Case 0:08-md-01916-KAM Document 2185 Entered on FLSD Docket 11/12/2018 Page 1 of 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (Ohio Action) (Does 1-2146)

__________________________________________/

Plaintiffs' Reply to Motion to Reschedule the Colombian Depositions of Raúl Emilio

Hasbún Mendoza, Ludy Rivas Borja, and a Confidential Fact Witness [DE 2166]

The Defendant argues that the depositions should not be rescheduled because the deadline

for fact discovery passed on October 18, 2018. See Defendant's Response in Opposition, DE 2182.

These despositions were scheduled by the Colombian court for October 16 and 18, 2018, just

before the close of discovery, and only six weeks after the Court issued the Hague Request for

witness Raúl Emilio Hasbún Mendoza ("Raúl Hasbún").

On Friday, October 12, 2018, Chiquita called the Colombian court, learned that no

Colombian judge would preside over the depositions, and filed an emergency motion to quash.

DE 2152 The Court then ordered a Saturday-Sunday briefing schedule, and threatened

undersigned counsel with a sanction of attorneys fees, and the inadmissibility of any testimony

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taken, if the Court ruled against the plaintiffs. DE 2153. "Plaintiffs’ counsel is advised that if

Chiquita’s motion is granted, the Court will prohibit any testimony taken pursuant to the notices

of deposition in question to be used for any purpose in this proceeding. Furthermore, if the motion

is granted, the Court will award to Chiquita, as a sanction, attorney’s fees incurred in prosecuting

the motion, as well as attorney’s fees and expenses incurred byChiquita for having to travel to

Columbia and participate in what may later be determined to have been unauthorized depositions."

Id. The issue raised by Chiquita, whether a Colombian judge must preside over the depositions,

appears to be within the Court's discretion. Therefore, counsel had no choice but to cancel it.

We worked very hard, as did the Ministry of Foreign Relations and the Justice and Peace

Chamber of the Superior Court of Medellin, to get the depositions scheduled on time. The First

Hague Request1 for witness Raul Hasbun took over two months to process, and was ultimately

returned for lack of a valid address. This witness is one of the best-known AUC commanders and

has to live in hiding now that he is out of jail. We obtained the permission of the Superior Court

of Medellin to use that court as a notice address for the witness, see Oficio 313, and moved the

Court to send another Hague Request. The Court did so on September 7, 2018, with only six

weeks left before the close of discovery. This Hague Request was processed and forwarded to the

Superior Court of Medellin, which was able to arrange a courtroom for us on two weeks' notice,

but will apparently require 3-4 months if a Colombian judge is needed. 2 It was not possible to

1
The Court had also signed a Second Hague Request drafted by Plaintiffs Counsel Jack Scarola.
DE 1687. This request didn't include an address for Raul Hasbun either. Id. Mr. Scarola has
never disclosed what ever became of this Request. We presume that it was also returned for lack
of an address. That's why we captioned our amended Hague Request as the "Third Amended"
request for this witness.
2
Chiquita disputes the 3-4 month time estimate relayed by plaintiffs' counsel Marco Simons, DE
2166-2, referring to it as "double hearsay," De 2182 at 10 n 12, relying on the information it
received ex parte from the Colombian court, and refusing to jointly call the Colombian court with
us to reschedule it.
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meet the discovery deadline because of the Colombian court's schedule, combined with Chiquita's

insistance that a Colombian judge must take the testimony. If we want a Colombian judge to take

the testimony, then the only thing we can do is wait for the next available time on a judge's

calendar.

Chiquita also argues that "the only mechanism to administer an oath that will be

enforceable under penalty of perjury in Colombia is a formal hearing in which testimony is taken

before a presiding Colombian judge." DE 2182 at 4 n 5. Chiquita provides no legal support for

this assertion. A notary public can also swear in a witness. In fact, it is because court reporters

are notary publics that they can swear in witnesses. A Colombian judicial official, such as a

notario, could administer the oath, or a Colombian judge could, without presiding over it and

making rulings on objections and the scope of questioning - something that ordinarily doesn't

involve a judge in the U.S.3

The Court recently ordered undersigned counsel to resubmit a Rule 25 Motion to Substitute

