Case 0:08-md-01916-KAM Document 928 Entered on FLSD Docket 11/08/2015 Page 1 of 8

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
11-80405-CIV-MARRA
_____________________________________/

Plaintiff Does 1-254 Motion to Participate in the Hague Convention

Request to the Government of Colombia for Evidence of Financing
of the Fuerzas Armadas Revolucionarias de Colombia (FARC)
COME NOW the Plaintiffs, Does 1-254, by and through undersigned counsel and
pursuant to F.R.C.P. 26 (d), to move the Court for an order permitting Does 1-254 to
receive copies of the same discovery produced by the Government of Colombia to
Plaintiffs Julin, Pescatore, Sparrow, et al, in response to their proposed request under the
Hague Convention (hereinafter "ATA Hague Request").

R 927-1.

The Defendant

Chiquita Brands and counsel for the ATA plaintiffs were asked over the weekend
whether they would consent to or oppose this motion, but have not yet not replied.
Undersigned counsel is filing this motion now since he is concerned that the Court may
quickly resolve what appears to be an uncontested issue.

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FACTUAL SUMMARY
At the beginning of this litigation, by agreement of the parties, the Court
suspended all discovery until resolution of the defendants motions to dismiss the
plaintiffs initial complaints.

R. 66. Under the terms of the Courts original Case

Management Order, R. 141, the discovery stay remains until resolution of Chiquitas
renewed motion to dismiss Colombian tort claims on forum non conveniens grounds, and
the individual defendants motions to dismiss under Rule 12 (b) (6). R. 735, 741. Due to
the pendency of these motions, there has been no Rule 26(f) conference.
On November 6, 2015, counsel for Defendant Chiquita Brands and for the ATA
Plaintiffs jointly moved the Court to issue a Hague Convention request to 15 Colombian
national and local agencies for documents related to the financing and extortive practices
of the Fuerzas Armadas Revolucionarias de Colombia, or FARC. Unlike the "ATS"
cases, the ATA plaintiffs are engaged in discovery at present, including the instant
request to the Colombian government. The Does 1-254 Plaintiffs seek only copies of
what is produced by the Colombian government.
ARGUMENT
1.

There is good cause to grant Plaintiffs' Motion for Expedited Discovery

Under Rule 26 (d) (1), a party may not seek discovery from any source before the

parties have met and conferred as required by Fed. R. Civ. P. 26 (f). The rule is subject
to certain exceptions, including a court order permitting discovery. In the absence of
controlling 11th Circuit precedent, the Court has adopted the "good cause" or
"reasonableness" standard for evaluating requests for expedited discovery, rejecting the
preliminary injunction -style test of Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982). See

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Order Granting Plaintiffs Emergency Motion to Take Depositions to Perpetuate

Testimony of Roldan Perez, Mangones Lugo and Rendon Herrera, R. 227 at 6-8.1 That
is, expedited discovery is allowed "when the need for it outweighs the prejudice to the
responding party." Id. at 6; Edgenet, Inc. v. Home Depot USA, Inc., 259 F.R.D. 385
(E.D. Wis. 2009). This is the law of the case. The same test should be applied to the
instant Motion. The Court also noted that in assessing good cause, it should consider
whether the subject matter of the request is narrowly tailored in scope. Id. at 7.
a.

Does 1-254 need substantially the same evidence as the ATA Plaintiffs.

If the material is relevant to the claims and defenses of the Julin et al plaintiffs,
then it must also be relevant to the cases of Does 1-254, who were also killed by the
FARC during the same time period, since the claims and defenses are based on the same
facts and sound identical when references to the jurisdictional statutes are removed. See
Order Granting in Part and Denying in Part Defendants Motion to Dismiss New Actions,
R. 513. The Court has not yet decided whether to dismiss the Doe 1-254 Plaintiffs
claims, which are based on diversity jurisdiction.
Does 1-254 are the legal heirs of persons killed by the FARC in Urab during the
time period 1987-1999 and need substantially the same evidence as the ATA plaintiffs,
who were also killed by the FARC. Although the ATA and ATS plaintiffs rely on
different jurisdictional bases,2 the two groups of plaintiffs are trying to prove the same set

