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VIA EMAIL
August 15, 2017

ATTORNEYS AT LAW- Michael L. Cioffi, Esquire

ROSALYN SIA BAKER-BARNES Blank Rome Comisky & McCauley LLP
' F. GREGORY BARNHART
T. HARDEE BASS, III 1700 PNC Center
LAURIE J. BRIGGS
' BRIAN R. DENNEY
BRENDA S. FULMER
201 E. Fifth Street
' MARIANO GARCIA
*JAMES W. GUSTAFSON,JR.
Cincinnati, OH 45202
MARA R P HATFIELD
ADAM S. HECHT
JACK P. HILL
KELLY HYMAN' Re: Chiquita Banana
CAMERON M. KENNEDY
MICHAEL H KUGLER Our File No.: 273126
ANDREA A. LEWIS
DARRYL L. LEWIS
PABLO PERHACS"
EDWARD V. RICCI
*JOHN SCAROLA
Dear Michael:
MATTHEW K. SCHWENCKE
CARTER W. SCOTT
' CHRISTIAN D.SEARCY,
CHRISTOPHER K. SPEED 0' 7
To follow up on our email exchanges of July 11-13, 2017, all of Plaintiffs' teams (not
' KAREN E.TERRY
DAVID P VITALE, JR.
speaking for Paul Wolf) are in various stages of obtaining Colombian passports and/or
DONALD J. WARD
`T.CALVIN WARRINER III applying for visas to travel to the U.S. As you no doubt know, both steps involve
OF cQULISEL: bureaucratic processes over which the Plaintiffs have no control. As I previously clarified
'EARL L DENNEY,JR.2
' JOHN A. SHIPLEY III
DAVID K. KELLEY, JR.
in response to your assertion that this should have been done long ago,the process could
WILLIAM B. KING not start until the test Plaintiffs were selected and the timing of discovery was clarified.

SHAREHOLDERS
I note that based on recent experiences ofseveral counsel in our group, it is very unlikely
'BOARD CERTIFIED
that most of the Plaintiffs will receive travel visas to the U.S. Although most of the
ALSO ADMITTED
KENTUCKY Plaintiffs would strongly prefer for safety and other considerations to be deposed in Fort
2 MISSISSIPPI
3 MONTANA Lauderdale, this is not their choice to make. We will keep you informed of the results of
4 NEW JERSEY
NEW YORK
VIRGINIA
our efforts to obtain visas, but one thing that is clear is that it is very unlikely that any
7 WASHINGTON DC visas will be issued in time for any Plaintiffs to appear for the September and early
PARALEGALS'
October dates unilaterally selected by you for the depositions to take place. Even those
VIVIAN AYAN-TEJEDA
NICHOLAS F. DeSELLIS dates are no longer clear since we've agreed not to double track the depositions. Thus,
RANDY M DUFRESNE
JOHN C. HOPKINS we are providing you with notice that, absent learning ofany Plaintiffs obtaining visas in
VINCENT L. LEONARD.JR.
ROBERT W.PITCHER time to appear for their depositions in Fort Lauderdale,they will not be able to be present
CHRIS R. RODGERS
KATHLEEN SIMON
STEVE M. SMITH
at the currently scheduled dates and times.
BONNIE S. STARK
WALTER A.STEIN
To keep the case moving forward as quickly as possible, we again offer to make the
Plaintiffs available for their depositions at a secure location in a large city in Colombia.
We could mutually agree to depose them in a major hotel with professional security.
Alternatively, counsel for Chiquita could depose them by video link, which several of us
have done successfully in other cases based in Colombia. The law is clear that,ifPlaintiffs

W WW.SEARCVLAW.COM
 Michael L. Cioffi, Esq.
Re: Chiquita Banana
August 15, 2017
Page 2

are unable to obtain visas to the U.S., the alternatives we offered would be ordered by the
Court. Courts routinely permit depositions overseas or by telephone or videoconference
when plaintiffs are unable to appear in the United States for deposition. See Hernandez
v. Hendrix Produce, Inc., 297 F.R.D. 538, 541 (S.D. Ga. 2014)(ordering deposition by
videoconference or in Mexico);Stephens v. 1199 SEIU, AFL-CIO,2011 WL 2940490, at
*3(E.D.N.Y. July 19, 2011)(ordering deposition offoreign plaintiff be taken remotely);
Garcia v. Bana,2012 U.S. Dist. LEXIS 87727,*9(N.D. Cal. Jun. 25,2012)(permitting
remote deposition where Plaintiff could not enter United States); Angamarca v. Da Ciro,
Inc., 303 F.R.D. 445, 448 (S.D.N.Y. 2012)(permitting remote deposition of plaintiff in
Ecuador who could not enter United States); Luna v. Del Monte Fresh Produce (Se.),
Inc., 2007 WL 1500269, at *3 (N.D. Ga. May 18, 2007)(permitting overseas or video
conference depositions where plaintiffs were unlikely to obtain U.S. visas); US. v. Philip
Morris USA, Inc., 2004 WL 3253681, at *2 (D.D.C. Aug. 30, 2004) (permitting
depositions and trial testimony of witnesses by video conference, noting "a video oftheir
testimony is no different and no less satisfactory than their actual testimony in open
court.").

