Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 1 of 16

FILED

2015 Dec-17 PM 08:16

U.S. DISTRICT COURT
N.D. OF ALABAMA

Exhibit 3

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TABLE OF CONTENTS
Page

1 I.

INTRODUCTION .................................................................................................................... 1

2 II.

PLAINTIFFS PAYMENT REQUESTS, OFFERS, NEGOTIATIONS AND

CONTINUING MISREPRESENTATIONS ............................................................................ 2

3
A.

Raul Hasbn Negotiations, New Aspects Revealed ..................................................... 3

B.

The False Expert Retention Representations ............................................................. 4

C.

Continuing Misrepresentations Regarding Witness Payments and Their

Purpose .......................................................................................................................... 5

4
5
6
7 III.

PRIVILEGE LOG ENTRIES INVOLVING THIRD PARTIES THAT CANNOT

RECEIVE WORK PRODUCT PROTECTION ....................................................................... 7

8
IV.

ARGUMENT ............................................................................................................................ 8

V.

CONCLUSION ....................................................................................................................... 10

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DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO
PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND
THIRD PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 4 of 16

TABLE OF AUTHORITIES
Page(s)

1 Cases
2 BP Alaska Expl., Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1254..

3 Coito v. Superior Court (2012) 54 Cal.4th 480, 488

4 OXY Res. California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 891 .

5
Statutes
6
Code Civ. Proc. 2018.030 subd. (a) ...

Code Civ. Proc. 2018.030 subd. (b) ..

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DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO
PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND
THIRD PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 5 of 16

I.

INTRODUCTION

Dole Food files this motion to compel the production of documents from Plaintiffs privilege

3 log in advance of the depositions of Plaintiffs jailed, terrorist witnesses, which begin again on Janu4 ary 22, 2016. Separate from the entries related to Raul Hasbn that this Court addressed on an ex
5 parte basis in advance of Hasbns December 4 deposition, Plaintiffs have 196 more entries on their
6 privilege log described as: Internal document related to offer of, request for, or prospective or actual
7 payment to current or former AUC member, most of which do not identify a specific AUC member,
8 but others which identify Jose Gregorio Mangones Lugo, who will provide testimony on January 28.
9 (Appendix A.)1 Plaintiffs log also includes at least 332 communications that obviously involve third
10 parties to whom no privilege can extend, for example, entry 1206, a communication from Terry Col11 lingworth to Michael.Taxay@usdoj.gov. (Appx. B.)2 Dole Food notified Plaintiffs of these issues on
12 November 24 and December 6. (Ex. 1, 2.) Plaintiffs have represented that they will amend these de13 scriptions and provide a more detailed log by December 24th. (Ex. 3.) Plaintiffs have refused, how14 ever, to produce (1.) the payment-related documents on the log consistent with the Courts ruling on
15 the Hasbn ex parte application or (2.) their communications with third parties. In other words, de16 spite this Courts prior rulings and the rapidly approaching depositions in Colombia, Plaintiffs are
17 refusing to produce internal documents that discuss, relate or refer to negotiations with witnesses
18 regarding offers, demands or payments and related documents. They are also withholding documents
19 by claiming work product protection to communications with third parties that cannot receive the
20 benefit of such protection. Consequently, Dole Food hereby requests that, consistent with its prior
21 order, the Court order Plaintiffs to produce the subject documents forthwith.
This Court has already held that documents concerning payments to witnesses should be

22

23 produced since the court has determined that denial of discovery will unfairly prejudice the party
24 seeking discovery in preparing that partys claim or defense or will result in injustice. (Ex. 4.)
25

Appendix A is a true and correct copy of relevant entries from Plaintiffs privilege log pertaining to payment requests,

26 offers, and/or negotiations, sorted chronologically. Plaintiffs have designated their privilege log as confidential pursuant
27
28

to the Stipulated Protective Order and therefore, this Appendix has been filed under seal.
Appendix B is a true and correct copy of relevant entries from Plaintiffs privilege log pertaining to communications
with third parties, sorted chronologically. Plaintiffs have designated their privilege log as confidential pursuant to the
Stipulated Protective Order and therefore, this Appendix has been filed under seal.

