Case 0:08-md-01916-KAM Document 1997 Entered on FLSD Docket 07/10/2018 Page 1 of 6

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 ACTION

Does 1-976 et al v. CBI, 10-80652-CIV-MARRA

_______________________________________________/

Response to Attorney Jim Green's Motion to Modify or Amend the Court’s

Order Regarding Procedures for Witness Depositions in Colombia [De 1996]

The Court should consider Mr. Green's Motion, DE 1996, in conjunction with my

Motion to Permit Voluntary Non-Party Witnesses to Testify at Trial by Video, filed two

days ago as DE 1994. Mr. Green doesn't refer to this anywhere in his Motion, other than

in the Certificate of Conference at the end, where he states that no other counsel,

including those of the Defendant, have responded to him. DE 1996 at 20. Chiquita's

response was directed to me, and already filed as DE 1994-1.

Mr. Green and I are requesting different relief to resolve the same problem. He

wants to take depositions of voluntary (non-paramilitary) witnesses in Colombia without

going through the Hague Convention process for each one, and requests reconsideration

of the Court's prior Order, DE 1902. I don't want to have to depose my own witnesses at

all. I already know what they're doing to say. The depositions only benefit the

Defendant, yet the extraordinary travel costs will be paid by the Plaintiffs. Moreover, the
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plaintiffs bear the burden of proof in this case, and will be unfairly disadvantaged if they

are only allowed to present testimony from witnesses who have been deposed.

A. Deposing every witness in the case will be burdensome and wasteful, even if it
is done without resort to the Hague Convention process.

I identified six common witnesses in Colombia, and stated, as does Mr. Green,

that many of the bellwether cases have more witnesses than the plaintiffs themselves.

Although the bellwether pool has been reduced from 56, there are still a lot of witnesses

out there. So once again, the Court will hear motions to extend the discovery deadline to

take 50 or more depositions in Colombia, which cannot possibly be done through the

Hague Convention or by applying for visas to the United States by the discovery cutoff

date of August 20, 2018. And this would be only one of three train wrecks timed for the

close of fact discovery. In addition to these approximately 50 voluntary witnesses in

Colombia, Mr. Scarola made Hague Requests for depositions about 30 Colombian

prisoners. A Colombian judge reserved one day, either every week or every two weeks

(there is conflicting information) on his calendar for this, in a fishing expedition that will

go on for a long time. Mr. Scarola wants to depose about the same number of Chiquita's

employees in the U.S. over the next month as well. Counsel for various Individual

Defendants have been more active lately, and there are a lot of people's schedules to

coordinate. On the other hand, Chiquita hasn't disclosed any witness in Colombia, or

made any of its own Hague Requests.

As Chiquita recently recognized, see DE 1995, I made minimal discovery

requests of the Defendants. I only requested four depositions - of a Rule 30(b)(6) witness

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on the issue of Chiquita's contacts with the AUC,1 and of three paramilitaries in

Colombia.2 I made no actual request for production of documents, other than materials to

describing what was already produced; ie. subpeonas and requests for production, and

responses and objections, that led to the original productions of these documents, so that I

could understand the 2 million pages they produced. They didn't produce that until the

1
I was allowed a little over an hour of the two day Rule 30(b)(6) deposition two weeks
ago. I was able to ask the witness about 3-4 exhibits before my time ran out and Jack
Scarola asked me to stop. Although I provided many pages of questions to Attorney Jim
Green, and 59 exhibits, none of it was covered for the rest of the day, at least until about
5:20 PM when I had to get off the call. I asked for a few more minutes on the second day
but there was no time for me.
The Court hasn't yet ruled on my Motion to Compel the deposition of a Rule 30(b)(6)
witness on the issue I was trying to investigate: Chiquita's contacts with the AUC. DE
1915, 1927. In addition, as I predicted in the Motion, the witness, Ms. Howland, was a
corporate officer unable to answer my questions about the details of the contacts, which
were made by about four Banadex employees whom I have already named. DE 1915.
The Court should grant this motion, which is still pending, allowing me three hours to
conduct a telephone deposition of a witness who is familiar with the subject.
2
Mr. Green repeatedly accuses me of "dropping the ball" for the deposition of Irving
Bernal, but the Court ordered Mr. Scarola to arrange it. DE 1857 "... new letters of
request shall issue as to these two individuals ... with the understanding and upon the
condition that designated liaison counsel for plaintiffs in these matters, Attorney Scarola,
shall communicate in advance with all plaintiff co-counsel, including Mr. Wolf, as well
as defense counsel, in coordinating mutually agreeable dates and times for the taking of a
single deposition from these witnesses, and shall further communicate with all plaintiff
co-counsel, including Mr. Wolf, as well as defense counsel, in coordinating a questioning
protocol for the taking of a single deposition of these witnesses." Id. at 2. I sent a copy of
this Order, along with an email to various counsel, but only Chiquita replied. I again
offered my help in arranging the deposition and concluded that since no one was
answering me, and the Order says Mr. Scarola is supposed to do it, I was not going to
worry about it. See Exhibit 1 attached hereto.
Mr. Green's Deposition Notices always state that the depositions do not apply to my
cases and that I will not be involved in the questioning. One of the reasons I will oppose
extensions to the discovery cutoff date is that I am not benefitting from the discovery. I
have still received no reply from Mr. Green or Mr. Scarola about the logistics of the
depositions of Bernal and Veloza, which they were supposed to make within 24 hours of
the correspondence they received from the Colombian courts. I have also proposed to
plaintiffs counsel and counsel for the defendant that we discuss a "questioning protocol"
and gave them my proposal in writing, but have not yet recieved any reply. See Exhibit 1
attached hereto.