Party for a deceased bellwether plaintiff, with "official translations" of sections of the Colombian

Civil and Procedural Codes in English. DE 2179. Counsel has not yet determined how to do that,

and would not be able to obtain an official translation of the Colombian code provisions that

authorize notarios to administer oaths in time to reply to this motion. However, the administration

3
The procedure deviates even more from the norm when one considers that the judge doing this
is from a different country with different rules for discovery and rules of evidence. In civil law
systems, witnesses testify in the investigative/discovery phase, but do not testify at trial, where the
parties merely summarize the evidence as in closing arguments at the end of trial.
Having said all this, we agree with Chiquita that the testimony should be taken by a Colombian
judge. The main reason is not the need for enforceable perjury sanctions, but to ensure that the
witness will testify in the first place. We're not seeking an "informal" interview of this witness.
Although he has stated several times his willingness to testify, we're not certain that he will, since
Mr. Hasbun is facing new charges in Colombia. His plea agreement requires him to tell the "whole
truth," so giving testimony in other proceedings may put his plea agreement at risk if he testifies
about something he has never mentioned before.
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of an oath to a witness is a procedural rather than substantive issue. There doesn't appear to be

anything in the Federal Rules of Civil Procedure about it. Federal Rule of Evidence 603 only

requires that before testifying, a witness must give an oath or affirmation to testify truthfully, which

must be in a form designed to impress that duty on the witness’s conscience. Id. There is a

provision under Florida state law, however, that allows foreign notaries to administer the oath:

92.50 Oaths, affidavits, and acknowledgments; who may take or administer; requirements.
-
***

(3) IN FOREIGN COUNTRIES. - Oaths, affidavits, and acknowledgments, required or

authorized by the laws of this state, may be taken or administered in any foreign country,
by or before any judge or justice of a court of last resort, any notary public of such foreign
country, any minister, consul general, charge d’affaires, or consul of the United States
resident in such country. The jurat, or certificate of proof or acknowledgment, shall be
authenticated by the signature and official seal of the officer or person taking or
administering the same; provided, however, when taken or administered by or before any
judge or justice of a court of last resort, the seal of such court may be affixed as the seal of
such judge or justice.

Fla. Stat. § 92.50 (2018) (emphasis added) The Court's Order, DE 1902, specified only that

Colombian witnesses must testify under oath subject to penalty of perjury under Colombian law.4

The Court also issued two special Orders governing the procedures to be used to take the testimony

of Raul Hasbun, neither of which specified whether a Colombian judge should preside over it. DE

1729, 1883. There is no authority to support Chiquita's claim that a Colombian judge must preside

over the depositions. Regardless, we agree with Chiquita that it would be preferable for a

4
In another Order granting Chiquita's Time-Sensitive Motion for Protective Order Concerning
Colombian Depositions, the Court held that "No deposition testimony may be taken “informally”
or “voluntarily” outside of this process as it is the only process thus far presented to the Court that
guarantees the testimony will be given under oath, subject to the penalty of perjury under
Colombian law.
"This directive is without prejudice to Plaintiffs demonstrating to the Court another mechanism
to swear witnesses under penalty of perjury enforceable in Colombia, in conjunction with an
advance request for leave of Court to take the deposition of a witness in Colombia willing to appear
without a summons from a Colombian court." DE 1902 at 2.
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Colombian judge to take the testimony, and think we should ask the Colombian court to put this

on a judge's calendar.

Factual Summary

The first Hague Convention Request for Raul Hasbun was made by an unopposed motion

filed on November 22, 2017, and signed by the Court on November 29, 2017. DE 1672, 1708-1.

Due to undersigned counsel's misunderstanding, this wasn't hand-delivered to the Colombian

Ministry of Foreign Affairs until March 16, 2018. For the next six weeks, we were unable to learn

anything about it by phone, until on May 30, 2018, I wrote a letter complaining that it was taking

too long for the Ministry of Foreign Affairs to process the Request, cc'ing the Colombian

Procuraduria, which is the internal affairs agency of the Colombian government. The Hague

Request was returned (rather than being executed) a month later, on June 25, 2018, since it didn't

specify the witness' address. DE 1980.

