Case 0:08-md-01916-KAM Document 1828 Entered on FLSD Docket 03/14/2018 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:

ATS ACTIONS
______________________________________________/

RESPONSE TO PLAINTIFFS’ AND CHIQUITA’S

JOINT STATUS CONFERENCE STATEMENT [DE 1827]

Neither counsel for Chiquita Brands nor for the other Plaintiffs conferred with me before

filing this statement on the day before the status conference. I tried to confer with all other parties

on these issues and my positions are known to all of them, yet are not mentioned anywhere in the

Joint Status Conference Statement. I object to the refusal to confer, and also to Chiquita's having

separate discussions on discovery, scheduling, and really any matter. The MDL Transferee Court

is supposed to ensure that these communications, and discovery requests and responses, are

coordinated. The first motion on the agenda for tomorrow is my Motion for Sanctions, which is

really asking the Court to remedy this situation.

I. ADDITIONAL MOTIONS PENDING

Wolf's Position

In setting the status conference, the Court first said it would discuss the "desirability and

feasibility of moving up the currently scheduled trial dates of designated bellwether cases" DE

1818 at 2, "[i]n addition to a general discussion of pretrial scheduling procedures..." Id.

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The other counsel did not state their positions on this, but I am in favor of advancing the

trial schedule. Chiquita has been investigated several times, and many of the upcoming trial issues

have already been briefed. The two bellwether trials are now scheduled for October 28, 2019 and

Feb 3, 2020. I could be ready for trial three months earlier, for example, or six months earlier. I'm

also willing to go along with shortening the briefing schedules for the motions for summary

judgment and in limine. I normally file my briefs well ahead of schedule in this case and prioritize

it over my other work.

II. MOTION FOR EXTENSION

Wolf's Position

I was not consulted on the four month extension but consent to it. However, if there is no

path to trial for my clients in this court, then I would want to remand the Does 1-976 case back to

the District of Columbia as soon as practicable. I believe this issue is tied to the discussion of the

bellwether trial schedule.

III. UPDATE ON LETTERS ROGATORY

Wolf's Position

After reading Mr. Collingsworth's Declaration, DE 1819 at 33-39, I realized that I had not

served the Hague Request for witnesses Hasbun, Veloza and Bernal on the Colombian Ministry of

External Affairs. We are in the process of hand-delivering this, but I do not believe it has been

delivered yet. I regret that we got into this pointless fight the court had to resolve.

I don't want to fight over who does takes the depositons, but I continue to object to the use

of paramilitary witnesses with improper relationships with Mr. Collingsworth. For example, in

the "Plaintiffs Second Unopposed Motion" for Hague Requests - which I opposed, DE 1798, the

final three witness appear to have improper relationships with Mr. Collingsworth and to be

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prepared to testify untruthfully. AUC member Jairo Alfonso Samper Cantillo supposedly "was

present at meetings with Chiquita;" AUC member Edgar Ariel Cordoba Trujillo was supposedly

given the names of 10-12 people to execute by a "Chiquita manager;" and Rolando Rene Goravito

Zapate was the right hand man of Jose Gregorio Mangones Lugo, and the "key person who

performed services for Chiquita." DE 1798 at 10-11. This is all the result of Mr. Collingsworth's

misunderstanding of the important legal standards to be applied. This case is essentially a

negligence case, at least for claims against the corporation. The Court should again hold that

Chiquita cannot argue the duress defense just based on one meeting, when Carlos Castaño

conveyed "an unspoken threat" no one attending the meeting could describe. Claims against

Individual Defendants may require a showing of intent, but there will be insufficient funds to pay

these claims anyway. 1 That's why I believe the emphasis on paramilitary witnesses, particularly

those who are easily impeached with accusations of being part of an egregious RICO conspiracy,

along with Mr. Collingsworth as a rebuttal witness, invoking his right to remain silent as he did in

Drummond, and seriously harming the Plaintiffs' chance of success at trial.