1
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO
PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND
THIRD PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 6 of 16

(emphasis added.) And yet Plaintiffs refusal to produce probative payment information continues.

Like the entries pertaining to Raul Hasbn addressed in Dole Foods ex parte application, nearly all

of these documents appear to be email exchanges, and span the time period from August 2009 to May

2014. Plaintiffs description of these payment-related documents is both improperly vague, especial-

ly because of its repeated use of the term or, and fails to establish that any of these documents are

work product. Indeed, the description of the documents on the privilege log contains no reference

to any work product of any kind.

These documents are plainly central to Plaintiffs fabricated case and Dole Foods defense

against the extreme accusations Plaintiffs have asserted here. Documents relating to Plaintiffs coun-

10

sels negotiations with, demands from, offers to, and any payments to, or contingent agreements with,

11

AUC members and/or their agents are crucial to Dole Foods ability to meaningfully depose the re-

12

maining Letters Rogatory deponents in late January and February 2016. Because of the restrictive

13

procedures involved in these depositions, it is likely that these depositions will be Dole Foods only

14

chance to cross-examine these AUC members, and their deposition testimony concerning Plaintiffs

15

payments will be their only potential trial testimony.

16

In view of these exigencies, Dole Food respectfully requests that the Court grant this motion

17

to compel in full and either order Plaintiffs to produce the documents identified in Appendix A and

18

B, or conduct an in camera review.

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II.

PLAINTIFFS PAYMENT REQUESTS, OFFERS, NEGOTIATIONS AND

CONTINUING MISREPRESENTATIONS

Plaintiffs history of payment requests, offers, and negotiations, to third-party witnesses including Raul Hasbn, a former AUC terrorist, and Jarley Maya Snchez, Hasbns counsel and agent,
are well documented in Dole Foods ex parte application, Sanctions Motion, and previous Motions to
Compel. The documents that this Court ordered Plaintiffs to produce on December 2, however, reveal further insight into Plaintiffs coordinated scheme of payment requests, offers to and negotiations with witnesses. The content of those documents underscores the need to require the production
of analogous documents that they continue to withhold. They also reveal further misrepresentations
to this Court and to other courts regarding witness payments.
2
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD
PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

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A.

Raul Hasbn Negotiations, New Aspects Revealed

Prior to the production of payment related documents in connection with the Hasbn ex parte

application, Plaintiffs counsel told this Court that Dole Food was conflating their negotiations with

Raul Hasbn with those with Jarley Maya Sanchez. (Ex. 5 at 67:5-70:22.) The most recently pro-

duced documents confirm anew however that Maya Sanchez was, without question, acting on behalf

of Hasbn. They likewise confirm that it was Hasbn himself demanding upwards of $200,000 to

provide information and a statement to Plaintiffs counsel. Mr. Collingsworth himself authored e-

mails stating:
(Ex. 6.) The new documents

9
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also revealed for the first time that Ivan Otero was also involved in the Maya Sanchez/Hasbn nego-

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tiations. For instance, Document 1585 is a June 15, 2012 memo from Lorraine Leete to Terry Col-

12

lingsworth, in which she describes her meeting with Ivan Otero. (Ex. 7.) It discusses a link between

13

Otero and the payment negotiations with Jarley Maya Sanchez and Raul Hasbn:

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15
16

(Id.) Although Plaintiffs represented to this Court that they had made full disclosure of facts re-

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garding their Hasbn negotiations, Mr. Oteros involvement in negotiation conversations with Mr.

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Maya Sanchez was never disclosed to this Court or to Dole Food. Moreover, although Plaintiffs

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continue to claim that no payments were made to Dole related witnesses, another of the recently pro-

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duced documents states:

(Ex. 8.)