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Court ordered it. I also made numerous requests for admissions, but these will aid the

Court in narrowing the issues for trial, and are meant to reduce the amount of work in the

case.

In contrast, I brought six bellwether plaintiffs to Florida so Chiquita didn't have to

take their depositions by video. Each plaintiff had to respond to interrogatories and

requests for production of documents, and a second round of requests for documents

related to their visa applications. I have really gotten nothing in discovery, other than the

2 million pages of documents from other investigations, and an hour of the time of the

Rule 30(b)(6) witness. I am not able to afford to depose any more witnesses, and

shouldn't have to pay Chiquita's discovery costs, which would be minimal if they'd agree

to take the depositions by video. Since they won't, the Court should order that these non-

party witnesses can testify by video at trial.

B. At least one important witness was denied a visa, presenting a concrete issue
on which the Court may rule.

An eyewitness to the "bus massacre"3 incident frequently cited by Chiquita was

denied a visa to the United States when I tried to bring him to Florida in February, 2018.

Chiquita's consistent position, restated as recently as two weeks ago in the Rule 30(b)(6)

deposition, is that this incident shows that if they did not make "extortion" payments,

their employees would be killed. The witness will state, as he did in a written

declaration, that the farm was being used as a base by the AUC, and that the FARC

committed the massacre in retaliation for Chiquita's support of the AUC. This is

confirmed in documents showing that Chiquita's strategy was always to pay all of the

3
The identity of the witness is highly confidential under the protective order. He is also a
plaintiff in one of the complaints. His declaration was produced in discovery to Chiquita
and by email to Mr. Green.

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illegal groups, but to try to make the payments quietly to avoid the groups' adversaries,

whom they were also paying, from finding out. This even appears in Chiquita's narrative

of their meeting with AUC leader Carlos Castaño, whom they said complained about

their payments to the FARC.

The witness' wife was one of the people killed in this incident. The witness

worked on a nearby farm, and brought her to the hospital, although she did not survive.

He is a plaintiff in the "FARC" case, Does 1-254 v. CBI, 11-cv-80405, but was not

selected as a bellwether plaintiff. Still, his testimony is relevant to the case overall. The

question is, will he be allowed to testify at trial? The options are to a) take his deposition

in Colombia, with or without resort to the Hague Convention, or b) allow his testimony at

trial by contemporeanous transmission from a remote location. FRCP 43(a). As argued

in my Motion, DE 1994, live testimony is preferable to reading deposition testimony into

the record. So, allowing witnesses who are denied visas to testify by video not only saves

money, but results in better evidence and a better trial.

Conclusion

I would consent to Chiquita's taking the depositions of non-party witnesses in

Colombia without making Hague Convention Requests. I have offered to make them

available where they live in Urabá, or in Medellin, or by video, but the costs of deposing

every witness are exorbitant and far greater than what I am able to spend putting together

my own side of the case.

Rather than amending its prior order on deposition protocols, the Court should

GRANT undersigned counsel's Motion to Permit Voluntary Non-Party Witnesses to

Testify at Trial by Video, DE 1994. Live testimony is preferable to reading a deposition

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into evidence, or showing a recorded video. Counsel brought six plaintiffs to Florida for

depositions, all on time on the dates specified by Chiquita, but only asked to depose one

of Defendant's witnesses, and only got about an hour of that person's time. As will be

argued in a Reply, although the plaintiffs themselve may be obligated to appear in their

chosen forum, the law is different for non-party witnesses.

Respectfully submitted,

/s/ Paul Wolf

_____________________
Paul Wolf, CO Bar 42107
Attorney for Plaintiffs
PO Box 46213
Denver, CO 80201
(202) 431-6986
paulwolf@yahoo.com
fax: na

July 10, 2018

Certificate of Service

I hereby certify that on this 10th day of July, 2018, I filed the foregoing document
with the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which
will send electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

_____________
Paul Wolf