Case 0:08-md-01916-KAM Document 1472 Entered on FLSD Docket 06/09/2017 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 08-MD-01916-MARRA

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION
____________________________________/

This Document Relates to:

ALL ATS ACTIONS

_____________________________________/

ORDER DENYING NEW JERSEY PLAINTIFFS EMERGENCY MOTION

FOR ORDER COMPELLING ATTORNEY WOLF TO MAINTAIN
CONFIDENTIALITY IN COMMUNICATIONS REGARDING OVERLAPPING
CLAIMS OF CLIENT REPRESENTATION [DE 1437]
AND
ORDER DENYING NEW JERSEY PLAINTIFFS EMERGENCY MOTION
TO SEAL AND STRIKE DOCKET ENTRY NO. 1466 [DE 1467]

THIS CAUSE is before the Court on the New Jersey plaintiffs emergency motion for

entry of an order compelling Attorney Paul Wolf to maintain confidentiality of alleged work

product and attorney-client privileged discussions regarding apparent overlaps in representation

between Mr. Wolfs clients and clients who have signed retainers with the New Jersey Plaintiffs

counsel [DE 1437].1 Having carefully reviewed the motion, together with Attorney Wolfs

response in opposition [DE 1458], Defendant Chiquitas response [DE 1461] and the New

Jersey Plaintiffs reply [DE 1463], the Court denies the motions for the reasons which follow.

This is the New Jersey Plaintiffs second motion seeking to impose confidentiality

requirements over communications between New Jersey counsel and Attorney Wolf. The first

motion sought sanctions against Mr. Wolf for disclosing to opposing counsel certain email

1
Also before the Court is the New Jersey Plaintiffs companion motion to seal and strike docket entry No. 1466,
constituting Attorney Wolfs notice of compliance with certain pretrial discovery disclosure obligations [DE 1467],
a motion separately addressed in the concluding remarks of this Order.
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communications between plaintiffs counsel relating to Colombian deposition protocol. The

Court denied the New Jersey Plaintiffs original motion, finding that the alleged unauthorized

disclosures did not encompass confidential matters [DE 1188]. In so holding, the Court made

the following observations:

The Court agrees it does not have the authority to compel Mr. Wolf to participate
jointly in strategic, confidential decision-making processes with other
plaintiffscounsel in this MDL proceeding, under shield of the common interest
doctrine. It is apparent from his public statements that Mr. Wolf has elected to
withdraw from the community of other plaintiffs counsel who have agreed to
engage collectively in this protected decision-making processes, as is his right.

[T]he communications of which Movants complain -- which followed Mr. Wolfs
express disavowal from any further community of interest with the others
plaintiffs groups -- do not relate to confidential matters within the contemplation
of the August 2015 order and therefore are not appropriately invoked here as the
basis for entry of sanctions.

[DE 1188, p. 8 4]. At the same time, the Court recognized that Mr. Wolf did have an

obligation to maintain confidentiality as to any communications to which he was made privy

before his withdrawal from the circle of plaintiffs counsel, and prohibited the disclosure of

such communications without an advance ruling by the Court. Finally, the Court directed Mr.

Wolf to apply for leave of court before voluntarily disclosing, outside of formal discovery

processes, any matters which reasonably appear to implicate a legal privilege of any kind or

nature [DE 1188, p. 9].

More recently, addressing the New Jersey Plaintiffs current motion to compel

confidentiality from Mr. Wolf, the Court entered an expedited briefing scheduling order and

further directed Attorney Wolf to refrain from disclosure of any alleged confidential

information until the Court ruled on the merits of the motion. [DE 1438].

The New Jersey Plaintiffs complain that Attorney Wolf has violated these court-ordered

confidentiality obligations. The first alleged violation relates to disclosing to Defendant Chiquita

2
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the identities of certain named plaintiffs claimed as clients by both Mr. Wolf and New Jersey

counsel, as well as the fact of overlapping representation presented by these competing claims.