On July 17, 2018, I wrote to Colombian Magistrado Olimpo Castaño of the Justice and

Peace Chamber of the Superior Court of Medellin.5 DE 2016. I asked Magistrado Castaño if he

could provide me with this witness' address, since Mr. Hasbun had recently appeared in Apartadó

to testify in a Justice and Peace proceeding, and they must know how to contact him. On August

6, 2018, Magistrado Castaño responded with Official Letter 313, see DE 2040, in which the

Colombian court stated that it was required to keep this information confidential by law, but that

we could use that court's address to provide legal notices to Mr. Hasbun. Id.

We then amended the Hague Request to use the Colombian court's address as the address

for the witness. This was was signed by the Court on September 7, 2018, modifying the time to

5
This is the court that sentenced this witness to eight years imprisonment in Itagüi, for crimes
associated with the Colombian conflict. Mr. Hasbun's sentence was negotiated between the AUC
and the Colombian government when the AUC demobilized in 2005-2006.
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execute it to "as soon as possible" see DE 2091 at 14, and hand delivered to the Ministry of Foreign

Affairs the next day. On October 3, 2018, we received confirmation by telephone that the Request

had been forwarded to the Justice and Peace Chamber of the Superior Court of Medellin as request

number S-GAUC18-059688. On the same day, we sent an email to the Colombian court advising

them of the discovery cutoff date of October 18, 2018, and asking for two days: a full day to take

the testimony of Raul Hasbun, and another day for two half-day depostions of Ludy Rivas Borja

and a confidential fact witness to the bus massacre. The Colombian court then scheduled a

courtroom for us for two days, on less than two weeks' notice. After Chiquita filed its emergency

motion to quash and the court set a weekend schedule for briefing, on on October 12, 2018 we sent

an email to the Colombian court canceling the deposition, and Notices of Cancelation to counsel

for all parties.

ARGUMENT

I. The Plaintiffs's didn't neglect this issue, and any delay was excusable.

Chiquita argues that since the discovery cutoff has now passed, the Plaintiffs must not only

show good cause to reschedule the deposition, but also excusable neglect. See Chiquita's Response

in Opposition, DE 2182 at 7, citing Francis v. US Airways, Inc., No. 15-cv-80557-BLOOM/Valle,

2015 U.S. Dist. LEXIS 181095, at *5 (S.D. Fla. Dec. 15, 2015). Here, there was no neglect.

Canceling the deposition was excusable because the Court threatened to sanction plaintiffs if the

deposition went forward and the court later determined that it was unauthorized. DE 2153.

Excusable neglect comprises both a demonstration of good cause by the moving party, and

a reasonable basis for noncompliance within the specified time period. Rivera-Almodovar v.

Instituto Socioeconomico Comunitario, 730 F.3d 23, 26 (1st Cir. 21013) ("excusable neglect" is a

term of art that encompasses inadvertence, mistake or carelessness, as well as intervening

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circumstances beyond party's control); Kimberg v. Univ. of Scranton, 411 Fed. Appx. 473, 477

(3rd Cir. 2010) ("At bottom, excusable neglect requires 'a demonstration of good faith on the part

of the party seeking an enlargement and some reasonable basis for noncompliance within the time

specified in the rules.'"); Fernandes v. Craine, 538 Fed. Appx. 274, 275-76 (4th Cir. 2013).

The Supreme Court set forth factors to evaluate excusable neglect in the context of a

bankruptcy proceeding in Pioneer Inv. Services Co. v. Brunswuick Assocs. Ltd. P'ship, 507 U.S.

380, 395 (1993). "Congress plainly contemplated that the courts would be permitted, where

appropriate, to accept late filings caused by inadvertance, mistake, or carelessness, as well as by

intervening circumstances beyond the party's control..." Id. at 388. See Kirkland v. Guardian Life

Ins. Co. of Am., 352 Fed. Appx. 293, 296-297 (11th Cir. 2009) (per curiam) (unpublished)

(excusable neglect where delay was short and had no apparent effect on proceedings, and late filing

was not intentional or due to bad faith); cf. Ashmore v. Sec'y, DOT, 503 Fed. Appx. 693, 685-686

(11th Cir., 2013) (excusable neglect not found where defendant would have been prejudiced by

additional discovery because it had already filed its motion for summary judgment, interest in

judicial economy weighed against the motion, and the movant presented no valid reason for

considerable delay)

Here, the delay was caused the Defendant, who insist that the testimony must be taken by

a Colombian judge, but object that the Colombian court requires an additional 3-4 months to

schedule it. The problem could be solved by a phone call, if the Defendant would stipulate that a

Florida court reporter or a Colombian judicial official such as a notario administer the oath. The

Defendant doesn't dispute that no further Hague Requests are necessary, whether the deposition is

taken with or without a Colombian judge.

