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Case 0:08-md-01916-KAM Document 1160 Entered on FLSD Docket 09/30/2016 Page 1 of 7

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
Case No. 08-01916-MD -MARRA/JOHNSON

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,


ALIEN TORT STATUTE AND
SHAREHOLDER DERIVATIVE LITIGATION
____________________________________________________________/
This Document Relates To:
ATS ACTIONS
____________________________________________________________/
08-80421-CIV-MARRA
08-80508-CIV-MARRA
08-80465-CIV-MARRA
10-80652-CIV-MARRA
11-80404-CIV-MARRA
11-80405-CIV-MARRA
____________________________________________________________/

Memorandum in Opposition to Supplemental Motion to Enforce


Court Order With Respect to Attorney Paul Wolf, and for Sanctions
On August 29, 2016, I received several emails from the movant, Marco Simons.
Mr. Simons' first email to me, attached in redacted form hereto as Exhibit 1, advised me
that "several months ago" he received documents from the Colombian judiciary,
remitting the Letters Rogatory sent by the Court on April 28, 2015. D.E. 788-791. The
Letters Rogatory were in response to an emergency request of the movants to take the
depositions of three imprisoned Colombian paramilitaries: Jose Gregorio Mangones
Lugo, Jesus Ignacio Roldan, and Freddy Rendon Herrera. Simons also stated that the
deposition of Jose Gregorio Mangones Lugo was never successfully scheduled by the
Colombian authorities, despite his best efforts. See Exhibit 1. I replied to the email,
reiterating my opposition to the deposition until the witness payment discovery ordered

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by the Court has been produced.1 I also forwarded the email, with my comments, to
counsel for the Defendant, Chiquita Brands. About two hours later, Mr. Simons sent a
nearly identical email to the Defendant Chiquita Brands. Chiquita publicly filed this
email as D.E. 1156-2, and I have attached it hereto as Exhibit 2.2 I redacted a few
sentences from the version I received, so that the public filings are the same. Mr. Simons
apparently considers the redacted material to be particularly confidential, since he
omitted it from the email he sent to Chiquita. He also apparently considers the email to
Chiquita to be not confidential, although it is about the scheduling of a paramilitary
deposition.
Simons argues that my inclusion of the Defendant in this communication violates
this Court's Order dated August 3, 2015. See D.E. 865. The Order stated that "any
discussions within Plaintiffs counsel or Defendants' counsel regarding preparations for
these examinations, or other issues of joint coordination in this MDL proceeding, shall
1

My position for several years now has been that the use of Mangones as a witness is in furtherance of a
fraud on the Court, as was Mangones' false testimony in the Dole litigation. This is a part of a RICO
conspiracy affecting numerous cases, as described by the Drummond Company in the Complaint in Case
15-cv-506-DAP (NDAL). The Defendant Chiquita Brands appears to agree. See Defendant's Second
Motion to Compel Compliance with the Court's Orders on Witness-Payment Discovery, D.E. 1080, which
refers to Mangones throughout. "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." Id. at 12. Chiquita had previously filed an exhibit from a case in Florida Circuit Court, 09-011600
(05), showing an excerpt of a "script" for Mangones, in which he would make the false statement that he
met with Raul Hasbun and a representative from Chiquita Brands to discuss Chiquita's payments. See D.E.
914-2. This is only one of numerous misrepresentations by Mangones of which we are aware. I
complained to Bar Counsel about Mangones' false testimony as far back as October 14, 2013.
2
Chiquita filed this material as new evidence relevant to its Renewed Motion to Dismiss for Forum Non
Conveniens, D.E. 741. The argument is a non-starter. Colombian courts obviously have the power to
compel a person to testify in a judicial proceeding, whether pursuant to a Letter Rogatory, or a lawsuit
initiated in Colombia. So this is not a factor in the convenience of a U.S. forum. Would Mr. Mangones'
right against self-incrimination be different depending on the nature of the judicial proceeding? This seems
doubtful, although it is conceivable that his plea agreement could treat these situations differently. In any
event, neither Chiquita nor Mr. Simons made these arguments to the Colombian judges who considered the
Letter Rogatory, thereby waiving them.