When confronted with these e-mails, which document the negotiations between himself and

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Plaintiffs counsel, Hasbn gave perjurious testimony at his December 4 deposition, claiming that he

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had no knowledge of any negotiations and contending that he had never made any demands for

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$200,000 or otherwise. (Ex. 9 at 173:8-174:13; 176:4-177:84; 182:5-145; 192:6-186.) Hasbn even

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Q: Did you tell Mr. Sanchez to tell Mr. Collingsworth that you wanted $200,000, plus a percentage of what the victims would recover in this case to work with him? A: No, thats not the case.
4
Q: Did you tell Jarley Maya [Sanchez] to tell Mr. Collingsworth that you wanted $200,000 plus a percentage? A: No,
no, no.
5
Q: Have you ever received any money from Ivan Otero? A: No. I dont know who he is.
6
Q: Are you invoking your right against self-incrimination as to the discussion of any financial negotiations between
yourself and Mr. Collingsworth? A: Yes, I know that. And I do invoke that, but not because I want to talk. But be-

3
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD
PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

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rejected Mr. Collingsworths leading question regarding their supposed negotiations for him to serve

as an expert, a claim Plaintiffs counsel made at the October 20 hearing. (Id. at 108:15-109:8; Ex.

5 at 67:17-24 (We have not hidden that there were discussions and negotiations for Mr. Hasbun to

be an expert in our case. . . . we have not failed to disclose . . . that there were, in fact, negotiaitons as

to whether he was going to be an expert, and an expert specifically on the structure of the AUC, fi-

nancing of the AUC.)7 Hasbn further claimed that he had never discussed Dole Food with Plain-

tiffs counsel prior to the date of his deposition, again despite Conrad & Scherer confirming in inter-

nal documents that such discussions took place. (Ex. 9 at 119:19-22; see Doles Ex Parte App. at 4-5

(Nov. 25, 2015).)8 And when confronted with his 2008 Justice and Peace testimony, which predates

10

his first meeting with Mr. Collingsworth, Hasbn repeatedly exercised his right against self-

11

incrimination and refused to respond to direct questions regarding the accuracy of his prior testimony.

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(Id. at 155:19-156:149; 207:22-208:510.) Though ultimately, despite uncreditable claims of meetings

13

with a nameless man who he allegedly believed represented Dole Food, when asked if Hasbn ever

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saw any proof that this man represented Dole Food, he admitted: No, I have no proof. (Id. at

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215:5-20.)

16

B.

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In the cases of both Raul Hasbn and Pedro Jos Diazgranados Lpez, in an attempt to render

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payments somehow legitimate, Plaintiffs counsel has repeatedly represented falsely to this Court that

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they were negotiating with these witnesses to provide expert testimony. (See, e.g., Ex. 5 at 67:17-

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24; see also Plfs Opp. to Doles Mot. Challenging Confidentiality Designation of Consulting Expert

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(July 22, 2015).) The ex parte Hasbn production again shows that these representations were false.

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Although the Hasbn negotiations are discussed in more detail in the new production, the word ex-

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The False Expert Retention Representations

cause Ive told you 10,000 times that hasnt happened. I have not been offered anything, Ive not received any, nothing of
that.
7
Q [from Mr. Collingsworth]: Are you aware that I had discussions with Jarley Maya Sanchez, about hiring you as an
expert witness? A: I dont knowI dont have any knowledge that that they wanted to hire me for something of the
matter.
8
Q: So you dont recall talking to Mr. Collingsworth about Dole before today. Do I have that right? A: Thats correct.
9
Q: [I]s it your testimony that [] today the testimony you gave in [a 2008 Justice and Peace proceeding) was not truthful when you gave it? A: Counsel, Im not going to answer that question. Q: Are you invoking your right against selfincrimination? A: Correct.
10
Q: Simply asking you if that [Justice and Peace] testimony was truthful when you gave it in 2008? A: No, Im not
going to answer, not that. Q: Are you [] invoking your right against self-incrimination? A: Yes.

4
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD
PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 9 of 16

pert is never used. Likewise, Document 2693 is an early November 2010 email which confirms

what the California Court of Appeal and this Court have already held: Pedro Jos Diazgranados

Lpez, referred to as Pedro, is a fact witness whom Plaintiffs paid substantial sums of money for

purportedly factual information and for a sworn declaration. (Ex. 6); Cal. Ct. App. Order Denying

Plfs Pet. for Writ of Mandate (July 24, 2015)).