The Court noted that good cause has been found where there is a showing of irreparable harm that can be
addressed by limited, expedited discovery, citing JP Morgan Chase Bank N.A. v. Reijtenbagh, 615 F. Supp.
2d 278 (S.D.N.Y. 2009); Ayyash, 233 F.R.D. at 326-27; where failing to allow expedited discovery would
substantially impact the progress of the case on the courts docket, citing Sheridan v. Oak St. Mortgage,
LLC, 244 F.R.D. 520, 522 (E.D. Wis. 2007), or where there is a need to preserve evidence that may be
destroyed before it can be obtained by ordinary discovery, citing Monsanto Co. v. Woods, 250 F.R.D. 411,
413 (E.D. Mo. 2008). Id. at 7.
2
The ATA is a statute protecting U.S. citizens from terrorist attacks abroad. The ATS is a statute granting
jurisdiction for violations of international law that touch and concern the territory of the U.S. Now, the

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of common facts. That is, Defendant Chiquita's relationship with the FARC during the
relevant time period,3 including payments made to the FARC, the purpose of the
payments, whether Colombian law enforcement authorities knew of the payments and
considered them to be legal or justifiable, and evidence relevant to Chiquita's defense of
duress. This is all relevant to determining the Defendant's mental state or mens rea, and
knowledge of wrongdoing, regardless of whether the standard is intent, knowledge, or
negligence. It is also relevant to the Defendant's defense of duress. See, e,g., R-927-1 at
6. (evidence of "the FARCs involvement in extortion") If the Colombian law claims of
Does 1-254 are not dismissed for forum non conveniens, see Defendant's renewed motion
to dismiss, R. 741, Does 1-254 would request substantially the same discovery as is
sought by the ATA Hague Request.
Section 7 of the ATA Hague Request, which sets forth the claims and defenses, is
an equally accurate description of Does 1-254's claims, and need not be modified at all.
It says:
7.
a. Nature of the proceedings (article 3(c))
Civil tort suit for damages.
b. Summary of complaint
Plaintiffs allege that Chiquita Brands International, Inc. (Chiquita)
provided material support4 to the Fuerzas Armadas Revolucionarias de
Colombia (FARC) in violation of U.S. law and should be held civilly
Court is considering whether their diversity jurisdiction claims should be dismissed for forum non
conveniens and statute of limitations reasons. We still refer to them as "ATS" cases, although this is no
longer accurate.
3
See R 927-1 at 7. Does 1-254 are suing Defendant Chiquita Brands for incidents occurring between
1987-1999. The ATA Hague Requests for FARC financing cover a time period of 1985-2009. The ATA
Hague Requests for other categories of information specific to the Uraba region cover the period 19891999.
4
Aiding and abetting requires "substantial assistance" which should be indistinguishable from the "material
support" standard in the ATA.

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liable for the FARCs kidnapping and killing of certain of Plaintiffs

family members.
c. Summary of defenses
Defendant contends that it is not liable for plaintiffs injuries because,
inter alia, the payments that give rise to Plaintiffs claims were extorted
by the FARC, Plaintiffs injuries were not by reason of Chiquitas acts,
Plaintiffs have not stated a claim upon which relief can be granted, and
Plaintiffs claims are time-barred.
R. 927-1 at 5. The only difference is that while the ATA provides a jurisdictional basis
for the claims of U.S. citizens, the Colombian plaintiffs rely on the diversity jurisdiction
statute, 28 U.S.C. 1332. The facts supporting the claims and defenses will be the same.
The Doe 1-254 Plaintiffs' need for the evidence should already be clear. Chiquita
claims to have been extorted, and Chiquita's payments to the FARC are not known to the
same degree of detail as its payments to the AUC. If anything, the claims of Does 1-254
should be stronger than those of the ATA plaintiffs, since they are geographically related
to Chiquita's business operations in Uraba, which is relevant to causation or forseeability.
If the ATA Plaintiffs have a substantial need for this evidence from the Colombian
government, so do Does 1-254.
b.