The Court may wish to review some of its earlier orders on the coordination and cost-

sharing of depositions, see Order on Time Sensitive Motion to Modify Judicial Assistance DE 865,

and Supplemental Order on Hasbun Mendoza Depo, DE 1729. I promised to notify the Court in

a public filing when I get a response to my Hague Convention Request. Id. As it turns out, I may

have fumbled the request by not hand-delivering it to the Colombian Ministry of Exterior

Relations. I'm not sure why the other counsel are fighting with me over this, and the two other

1
Although the Court should deny the Earthrights / New Jersey Plaintiffs Motion to Compel, about
half of the claims in the MDL are only against about ten Individual Defendants, who are probably
not wealthy enough to pay thousands of wrongful death claims. For them, maybe a Rule 23(b)(1)
class would make sense. This doesn't require compelling discovery of the corporation's financial
records, though, since the corporation's wealth would be irrelevant.
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paramilitary depositions I requested. (Mr. Veloza Garcia and Mr. Bernal) If I could be assured

that the other plaintiffs counsel could take this testimony without tainting it with any of the false

narratives promoted by Mr. Collingsworth, I would let them. His witnesses want to testify about

fictitious meetings with Chiquita employees, murder-for-hire, and other outlandish accusations

that could only have come from Mr. Collingsworth. From his recent affidavit, it appears Mr.

Collingsworth is personally managing their contacts with the AUC. DE 1819 at 34 ¶ 6. Otherwise,

it would be much cheaper and easier for me to just buy copies of transcripts. The Court should

disqualify Mr. Collingsworth before he can do any more damage.

IV. ADDITIONAL ISSUES

A. Trial coordination.

Wolf's Position

The other parties' refusal to confer with me on this issue means that for all practical

purposes, we have to have separate trials. Since the Court wants to discuss advancing the trial

schedule, and the Joint Status Conference Statement, DE 1827, ignores this issue, the Court should

schedule a bellwether trial for my clients for three months earlier, on August 5, 2019.

B. Rule 30(b)(6) Depositions

Wolf's Position

Chiquita and the other counsel agreed on deposing a Rule 30(b)(6) witness on April 4, 2018

but neither of them sent me a notice. When I sent Chiquita my own Rule 30(b)(6) Deposition

Notice, I was informed that I would have to share a witness with the other plaintiffs' counsel. I

sent them my deposition notice, which is very simple because the subject matter is restricted to

"contacts with the AUC." The other counsel didn't send me the notice for the 30(b)(6) witness

they scheduled, and I have no idea what the person is going to testify about, other than what is in

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the Joint Status Conference Statement: "a variety of topics, ranging from corporate structure and

accounting practices to payments to the AUC and the smuggling of guns and drugs." All parties

should get notices of all these depositions, and have access to the transcripts and be able to use

them in their trials. The MDL Transferee Court should facilitate this.

If Chiquita wants to use John Ordman again, I would object to his use for my issue. When

he was deposed in the National Union Fire Ins. case on March 13, 2009, he repeatedly claimed to

have no knowledge of this subject. See pages 85-87 and 224-227. The payments to different

illegal groups were color coded,2 but Mr. Ordman couldn't identify which groups corresponded to

which codes, so it was impossible to tell whether the payments were to the FARC, AUC or another

group. Also, the payments were made by Banadex employees. My Rule 30(b)(6) request was for

"contacts with the AUC." Mr. Keiser was closer to the payments than Mr. Ordman, but only

claims to have had this one meeting with Castaño, while Banadex employees were meeting with

them regularly and paying them before this meeting.

Courts have sanctioned parties where the designated representative is someone with no

knowledge and it's clear that others with knowledge could have been provided and were not. FDIC

v. Bucher, 116 FRD 196, 199 (ED Tenn. 1986) aff’d, 116 FRD 203 (1987) (corporation engaged

in “intransigent behavior,” where it withheld a key “six-part memorandum” from the designated

representative who was completely unprepared to discuss it where the employees who prepared

the memorandum were available to testify about it); Resolution Trust v. Southern, 985 F.2d 196,

196-198 (5th Cir. 1993) (sanctions were appropriate where the corporation possessed documents

clearly identifying an employee as having personal knowledge of the subject of the deposition, but

where it did not furnish those documents or designate the employee until after it had designated

2
The documents were only produced in black and white.
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two other employees “who possessed no knowledge relevant to the subject matters identified in

the Rule 30(b)(6) notice”).