C.

Continuing Misrepresentations Regarding Witness Payments and Their Purpose

Throughout these proceedings, Plaintiffs counsel has consistently asserted that witness pay-

ments were made and/or discussed for some purpose other than for testimony. (Ex. 5 at 57:27-58:1

[payments were being made for security for the families of these witnesses, not to pay the witnesses

10

directly for their testimony]; Ex. 10 at 2-4 [arguing that security payments were necessary and

11

proper to five Drummond witnesses, a fact that was later discredited in Judge Proctors Order]; see

12

also Ex. 11 at 36:20-25.) The recently produced documents, however, expressly reference Hasbn

13

making demands

14

referred to as Yuca or Y, refusing to sign a declaration until he receives payments,

15

of $2,200 monthly. (Ex. 7).

16

(Ex. 12), and other witnesses, including one

Equally shocking, it appears that Plaintiffs counsel may still be lying to this Court regarding

17

the number of AUC witnesses who Conrad & Scherer paid. The Drummond Court recently found

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that their prior misrepresentations were made across multiple matters: These representations [made

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across all three cases] involve the same witnesses and conduct that [are] at issue in this case. . . .

20

Here, had Defendants revealed witness payments in either of these other cases [Dole or Wichmann],

21

the misrepresentations in this case would have also come to light. (Ex 13 at 48.). The same is true

22

of their continuing misrepresentations.

23

Based on the Hasbn ex parte documents, it appears that Conrad & Scherer and Mr. Col-

24

lingsworth lied to both this Court and the Drummond Court when representing that they had corrected

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their prior misrepresentation that only 3 witnesses had been paid. Specifically, Plaintiffs counsel

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originally stated that only following witnesses has been paid (and that they were only relevant to the

27

Drummond matter): Jhon Jairo Esquivel Cuadrado (El Tigre), Alcides Manuel Mattos Tabares

28

(El Samario), and Jaime Maya Blanco. (Ex. 14.) Plaintiffs counsel belatedly corrected this mis5
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD
PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

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representation and admitted that 3 additional witnesses had been paid: Jairo Jesus Charris Castro (El

Viejo Miguel), Jose Gelvez Albarracin (El Canoso), Libra Duarte (Paisa; Halcon). (Id.) With

this correction, Plaintiffs claimed that all witness payments in AUC matters had been disclosed. (Ex.

14; Ex. 11 at 109:20-110:2.) This representation appears to be false.

One of the witnesses against Drummond that Conrad & Scherer and Mr. Collingsworth

claimed has not received any witness protective assistance on a slide presented during the crime-

fraud hearing held by the Drummond court on September 1-3, 2015, was Oscar David Perez Bertel

AKA Yuca. (Ex. 14.) Contrary to this representation, Document 1585, which this Court ordered

produced from Plaintiffs privilege log, a June 15, 2012 memo from Lorraine Leete to Terry Col-

10

lingsworth, with the subject line, 6/15/2012 Meeting with Ivan Notes, conveys that Y or Yuca

11

would not sign a declaration

12

weeks of Leete sending Collingsworth this memo, Conrad & Scherer increased its monthly payments

13

to Ivan Otero by exactly $2,200, from $2,700 to $4,900. (Exs. 18, 19, 20.) Based on information

14

available to Dole Food, this $4,900 monthly payment to Otero appears to have continued through at

15

least May of 2014. (See Ex. 19.) Plaintiffs counsel lying to the Drummond court about witness

16

payments made through intermediaries is consistent with the original lies told about the other wit-

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nesses they were paying through Otero.

(Ex. 7.) Within

18

As can be seen, the Hasbn documents that Plaintiffs attempted to withhold as work product

19

were probative on key issues, including witness tampering and bribery. By delaying their document

20

and log productions for well over a year after Dole Food propounded its discovery requests, and just

21

a few weeks before the Letters Rogatory depositions are set to begin again, Plaintiffs have left Dole

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Food no choice but to file this motion to resolve this dispute prior to the depositions upcoming in

23

January and early February. Dole Food has met and conferred with Plaintiffs in good faith to resolve

24

these concerns without the Courts intervention, but was unable to do so. See Champion Decl. 2-

25

4, Exs. 1-3. In order to prevent a fundamentally unfair proceeding, Plaintiffs should be ordered to

26

produce all the documents identified on their log that relate to offers, requests and potential or actual

27

payments to any AUC members, former members or other witnesses.