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proceed under an understanding of mutual confidentiality except where consent to


disclose to other parties has been given or a court has ordered disclosure." Id. at 2. The
Order treats communications between opposing counsel as confidential as well, and states
that no communications about the deposition details shall be filed in the public record.
Id. at 3.
Notably, the Court used the term "confidential" rather than "privileged." No
court, either in Florida, Alabama, or the 11th Circuit, has held that there is any joint
privilege between myself and the movants.3 If Chiquita were ever to ask me for these
communications in discovery, I would have to produce them.

As Mr. Simons

acknowledges, I have not communicated substantively with him or his co-counsel since
2012.4 The impasse results from my accusation that the movants are co-conspirators in
Mr. Collingsworth's RICO conspiracy.5 These attorneys are hostile and adverse to my
clients. Their dealings with potential witnesses have seriously harmed my clients' cases.

The movants filed two Appeals and a Writ of Mandamus in the Eleventh Circuit, of Judge Middlebrooks'
Order denying Searcy Denney Scarola Barnhardt & Shipley LLP's Motion to Quash a subpoena for witness
payment evidence relevant to the Drummond v. Collingsworth litigation. See 14-15722, 14-15749, and 1411956. These Appeals and Writ of Mandamus were all either denied or withdrawn. All were based in part
on the argument that I had agreed to a "common interest confidentiality arrangement," despite the clear
evidence that I had refused to sign a document drafted for that purpose. More recently, Mr. Simons
notified me that the group he represents would continue to exclude me from their communications unless I
would agree to confidentiality. See Exhibit 1 to D.E. 945.
4
Mr. Simons claims I delayed the depositions but provides no logical rationale for this argument. How
could I have delayed them, when I was never involved in the scheduling, and only learned of the
unsuccessful attempt to depose Mr. Mangones eleven months after it occurred?
5
Mr. Simons is no stranger to fraudulent cases. Not only does he insist on taking the "emergency"
deposition of a witness known to have testified falsely in the Dole case, and who, at a minimum, asked to
be paid for his testimony in this case. Simons was also on the wrong side of the Drummond v.
Collingsworth and Chevron v. Donziger cases, two of the most egregious examples of attorney misconduct
in the history of the Federal courts. After hearing my complaints, and those of Mike Hugo of Parker
Waichman Alonso LLP about the witness payments in Drummond, Simons filed an amicus curiae brief in
support of Collingsworth in the 11th Circuit, making no mention of the payments to witnesses. Simons
also wrote motions to quash subpeonas, in support of Steven Donziger's fraud on the court. It's not yet
clear whether Doe v. Exxon, 01-cv-1357-RCL (D.D.C.), another joint project of Mr. Collingsworth and
Simons, was also fraudulent. After Exxon's lawyers recently made such allegations, the subsequent filings
in the case were sealed.

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Later the same day, Mr. Simons sent me copies of the documents he was referring
to.6 These documents were apparently sent to Chiquita on August 29th as well, and were
filed by Chiquita as D.E. 1156-3, 1156-4 and 1156-5. When I read these documents, I
learned for the first time that the deposition of Mr. Mangones had been scheduled for
2:30 p.m. on October 22, 2015. D.E. 1156-3 at 14, 17. However, Mangones "decided
not to attend the examination, where he had proceeded to sign a document of no
attendance, which he would send to this Judicial Services Center SPOA."7 Id. at 19. I
learned of this deposition, and the fact that Mangones refused to testify at it, eleven
months after it was scheduled.
For the past year, I've been under the impression that Mr. Simons has been unable
to schedule the deposition, for unknown reasons, but still intends to do so. It appears that
the Defendant Chiquita Brands also believed this to be true. For example, Chiquita's
Second Motion to Compel Compliance with the Court's Orders on Witness-Payment
Discovery, D.E. 1080, expresses concerns about Mr. Mangones throughout. "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." Id. at 12. Little did they
know, Mangones had long ago made clear his intention to not testify.
Simons blames the Colombian authorities for not being cooperative in scheduling
the deposition. See Exhibits 1 and 2. However, he hasn't shared with the Court or the
6

Simons has provided the communications he received, but not the communications he sent, to the
Colombian judiciary. It seems unlikely that the Colombian judges knew that these were ex parte
communications, and were not being communicated to any other litigants.
7
Presumably, Mangones' refusal to appear was based on his Constitutional right not to incriminate himself.
I haven't seen the document signed by Mangones, but only references to it in the Exhibits to D.E. 1156.