If the other plaintiffs' counsel also want Rule 30(b)(6) testimony on contacts with the AUC,

I will agree to split my time with that witness. However, the deposition will only be significant if

Chiquita designates a Colombian employee, such as a general manager or security director of

Banadex. The deponent doesn't have to be their employee - Mr. Ordman retired many years ago.

And if the deponent is someone who only knows about the Castaño meeting, it won't take long.

Corporate representative deposition responses of “I don’t know” or “I don’t remember/recall”

equate to a failure to appear, creating a duty to substitute someone who does know or to the

imposition of other sanctions. U.S. v. Taylor, 166 F.R.D. 356, 360-361 (M.D.N.C. 1996) (“do

not know” responses equate to a failure to appear); Barron v. Caterpillar, 168 FRD 175, 177 (E.D.

Pa. 1996) (Rule 30 (b)(6) creates a duty to substitute - even if corporation had a good faith belief

that the witness could properly respond).

C. Plaintiffs unable to obtain visas

Wolf's Position

I am skeptical that only my clients, and those of Conrad & Scherer, were able to get visas

and appear for depositions in Florida. According to Chiquita, only one quarter of the bellwether

plaintiffs have appeared. Conrad & Scherer brought eight, and I brought six, which equals fourteen

or one quarter of 56. I have spent years living in the region and had three different offices over

the years. Bob Perillo of Conrad & Scherer also appears to have still have good contact with their

clients. This is no easy task. The five other plaintiff groups don't want to admit that by dealing

with multiple intermediaries, and not really ever establishing an attorney-client relationship, they

are now unable to either find their clients, or get them to cooperate.

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The plaintiffs unable to obtain visas should just be replaced with no adverse effect on their

cases. Utimately, the goal should be to try a sufficient number of bellwether cases, and bifurcate

them on common issues, so that the results can be applied statistically, 3 or at least with partial

findings that can be applied to all the others. The plaintiffs who were denied visas should just

have to wait to have the bellwether results applied to them. 4

If other plaintiffs' counsel are unable to bring their clients to the US, it means their cases

didn't stand up to the selection process ordered by the Court. All of my six bellwether plaintiffs

appeared at the time and place in Florida specified by Chiquita. Three did not appear because they

had medical issues that the Court didn't excuse, but did agree to be deposed in Colombia. Those

cases were withdrawn. The last of the eight had died. I would like to know why the other 3/4 of

the bellwether plaintiffs' didn't appear, and doubt it was because of a denial of visas. These firms,

most of whom haven't been able to produce a single plaintiff for a deposition, are also excluding

my clients from discussions over how the bellwether trials should be conducted.

Respectfully submitted,

/s/ Paul Wolf

____________________
Paul Wolf, CO Bar 42107
PO Box 46213
Denver, CO 80201
paulwolf@yahoo.com
fax: n/a

March 14, 2018

3
In the Marcos case, a statistics expert was used to design a sample of 137 bellwether trials that
could be statistically applied to thousands of others. In re Estate of Marcos Human Rights
Litigation, 910 F.Supp. 1460 (1995). The Ninth Circuit upheld this method on appeal. Hilao v.
Estate of Marcos, 103 F.3d 767 (1996)
4
We can designate as many cases as anyone wants to be bellwether cases. I'm waiting for Chiquita
to select replacements for my two plaintiffs that were denied visas.
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Certificate of Service

I hereby certify that on this 14th Day of March, 2018, I filed the foregoing document with

the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, that will send notices

to every person entitled to receive them.

/s/ Paul Wolf

_____________
Paul Wolf