28
6
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD
PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

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III.

PRIVILEGE LOG ENTRIES INVOLVING THIRD PARTIES THAT CANNOT

RECEIVE WORK PRODUCT PROTECTION
Plaintiffs log also appears to contain hundreds of communications with third parties with

3
whom there can be no work product protection. A complete list of these entries appears at Appendix
4
B. Some of these entries reflect communications with government officials, journalists, agents for
5
these third-party paramilitary witnesses, and other third parties with whom there cannot be any claim
6
of confidentiality or privilege. For example, entry 4817 is a communication from Terry Col7
lingsworth to cliffstammerman@mail.house.gov which claims work product protection. (See
8
also entries 4817, 4818, 4821, 4822, 4968, 4969.) Cliff Stammerman appears to be a staff member at
9

the Congressional Liaison Division.11 These communications are unprotected and must be produced.

10
The same is true of communications involving Segundo Mercado-Llorens, who appears to be a lob11

byist12 (e.g., entries 4792, 4793, 4794, 4821, 4822, 4681, 4968, 4969), government officials including

12
Elizabeth Poteat, Paul Laymon, and Michael Taxay of the Department of Justice. (E.g., entries 1216,
13
1218, 1220, 1260, 3742-3745, 4832, 4833, 4897.) There are also numerous entries involving Ivan
14
Otero, an attorney for some of the third-party paramilitary witnessesthese cannot be protected.
15
(E.g., entries 2314, 2449, 2450, 2463, 2464, 2466, 2468, 2491, 2492, 2494, 2511, 2514, 3180; cf. Ex.
16
16.) Entries including 2123-2125 are correspondence with a journalist at the Miami Herald. None
17
of these entries can be privileged and these documents should be promptly produced.
18
There are many other entries for which Plaintiffs have not provided sufficient information to
19
evaluate their claim of work product protection. For instance, Plaintiffs provide no information to
20
permit Dole Food to evaluate their claim of work product protection over communications with per21
sons at Earth Rights (earthrights.org) (e.g., entries 94, 95, 1622-1625), the International Labor
22
Rights Fund (Ilrf.org) (e.g., entries 695, 1126, 1127, 1209, 1211, 1212, 1213), the United Steel
23
Workers (e.g., entries 1194-1197, 1203-1205), or individuals such as Genny Fox (e.g., entries 152324
24), Camila A. Romero (e.g., entries 1157, 1164, 1165, 1174, 1211-1213),
25
rafaparedesc@gmail.com (see, e.g., entries 1094-1102), Katie Hoffman
26
27
28

11

See https://www.usaid.gov/who-we-are/organization/bureaus/bureau-legislative-and-public-affairs/congressionalliaison-division.
12
See https://www.linkedin.com/in/segundomercadollorens.

7
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD
PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 12 of 16

(oneisamovement@gmail.com) (e.g., entry 1628), Emily Goldman (leenchy@yahoo.com) (e.g., en-

tries 1671-73), jameskgreen@bellsouth.net (e.g., entries 1722, 1746, 1747, 1755, 3046), or

stopkillercoke@aol.com, (e.g., entries 1207 and 4834). Their log contains numerous other uniden-

tified individual and email addresses too numerous to mention herethe documents too should be

promptly produced.

6
7

IV.

ARGUMENT

This Court has repeatedly held that the witness pay issue has come to light and is ex-

tremely relevant to the claims and defenses in this action. (Ex. 15 at 32:5-11; see also Ex. 16.)