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The dispositive motions deadline is on February 15, 2019. This means it's unlikely these

depositions will be completed in time for Chiquita's Motion for Summary Judgment. However,

Raul Hasbun's testimony will primarily be evidence that helps the plaintiffs to oppose summary

judgment. This witness was not only the AUC's top local commander in Apartadó, the "brain of

the para-economy" who designed the system of convivir front companies to funnel money to the

AUC, but also one of Chiquita's main banana suppliers in Colombia. He was also present in the

meeting with Chiquita employee Charles Kaiser, and disputes that Carlos Castaño made an

"unspoken threat." According to Raul Hasbun, the banana growers got together and supported the

AUC in self-defense. 6 It's hard to imagine how this witness' testimony will support Chiquita's

motion for summary judgment. The Plaintiffs will be prejudiced more, if they have to argue their

opposition to summary judgment without this important testimony. Finally, any prejudice

Chiquita suffers will be solely due to its insistance on having the deposition taken by a Colombian

judge.

6
Chiquita still argues the affirmative defense of extortion or duress, which was eliminated at the
motion in limine stage of the Julin case. The Court's ruling in Julin on the duress defense was
primarily based on the lack of specificity of any extortion threats received, and the remoteness of
the incidents cited by Chiquita as threats to their employees. The incident relied on by Chiquita's
employees in their testimony to the SEC was the massacre of a dozen of Chiquita's employees who
were taken off of a bus and shot. Chiquita misrepresents the nature of this incident, which was
actually a reprisal against them for switching sides. One of the witnesses subject to the instant
motion is the "bus massacre" witness.
If the Court is going to reconsider the duress issue, again at the motion in limine stage, this may
be after the instant cases have been remanded back to Washington, D.C. The issue would be before
both courts at once. When the Court denied Plaintiffs Does 1-976's Motion for Remand without
prejudice, it also ordered that the motion could be made again after the dispositive motions had
been decided. In the same Order, the Court held that its previous rulings on motions in limine in
Julin, including the extortion/duress defense, would not apply to the ATS cases. Id.
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II. A court in Apartado just scheduled the deposition of the confidential bus massacre
witness for the week after next.

On November 8, 2018, I received an email notice from Damary Cardona Ceballos of the

Juzgado Primero Promiscuo Municipal of Apartado-Antioquia, advising me that the deposition of

the confidential witness to the bus massacre had been scheduled for about two weeks later in

Apartado. See Exhibit 1, redacted notice, attached hereto. I forwarded the communication to

counsel for the Defendant and to other plaintiffs' counsel the same day I received it.

I have not sent any notice of this deposition to other counsel, nor have I contacted the

Colombian court ex parte to cancel it, or responded to the notice at all. I plan to contact them to

cancel it if I do not receive an instruction otherwise from the Court. This notice, like the notice

filed by Chiquita at DE 2152-3 as an example of a properly-noticed deposition, doesn't say whether

a Colombian judge will preside over it.

Conclusion

For the foregoing reasons, the Court should GRANT Plaintiffs' Motion to Reschedule the

Depositions of these three witnesses. The Court should order that a Colombian judge must preside

over the testimony, and that the deposition will occur whenever it is possible according to the

Colombian court's schedule. The Court should also Order counsel to contact the court in Apartado,

which separately scheduled the deposition of the bus massacre witness for next week, to ask

whether it may be rescheduled for a later date.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Counsel for Plaintiffs
P.O. Box 21840
Washington, DC 20009
(202) 431-6986

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fax: n/a
paulwolf@yahoo.com

November 12, 2018

Certificate of Service

I hereby certify that on this 12th day of November, 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

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