasons. First, a responding party cannot
simply substitute a common law or statutory definition of a term in place of a specific definition
set forth in a discovery request. See Mercado v. HFC Collection Ctr., Inc., 2012 WL 4903312,
at *1 (M.D. Fla. Oct. 15, 2012) (stating that Court need not address the proper definition of
[interrogatory term at issue] under Delaware law and that, given unambiguous definition
provided in the discovery request, Defendants were obligated to respond). Second, Plaintiffs
Counsel never objected to Chiquitas definition of the term Agent, and, while they objected to
Chiquitas definition of the term Associate on the ground that it was unduly broad (see D.E. 765,
at 4), the Court long ago overruled that objection in its May 5 Order.7 Plaintiffs Counsel should
not be permitted to withhold documents in violation of Court Orders and then, when facing a
motion to compel compliance with those Orders, seek to re-litigate the original ruling. Third,
7

See D.E. 797, at 1, 2, 4 (stating that Court had reviewed all requests and objections thereto;
using the terms agent and associate in its descriptions of RFP Nos. 1 and 3; and stating, as to
RFP No. 1, all objections lodged by plaintiffs counsel to this request are OVERRULED and,
as to RFP No. 3, as amended to apply to Witnesses and not the broader Paramilitaries, all other
objections lodged to this Request [a]r[e] OVERRULED).

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Chiquitas definitions of Associate and Agent, and request for Payments made to them, are
entirely reasonable in light of the credible public evidence reflecting Plaintiffs Counsels
practice of using intermediaries to funnel Payments to witnesses or their Associates in
connection with the witness testimony.8
Definitional issues aside, the evidence that Otero is an Associate or Agent of numerous
paramilitary witnesses in this case is irrefutable. Chiquita has recently learned that Otero sat
directly behind Mangones while Collingsworth took Mangones deposition in the Dole matter in
January 2016. (See Ex. 46.) When counsel for Dole asked Mangones about his relationship with
Otero, Mangones testified: Otero is a friend of mine. I see him constantly. (Ex. 42, at
140:2-5.) Mangones own description of Otero as a friend who he sees constantly brings
him squarely within Chiquitas definition of Associate, which explicitly includes friends. (See
Ex. 26, at 6.) This fact, alone, is sufficient to grant Chiquitas motion. And it underscores the
unreliability of Plaintiffs Counsels factual assertions regarding Oteros relationships with
witnesses. Remarkably, after Mangones testimony linking himself so closely with Otero for
which Collingsworth was present Collingsworth stated to Chiquitas counsel that Mangones
request for money from Otero was akin to someone approaching a stranger on the street. (See
Hellerman Reply Decl. 2.) And even though Collingsworths opposition attaches and cites to
portions of Mangones deposition (see Ex. C), it excludes and ignores the unequivocal testimony
establishing that Mangones and Otero are Associates.
Mangones testimony also established that Otero is an Agent or Associate of another
paramilitary whom Plaintiffs have identified as a witness in this case, Rodrigo Tovar Pupo (alias
8

See, e.g., Ex. 1, at 23-25 (Payments through Otero); Ex. 50, at 15 (Payments to wife of
Drummond witness), 17-18 (Payments to 3rd parties, which names were provided by Drummond
witness).

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Jorge 40, referred to herein as Tovar). (See Ex. 5, at 8.) Mangones testified that he and
Tovar had frequent meetings with Otero, and that Tovar considered Otero to be his trusted
man. (Ex. 42, at 88:18-91:9.) Mangones further testified that Otero was from the same area
as Tovar and that Tovar was the one who appointed Otero to be the coordinator for the
[paramilitary] applicants for the Justice and Peace program in Colombia. (See id. at 89:7-14.)
Even under the various definitions offered by Collingsworth, Mangones testimony establishes
that both he and Tovar are Associates of Otero.9
In addition, Plaintiffs Counsels argument lacks merit because they already conceded, in
their Fifth Amended Responses to Chiquitas Interrogatories, that Otero was an Agent or
Associate of another paramilitary witness, Edgar Crdoba Trujillo (Crdoba). (See Ex. 5, at
15 (stating that Mr. Otero represented in some capacity . . . Edgar Ariel Crdoba Trujillo (alias
57) in response to request for identification of any Plaintiffs Counsel who is or was . . . an
Agent, Relative, or Associate of a Paramilitary).) Yet Plaintiffs Counsel now seem to rely on a
statement from Otero claiming that he was never an agent of Crdoba. (See Ex. G, at 2 (Otero
stating that he was never [an] agent for Crdoba and do[es] not consider [Crdoba to be his]
associate.).) These ever-shifting explanations are consistent with Oteros history of taking
inconsistent positions regarding his representation of paramilitaries. (See Ex. 1, at 25 (Otero at
times represented himself to be El Tigres criminal lawyer.); id. at 29 (The story keeps
changing as to whether or not Otero represented any witness in the civil case at the time he was
paid $80,000 and promised a contingency fee in Balcero [v. Drummond]); id. at 30 (While
these earlier statements indicate that Otero does in fact represent the former paramilitaries,
9

See D.E. 1094, at 11-14 (including as definition of associate, a loose relationship as a

partner, fellow worker, colleague, friend, companion, or ally and the join[ing] with others in a
common purpose, activity . . . .).