Plaintiffs sole basis for withholding the payment negotiation and related documents at issue here is

10

an unfounded work product claim that, as the Court has repeatedly found, they are unable to sub-

11

stantiate in the circumstances presented. (Appx. A.) In California, work product is limited to the

12

product of the attorneys effort, research, and thought in the preparation of his clients case includ-

13

ing the legal theories and plan of strategy developed by the attorneya category which would not

14

include negotiations to hire a key fact witness as an expert, payment demands from witnesses or

15

offers to make payments, or any payments actually made to the witness or his agent. (BP Alaska

16

Expl., Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1254 quoting McCoy, California Civil

17

Discovery: Work Product of Attorneys (1966) 18 Stan.L.Rev. 783, 797.)

18

It is Plaintiffs burden to substantiate any claim of work product, but Plaintiffs cannot do so.

19

Plaintiffs generically use the following description for 196 entries: Internal document[s] related to

20

offer of, request for, or prospective or actual payment to current or former AUC member. (Appx. A

21

(Plaintiffs identify nine of the entries and relating to Mangones and Salvatore Mancuso, but do not

22

otherwise even specify the AUC member to which they relate).) Plaintiffs do not describe these

23

payment requests, offers, or negotiation documents as containing work product, let alone reflect[ing]

24

an attorneys impressions, conclusions, opinions, or legal research or theories, (Code Civ. Proc.

25

2018.030 subd. (a).) These documents are thus either not protected at all or are at most entitled to

26

qualified protection. Moreover, not all internal documents are privileged, and the fact that payment

27

negotiations with AUC members are discussed in internal documents does not protect them from

28

discovery. (Coito v. Superior Court (2012) 54 Cal.4th 480, 488 [[w]here relevant and non8
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD
PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 13 of 16

privileged facts remain hidden in an attorneys file and where production of those facts is essential to

the preparation of ones case, discovery may be had.].)

This Court has already held in response to Dole Foods ex parte application that documents

concerning payments to witnesses constitute qualified work product and should be produced

since the court has determined that denial of discovery will unfairly prejudice the party seeking

discovery in preparing that partys claim or defense or will result in injustice. (Ex. 4.) (em-

phasis added.) Plaintiffs privilege log descriptions in Appendix A are no different from the entries

that the Court ruled on pertaining to Raul Hasbn, which were generically described as: Internal

document[s] related to offer of, request for, or prospective or actual payment to current or former

10

AUC member, and related to communication with Raul Hasbn. Just like the Hasbn ex parte doc-

11

uments, because withholding the documents in Appendix A will unfairly prejudice Dole Food in

12

preparing [its] defense and will result in an injustice, the Court should order their production.

13

(Code Civ. Proc. 2018.030 subd. (b) [defining qualified work product protection].)

14

The unfair prejudice to Dole Food is clear. Plaintiffs are now moving forward with the testi-

15

mony of the Letters Rogatory depositions in January and February 2016 and presumably intend to try

16

to offer these deponents testimony at trial. It is beyond question that Dole Food will be prejudiced if

17

it does not have the complete information on payment requests and/or negotiations in time to prepare

18

and use it during the deposition. In fact, the Court denied Dole Foods motion for preclusion of Jose

19

Mangones Lugos testimony without prejudice based in part on Plaintiffs representation that Dole

20

will have a full opportunity to cross-examine these witnesses at the upcoming letters rogatory hear-

21

ings, but now Plaintiffs are withholding the very documents that would allow Dole Food to fully

22

cross-examine him at his deposition. (Ex. 17 at 7-8.) Plaintiffs repeated used of the phrase internal

23

documents does nothing to meet their burden of showing privilege. Plaintiffs records of the sub-

24

stance of their requests, offers, and negotiations with AUC members are likely the only source of this

25

information within the Courts jurisdiction, and should be produced.

26

Furthermore, Plaintiffs have waived any privilege or work product protection by including

27

third parties on their communications. (OXY Res. California LLC v. Superior Court (2004) 115

28

Cal.App.4th 874, 891 [holding that disclosure to third party constitutes waiver, and [a]n expectation
9
DEFENDANT DOLE FOOD COMPANY, INCS THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD
PARTIES LISTED ON PLAINTIFFS PRIVILEGE LOG

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Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 15 of 16

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Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 16 of 16

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