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other litigants, any evidence of efforts made to reschedule the deposition, or to challenge
Mangones' refusal to testify. Perhaps there is some basis, pursuant to his plea bargain, to
force him to do so. If arguments were made to Colombian judges on this point, Simons
has not described them. Rather than being uncooperative, the record shows that the
Colombian judiciary closed these cases after nearly a year of inactivity. The Court may
construe this as a waiver of a challenge to Mangones' apparent invocation of his right
against self-incrimination.
It also seems unlikely that Simons' ex parte contacts with the Colombian courts
were what those judges had in mind. It's hard to imagine that any judge, in Colombia or
the United States, would intentionally notify only one of the parties to a lawsuit of the
scheduling and outcome of a deposition. Why Mr. Simons did not disclose this
information earlier is for him to explain.
Simons also refers to his previous Motion for Sanctions, D.E. 968, which relates
to the August 12, 2015 deposition of Jesus Ignacio Roldan Perez. I learned of that
deposition directly from the Colombian judge who presided over it. I sent my co-counsel
Alex Alberto Morales to attend the deposition, after Mr. Simons advised me in an email
that he would not coordinate with me in the Roldan deposition or any other MDL matter
unless I would agree to sign a confidentiality agreement. See Exhibit 1 to D.E. 945.
After Mr. Simons made this Motion, I filed a Cross Motion for an Order to Supplement
Production of "Crime-Fraud" Documents, D.E. 970, which is largely co-extensive with
Chiquita's Renewed Motion to Compel, D.E. 1056, and still pending before the Court.
As it turns out, Roldan had little or no personal knowledge about this case. What
he was expected to say, and what dealings he may have had with Mr. Collingsworth or

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Mr. Otero, we'll never know. We do know that Mr. Mangones has changed his mind
about testifying. This could be because Drummond produced discovery to the Colombian
fiscalia (attorney general) regarding the issue of witness payments, and a criminal
investigation into Collingsworth's witnesses was opened. Or, he could now consider that
his participation in the conspiracy was a mistake.
Conclusion
Although neither Mr. Collingsworth nor Mr. Scherer are among the movants, Mr.
Mangones is their witness. Their case against the Dole Food Company was based almost
entirely on the false testimony of Mangones, and dismissed after another witness, Adolfo
Enrique Guevara Cantillo, complained about Mr. Otero's attempt to bribe him. The
payment of witnesses for testifying falsely is not only a fraud on the court: it's a crime.
Instead of sanctioning me and ordering me to treat the movants' communications
as privileged, the Court should consider the movants' failure to timely notify the other
parties, or the Court, of Mangones' refusal to testify in the deposition of October 22,
2015. This eleven month delay should also be considered as a factor in Chiquita's
pending Motion to Compel Compliance with the Court's Orders on Witness-Payment
Discovery, D.E. 1080, and on my Cross Motion for Supplemental Production of Crime
Fraud Documents, D.E. 970.

The Court may infer that the movants intentionally

withheld the information that Mangones refused to testify, until after the Court decided
the witness payment discovery motions. Finally, the Court may wish to clarify the terms
of its August 3, 2015 Order, D.E. 865, and explain how my clients could be adequately
represented if I am not notified of depositions or allowed to participate in them,

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particularly in light of the evidence of payments to Mr. Mangones, and the Dole and
Drummond cases.
Respectfully submitted,

/s/ Paul Wolf


______________________________
Paul Wolf, CO Bar #42107
Attorney for Does 1-144, 1-976,
1-677, 1-254 and 1-88.
PO Box 46213
Denver, CO 80201
(202) 431-6986
paulwolf@yahoo.com
fax: n/a

September 30, 2016

Certificate of Service
I hereby certify that on September 30, 2016, I electronically filed the foregoing
Opposition, and associated Declaration and Two Exhibits, with the Clerk of Court using
the ECF system, which will send notification of such filing to all persons entitled to
receive such notices.

/s/ Paul Wolf


____________________
Paul Wolf, CO Bar #42107