Courts also routinely note the value of remote depositions in reducing costs, and have
found that where a party refuses less costly options, costs should not be imposed on the
party being deposed. Estate ofGerasimenko v. Cape Wind Trading Co.,272 F.R.D. 385,
389 n.4 (S.D.N.Y. 2011) (granting motion to conduct depositions by telephone, and
observing that if defendants chose to conduct depositions by video conference or in
person overseas, defendants would bear the expenses); Zito v. Leasecomm Corp., 233
F.R.D. 395, 398 (S.D.N.Y. 2006)(requiring defendants to shoulder the cost of video
conference depositions of plaintiffs if they refused the cheaper option of telephonic
depositions); see also Gee v. Suntrust Mortg., Inc., 2011 WL 5597124, at *3(N.D. Cal.
Nov. 15, 2011)("Parties routinely conduct depositions via videoconference, and courts
encourage the same, because doing so minimizes travel costs"); Guillen v. Bank ofAm.
Corp., 2011 WL 3939690, at *1 (N.D. Cal. Aug. 31, 2011)("A desire to save money
constitutes good cause to depose out-of-state witnesses telephone or remote means.").

Accordingly,there is"no absolute rule as to the location ofthe deposition ofa nonresident
plaintiff' as "courts must strive to achieve a balance between claims of prejudice and
those of hardship." Normande v. Grippo, No. 01 Civ. 7441, 2002 WL 59427, at *1--2
(S.D.N.Y. Jan. 16, 2002)(citations omitted). Ultimately, the determination of"
matter rests in the discretion of the court and there must be a careful weighing of the
relevant facts.'"Abdullah v. Sheridan Square Press, Inc., 154 F.R.D. 591,592(S.D.N.Y.
1994) (quoting Seuthe v. Renwal Prods., Inc., 38 F.R.D. 323, 324 (S.D.N.Y.
1965)).Ordinarily, a defendant is entitled to depose a plaintiff in the forum where the
plaintiff has chosen to sue. Luna, 2007 WL 1500269, at *2. However, Rule 26 of the

SMS
 Michael L. Ciotti, Esq.
Re: Chiquita Banana
August 15, 2017
Page 3

Federal Rules of Civil Procedure authorizes the Court to order that a plaintiffs deposition
be taken in a different location, or by alternative means, ifjustice so requires. Id.; see
Fed.R.Civ.P. 26(c)(2). Thus,ifa plaintiffdemonstrates hardship or burden that outweighs
any prejudice to the defendant, the general rule requiring a plaintiff to appear for
deposition in the forum "may yield to the exigencies of the particular case." Id. at *2
(quoting Abdullah v. Sheridan Square Press, Inc., 154 F.R.D. 591,592(S.D.N.Y.1994)).
In Luna,the court found the following:

Plaintiffs Luna, Garcia, and Nunez are [Mexican] migrant farm workers
of extremely limited means.(Pls.' Mot. for Protective Order [62] at Exs.
6 and 8.) When their H-2A visas expired, Luna, Garcia and Nunez returned
to their homes in Mexico. (Id. at 1-2, Ex. 6.) It is not only prohibitively
expensive for these workers to travel to the United States for depositions,
it is also potentially impossible due to their immigration status.(Id. at Exs.
4 and 5.)Because plaintiffs are poor, it is unlikely that they will be granted
a tourist visa or other temporary permission to enter the United States.(Id.)
Moreover, if plaintiffs apply for a visa and are denied, they may be barred
from re-applying for a significant period oftime, which could affect their
ability to appear at trial. (Id.) Plaintiffs plan to seek humanitarian parole
for purposes of participating in the trial. (Pls.' Mot. for Protective Order
[62] at 10.) However, humanitarian visas, which are issued sparingly, are
not generally granted for the purpose of providing deposition testimony.
(Id. at E x .4.) Plaintiffs understandably want to save this option for trial.
(Id. at 10.)

Luna, 2007 WL 1500269, at *2. The court held that the defendants may either hold the
depositions in Mexico or, in the alternative, depose the plaintiffs by telephone or video
conference or by written questions pursuant to the Federal Rules of Civil Procedure due
to the undue hardship on the plaintiffs.

As the likely result ofthis process will be that the Plaintiffs will be deposed in Colombia,
whether live or by video link, we think it makes sense to just schedule the depositions
with the Plaintiffs sitting in Colombia and to establish that schedule now to avoid
substantial delay. If Chiquita continues to disagree and insists upon wasting the additional
time required for us to establish that Plaintiffs will not get their visas, then we will
Michael L. Cioffi, Esq.
Re: Chiquita Banana
August 15, 2017
Page 4

complete that process in good faith and let you know when we have results for the
Plaintiffs as those results become available.

SCAROLA
son Counsel for Plaintiffs
S/mm

cc: Co-Counsel for Plaintiffs