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[Plaintiffs Counsel] now contend that those statements were mistaken.).) His assertions are
simply not reliable, and the Court should not credit them.
Plaintiffs Counsel also rely on Oteros declaration to argue that he is not an Associate of
Edwar Cobos Tllez (Cobos), yet another paramilitary witness in this case. But in that same
declaration, Otero recounts how he requested a favor from Cobos how to get in contact with
the attorney for another witness in this case, Salvatore Mancuso with which Cobos complied.
(See id.; see also Ex. 6, at 4 (noting that Cobos put [Otero] in contact with Mancusos
lawyer).) This common effort would appear to classify Cobos as an Associate even based on
Collingsworths various definitions of the term. (See supra note 9.)
In addition to these relationships with several paramilitary witnesses, Plaintiffs Counsel
admit that another witness in this case, Jairo Samper Cantillo (Samper), has requested money
from Otero. (See Ex. 5, at 12-13.) And another witness in this case, Adolfo Guevara Cantillo
(Guevara), testified that Otero attempted to bribe him to testify falsely during a deposition for
use in another case brought by Plaintiffs Counsel. (See Ex. 2; Ex. 25, at 69:10-73:18.)10
Finally, Guevara, Mangones, and Samper have testified that they had dealings with Otero, either
before, during, or after paramilitary demobilization, because Otero regularly provided legal or
other services to the AUC (see Ex. 25, at 50:8-51:12; Ex. 42, at 89:7-90:16, 91:10-18; Ex. 43, at
75:5-76:4).11
10

In an attempt to refute this, Collingsworth attaches a declaration that Otero executed for the
Dole case stating that he never offered [Guevara] anything for his testimony in the Dole case or
any other case. Ex. D, at 4. But, that it is in direct contradiction to the testimony of Guevara
(see Ex. 25, at 69:10-73:18), the declaration of his colleague, Rolando Garavito Zapata
(Garavito) (see Ex. 2, at 1), and text messages in support of Garavitos declaration (id. at 4).
11

C&S suggests that it is somehow exempt from Plaintiffs Counsels obligations to comply with
the Courts Orders. But it was not excluded in any way from the original May 5 Order. And
C&S reliance on the specific instruction to Collingsworth by this Court in its August 4 Order
(see D.E. 1095, at 5-7) to address his obstinate refusal to comply with the May 5 Order did
(continued)
7

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II.

The Court Should Order Plaintiffs Counsel to Correct Their Inappropriate

Redactions.
Given Plaintiffs Counsels history of obfuscation regarding Payments to witnesses, their

redactions of responsive documents about those Payments are suspect and likely go beyond what
this Court has allowed them to withhold. Pursuant to the Courts August 4 Order, Plaintiffs
Counsel can redact portions of responsive documents only if (a) the portions relate to the
propriety of Payments or (b) are portions that would be nonresponsive which are purportedly
protected by work product or common interest privilege. (D.E. 872, at 3.) Redactions for any
other reason, including, for non-responsiveness generally, are not permitted.
Plaintiffs Counsels redaction of paragraph 4 of the Leete Memorandum (see Ex. 7
(produced version)) violates the Courts August 4 Order because its content does not fall under
either (a) or (b) (see Ex. 6). Rather, the paragraph reflects a prior conversation with Cobos,
whom Plaintiffs Counsel have identified as a fact witness in this case (see Ex. 5, at 7), about his
willingness to serve as an expert witness, i.e., a witness whom Plaintiffs Counsel could
compensate in exchange for testimony. The passage therefore falls squarely within RFP No. 1,
which seeks discovery on Payments requested, offered, or considered (see Ex. 26, at 11), and
should not have been redacted. The fact that Plaintiffs Counsel have apparently complied with

not exempt it from its obligation to produce responsive documents. Indeed, just a few days later,
on August 6, the Court made clear that it expects at this juncture that all parties to this
proceeding fully understand that the Court intends full compliance with the terms of its May 5,
2015 directive. (D.E. 883, at 1-2 (emphasis added).)
Neither did the August 4 Order narrow Chiquitas RFP No. 1 to Payments made, as C&S
argues. See D.E. 1095, at 4-5. The Order itself states that Chiquitas motion to compel [wa]s
GRANTED as to Item Nos. 1 and 3, which it described as seeking documents relating to the
existence of payments to paramilitary witnesses made by, offered by, or requested of plaintiffs
counsel not just Payments made. D.E. 872, at 2. Nowhere does the August 4 Order
purport to limit RFP No. 1 to exclude documents regarding Payments considered but not made.
See Ex. 26, at 11.