There is no prejudice to either Chiquita Brands or to the Government

of Colombia to produce another copy of the discovery.

Does 1-254 are simply asking for a copy of whatever documents the Colombian
government produces. The only burden to anyone will be to produce another set of discs.
Although we believe the ATA Hague Requests to be overly broad, overly focused on
classified information, and unmanageable by a Colombian court, we don't want to disturb
whatever negotiations have occurrred between Chiquita and the ATA plaintiffs, and will

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be glad to receive whatever discovery the other parties have agreed to. Our request is not
burdensome at all.
As explained infra in c, the Hague Convention request itself is enormously
burdensome. If a Colombian judge somehow agrees to issue all these subpeonas, the
exercise is unlikely to ever be repeated. Since the plaintiffs may only get one bite at the
apple, in terms of securing the cooperation of the Colombian judiciary, they will be
prejudiced if they are not allowed to participate in it, since it will likely result in the loss
of any opportunity to make reasonable requests of the Colombian government. They will
also suffer irreparable harm, although they need not meet the standard for an injunction.
c.

The discovery sought from the Colombian government is extremely

burdensome and should not be requested twice.

The ATA Plaintiffs and the Defendant jointly ask the Court to request, through
diplomatic channels, an extremely wide-ranging investigation into what is one of the
most sensitive national security issues in Colombia - the illegal financing of the FARC,
which is considered by both Colombia and the United States to be a terrorist group. The
15 agencies to be subpeona'ed include the Colombian Supreme Court, the Attorney
General, the Colombian National Police, the Minstry of Defense, and others which taken
together include most of the national government of Colombia. The State of Antioquia
and Apartado Mayor's office are also on the list. See ATS Hague Request, R 927-1 at 910. It's not reasonable to ask the Colombian government to go through this twice, if at
all, and particularly due to the nature of the information requested - the funding of a
terrorist group. Anyone funding the FARC is likely to be, or at least should be, the target
of a law enforcement investigation and evidence about this is almost certainly classified,

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or at a minimum, subject to whatever privileges exist in Colombia for law enforcement

investigations.
Conclusion
The Court should grant Doe 1-254's narrowly-tailored request to receive copies of
whatever discovery is produced by the Government of Colombia in response to the ATA
Plaintifffs' Hague Convention request. Good cause has been shown, since the Colombian
government is unlikely to comply with a request like this twice.

The information

requested is just as relevant to the cases of Does 1-254 as it is to those of the ATS
Plaintiffs. The prejudice to either the Government of Colombia or to the other parties in
the case is minimal, since Does 1-254 are simply asking for copies of whatever the
Colombian government actually produces.
Respectfully submittted,
/s/ Paul Wolf
_____________________
Paul Wolf, CO Bar #42107
Attorney for Does 1-254
P.O. Box 46213
Denver, CO 80201
(202) 431-6986
fax: n/a
paulwolf@yahoo.com

November 8, 2015
Certificate of Service
I hereby certify that, on the 8th of November, 2015, I filed the foregoing
document with the Court's ECF system, which will send electronic copies to all parties
entitled to receive such notice. I further certify that on the same day, I sent a copy of the
foregoing document by email to the following individuals:

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John E. Hall
Shankar Duraiswamy
James Garland
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
Telephone: (202) 662-6000
Fax: (202) 662-6291
jhall@cov.com
jgarland@cov.com
sduraiswamy@cov.com
Counsel for Chiquita Brands International, Inc.
Kristi Stahnke McGregor
kmcgregor@milberg.com
MILBERG LLP
One Pennsylvania Plaza
New York, NY 10119
(212) 594-5300
Counsel for Pescatore and Sparrow Plaintiffs
Steven M. Steingard
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
(215) 238-1700
ssteingard@kohnswift.com
Counsel for Julin Plaintiffs

/s/ Paul Wolf

___________
Paul Wolf