The second alleged violation relates to disclosing the identities of certain unnamed plaintiffs

falling within the putative class described in the New Jersey Plaintiffs complaint.2 They also

contend that Mr. Wolfs disclosure of recent email communications between plaintiffs counsel

relating to these competing claims of client representation is in violation of a confidentiality

agreement signed by Mr. Wolf on July 25, 2011. [DE 1463-4]. The confidentiality agreement

bound signatory counsel for the various plaintiff groups not to disclose voluntarily identifying

information relating to those plaintiffs who chose to proceed by pseudonym in this MDL

proceeding.3

Based on Mr. Wolfs alleged breach of these confidentiality requirements, New Jersey

Plaintiffs seek entry of an order restraining Mr. Wolf from making any future disclosures of this

nature. Further claiming an entitlement to engage in confidential discussions with Mr. Wolf in

the future, as the only realistic way to privately resolve these apparent [client] overlaps, the

New Jersey Plaintiffs further seek entry of a protective order governing the confidentiality of

such future discussions. They complain that their entreaties to Mr. Wolf in this regard have

been consistently rebuffed, and that Mr. Wolf continues to express his intent to share all

2
The New Jersey Plaintiffs indicate that the seven unnamed plaintiffs in question were the subject of the New Jersey
Plaintiffs recent unsuccessful attempt to amend their complaint to add new plaintiffs, and to name individually all
plaintiffs in the New Jersey Action.
3
Notably, this Agreement predates, by almost six years, the Global Scheduling Order for all ATS cases entered
April 11, 2017, an Order which largely tracks the preliminary discovery obligations proposed by the parties
themselves and imposes, per the parties mutual agreement, the following disclosure requirements on Plaintiffs:

Plaintiffs Disclosure to include: The total number of Plaintiffs whose cases counsel intend to prosecute and
which Plaintiffs counsel represents which Plaintiff. This disclosure shall include the identity of each
Plaintiff and shall be subject to the terms of an appropriate Protective Order limiting its dissemination.

[DE 1361, p. 2 4.b.]

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communications regarding the alleged client overlaps with opposing counsel. Failing a mutual

resolution of this client representation dispute in a confidential setting, counsel for the New

Jersey Plaintiffs hints at a forthcoming request for judicial intervention.

For his part, Mr. Wolf states that counsel for the New Jersey Plaintiffs, Attorney Marco

Simons of Earthrights International, alerted him on May 18, 2017, to the existence of claims of

overlapping representation involving six specific clients a full three weeks after the court-

ordered April 24, 2017 deadline for disclosure of all plaintiff and corresponding attorney

designations. Mr. Wolf maintains that his disclosure to opposing counsel of the identities of the

named and unnamed plaintiffs at the crux of this controversy was properly marked as highly

confidential and was made consistent with his disclosure obligations under the Courts Global

Scheduling Order. He acknowledges that the allegation of duplicate representation is a new

matter voluntarily revealed in conjunction with his disclosures, but contends this is not

privileged information subject to the terms of any of the prior confidentiality requirements

imposed upon him.

Defendant Chiquita does not formally oppose the motion, but has filed a response

expressing concern that the competing client claims between New Jersey counsel and Attorney

Wolf has interrupted the court-ordered preliminary discovery obligations imposed on all

Plaintiffs counsel, and that the failure of certain Plaintiffs counsel to make these disclosures

timely has resulted in the pressing of duplicate, and in some cases triplicate, claims against

Chiquita or the Individual Defendants, as evidenced in the controversial email chain in question.

[DE 1437-4].

Further, Chiquita contends that counsel for the New Jersey Plaintiffs has withheld the

names of roughly 397 newly-added plaintiffs in two of the ATS cases filed in March 2017 (Case

4
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No. 17-80547 (Ohio) and Case No. 17-80823(Florida),4 and that other Plaintiffs counsel have

refused to identify the names of persons who are allegedly members of the putative class defined

in Case No. 08-80421 (New Jersey), a pool encompassing 598 unknown persons. Chiquita

takes issue with technical arguments of Plaintiffs counsel that (i) the putative class members

are not plaintiffs within the meaning of the Global Order directing preliminary plaintiff

disclosures and (ii) the newly-added plaintiffs in the March 2017 case filings are not

encompassed by the Global Scheduling Order because those cases were not (yet) part of this

MDL proceeding at the time the Global Scheduling Order was entered on April 11, 2017.

Chiquita seeks entry of an order clarifying that the preliminary disclosure requirements

imposed by the Global Scheduling Order apply to the entire universe of persons asserting claims

against Chiquita and the Individual Defendants in this MDL proceeding. Finally, Chiquita

objects to the New Jersey Plaintiffs proposal that the April 24, 2017 deadline be extended to

accommodate ongoing confidential negotiations between New Jersey counsel and Mr. Wolf

aimed at resolving the conflicting claims of representation [DE 1361, p. 2].