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the portion of the August 4 Order that directed them to submit the document for in camera
review does nothing to change the fact that the redaction itself brings them into non-compliance
with the Courts Order.
This improper redaction underscores why the Court should review the other redacted
documents Plaintiffs Counsel submitted for in camera review. Collingsworth contends that the
Court need not do so because Chiquita has not disputed their redactions (see D.E. 1094, at 18);
but, with the exception of a few documents made public in Dole, Chiquita cannot dispute any
specific redactions because it does not know the content of what was redacted. What Chiquita
does know is that redactions based on Plaintiffs Counsels self-serving determination of what is
non-responsive in an otherwise responsive document is improper.12 (See D.E. 1080, at 16-17
(collecting cases).)13 The Court should compel Plaintiffs Counsel to produce unredacted copies
of responsive documents that they improperly redacted.
III.

The Court Should Order Plaintiffs Counsel to Preserve Their Documents and Files.
Plaintiffs Counsel state that they do not object to an order requiring them to preserve

their documents regarding witness Payments if such an order applies to all parties. (See D.E.
1094, at 20; D.E. 1095, at 2 n.2.) But the only parties who are known to have failed to preserve
12

Collingsworth offers the same muddled explanation of Plaintiffs Counsels nonresponsiveness redactions that he did in the course of meeting and conferring on this issue. On
the one hand, he states that Plaintiffs can redact as non-responsive information about other
cases as long as any discussion about payments to witnesses in other cases does not concern
witnesses that are also witnesses in this case. Plaintiffs followed th[is] rule[] in making their
redactions. D.E. 1094, at 17. On the other hand, he suggests that the redactions were based on
work product concerns, asserting that Plaintiffs did confirm that 100% of the non-responsive
redactions were also work product from other cases. Id. at 18. If, in fact, any of these
redactions were made solely on the basis of non-responsiveness, they are improper.
13

The fact that the Court sustained Plaintiffs Counsels objections to non-overlapping witnesses
with regard to RFP No. 3 (see D.E. 797, at 4; D.E. 1094, at 17) merely takes documents
consisting solely of that information out of the realm of responsive documents. It does not
entitle Plaintiffs Counsel to redact responsive documents that contain both responsive and nonresponsive information. See D.E. 1080, at 16-17 (collecting cases).

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evidence are Plaintiffs in this case, through their counsel: Collingsworth and C&S. (D.E. 83946, at 11; D.E. 872, at 4.) Ordering all other plaintiffs and defendants to retain records beyond
what is required under the Federal Rules is therefore unwarranted. Plaintiffs Counsel have
already presumably established procedures to preserve their witness-payment documents to make
them accessible for forensic examinations authorized by the Dole and Drummond courts. (See
Ex. 47; Ex. 48, at 666:22-24.) Chiquita is merely requesting that this Court order them to retain
those documents for the duration of this case (through any appeal) in light of the evidence that
some of those documents were destroyed.
IV.

The Court Should Order Plaintiffs Counsel to Cover Fees and Costs.
Chiquitas motion with regard to Otero was not made under Rule 37(a) (see D.E. 1094, at

19), because Chiquita is not seeking to compel discovery other than that what the Court has
already ordered. Plaintiffs Counsel have been under a continuing obligation to produce
responsive documents pursuant to the Courts May 5 and August 4 Orders. (See Fed. R. Civ. P.
26(e).) Chiquita moved to compel because they have failed to do so. The costs of seeking their
compliance with the Courts Orders should therefore be borne by them. The notion that it is
Chiquita who should cover Collingsworths fees is wholly without merit.14
CONCLUSION
For the foregoing reasons, and those outlined in Chiquitas motion, the Court should
grant Chiquitas motion and order the relief sought therein.

14

To the extent the Court wishes to seriously entertain Collingsworths request, Chiquita
requests an opportunity to be heard in open court.

10

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Dated: June 3, 2016

Respectfully submitted,

John E. Hall
Maureen F. Browne
Shankar Duraiswamy
Jos E. Arvelo
Jaclyn E. Martnez Resly
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street NW
Washington, D.C. 20001
Telephone: (202) 662-6000
Facsimile: (202) 662-6291

/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

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

Counsel for Chiquita Brands International, Inc.

and Chiquita Fresh North America, LLC

11

Case 0:08-md-01916-KAM Document 1113 Entered on FLSD Docket 06/06/2016 Page 13 of 13

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document with the
Clerk of the Court using CM/ECF on this 3rd day of June, 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:

12

/s/ Robert W. Wilkins

Fla. Bar No. 578721