Upon careful consideration of the parties respective briefing, the Court concludes that

Attorney Wolfs disclosure of the fact of overlapping clients between New Jersey counsel and

Mr. Wolf -- and his corollary disclosure of the identities of the claimants at the heart of that

dispute to opposing counsel -- does not implicate the disclosure of information which could

reasonably be interpreted as protected by attorney-client or work product privilege and does not

encompass alleged confidential information within the meaning of the Courts recent

4
In contrast, Chiquita reports that other ATS Plaintiffs counsel have revealed the identity of newly-added plaintiffs
in other March 2017 filings as part of their court-ordered April 24, 2017 initial discovery disclosures.

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directives. Thus, the Court will deny the New Jersey Plaintiffs emergency motion to compel

confidentiality from Mr. Wolf.5

The Court also recognizes Defendant Chiquitas legitimate concerns over the interruption

of the court-ordered discovery deadlines for plaintiff identification occasioned by this conflict

between New Jersey counsel and Mr. Wolf, and to address these concerns it shall enter an

amended, imminent deadline for the completion of these disclosures, a directive which shall

encompass the entire universe of claimants subsumed in this MDL proceeding

Finally, with regard to the New Jersey Plaintiffs companion motion to seal and strike

Docket No. 1466, Attorney Wolfs notice of (discovery) compliance, including Mr. Wolfs

parenthetical references to the evolution of the ongoing client representation dispute between

himself and New Jersey counsel, the Court likewise finds no basis for the emergency relief

requested. By this public filing, Mr. Wolf apparently seeks to present his side of the

representation conflict, without mentioning the names of the client(s) quoted, or the identity of

the intermediaries aligned with New Jersey counsel who allegedly obtained contracts on behalf

of New Jersey counsel. The statements attributed to a certain unnamed client regarding the

selection and retention of counsel in these matters do not constitute confidential

communications subject to the Courts prior directives regarding the release of potentially

confidential information by Mr. Wolf. Whether Mr. Wolf has presented an accurate historical

account of these client dealings in is not an issue currently before the Court, and New Jersey

counsels vigorous dispute of that accounting is likewise irrelevant to any issue properly pending

before the Court at this juncture. Because New Jersey counsel has not identified the breach of

any directive of the Court respecting publication of confidential information or potentially

5
In reaching this conclusion, the Court reiterates that it does not have authority to compel Mr. Wolfs participation
in confidential discussions with other Plaintiffs counsel on the subject of conflicting client representation claims
or otherwise and that other Plaintiffs counsel continue to pursue such conversations at their own risk.

6
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privileged information through Mr. Wolfs voluntary, albeit arguably unnecessary, disclosure of

this material through the vehicle of his notice of discovery compliances, the New Jersey

Plaintiffs companion motion to seal and strike docket entry no. 1466 shall be denied.

Against this backdrop, the Court observes that judicial resources in this complex

proceeding are better spent on substantive issues rather than on internal disputes between

plaintiffs counsel over conflicting client representation and usurpation claims. The Court sees

little value and significant distraction in being asked to umpire these disputes, and recommends

that counsel for all involved parties attempt to resolve their differences privately.

Furthermore, the Court will not consider the ongoing disputes over conflicting client

representation claims as a basis for an extension of the deadline governing plaintiff

identifications and corresponding designations of counsel, subject to the requirements of the

protective order previously imposed.

It is accordingly ORDERED AND ADJUDGED:

1. The New Jersey Plaintiffs emergency motion for entry of order compelling

Attorney Wolf to maintain confidentiality over communications between counsel

concerning apparent overlaps in client representation [DE 1437] is DENIED.

2. The deadline for preliminary Plaintiffs disclosures of all plaintiff identities and

corresponding attorney designations, as previously directed in the Courts Global

Scheduling Order [DE 1361, p. 2 4.b.], is extended up through and including

MONDAY JUNE 19, 2017. No further requests to extend this deadline will be

entertained. This disclosure obligation applies the universe of all claimants against

Chiquita or the Individual Defendants subsumed in this MDL proceeding,

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including all newly-added plaintiffs in all 2017 case filings, and all members of the

putative class described in the New Jersey action.

3. The New Jersey Plaintiffs motion to seal and strike docket entry no. 1466 [DE

1467] is DENIED.

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 8th day of

June, 2017.

KENNETH A. MARRA
United States District Judge

cc. All counsel