Case 0:08-md-01916-KAM Document 1883 Entered on FLSD Docket 04/10/2018 Page 1 of 6

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 ACTION

10-80652-CIV-MARRA (Does 1 – 976)

_____________________________________/

ORDER GRANTING IN PART AND DENYING IN PART

PLAINTIFFS’ (DOES 1-976) TIME-SENSITIVE MOTION FOR SUPPLEMENTAL
ORDER GOVERNING DEPOSITION PROTOCOL RE: RAUL HASBUN MENDOZA
[DE 1878]

THIS CAUSE is before the Court on the Plaintiffs’ (Does 1-976) time-sensitive motion

for entry of a supplemental order governing the deposition protocol for the anticipated deposition

of Raul Emilio Hasbun Mendoza, a Colombian citizen. The Court previously issued Letters of

Request pursuant to the Hague Evidence Convention seeking the assistance of the Colombian

government in compelling the appearance of Mr. Hasbun Mendoza for deposition [DE 1878].

Having carefully reviewed the motion, together with the response of Attorney Jack Scarola,

submitted on behalf of all MDL Plaintiffs, save those represented by Mr. Wolf in Case Nos. 10-

80652, 11-80404 and 11-80405 [DE 1880]; the response of Defendant Chiquita Brands

International, Inc. [DE 1881] and the reply of Attorney Paul Wolf, on behalf of Does 1-976 [DE

1882], the Court rules as follows:

As the Court first granted Attorney Paul Wolf’s unopposed motion for issuance of letters

of request as to this witness [ DE 1708], and as Attorney Jack Scarola, acting as liaison counsel

for the remaining groups of “ATS” MDL-Plaintiffs made a duplicate request for issuance of

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letters as to this witness [DE 1687], the Court entered its Supplemental Order governing

Procedures to Be Followed in Implementation of Letters of Request for Judicial Assistance to the

Republic of Colombia as to the deposition of Raul Hasbun on December 21, 2017 [DE 1729].

That order directed that, as to this witness, Attorney Wolf is designated as principal attorney

charged with coordinating a time and place for deposition in coordination with Colombian

authorities. The Court’s order also made clear that it was permitting only one deposition of this

witness, which was to be conducted in the presence of a court reporter able to produce a verbatim

transcript of proceedings, with the assistance a translator fluent in the Spanish and English

languages.

Since entry of that order, Attorney Scarola, by his own description of relevant events [DE

1880, p. 2], contends he has been “exploring,” on behalf of all other remaining MDL Plaintiffs,

the option of taking a “voluntary” deposition of this witness, “independent of a letter rogatory,”

contending there is nothing in the Court’s prior orders precluding this alternative avenue of

discovery. In furtherance of this creative “exploration” technique, Attorney Scarola circulated

an email notice to opposing counsel scheduling this witness for a 4/13/18 deposition in Colombia

(an email on which Attorney Wolf was apparently not copied) [DE 1881, p. 3]. This informal

notice of deposition was later withdrawn, again by email notice to opposing counsel.

After the pendency of the 4/13/18 deposition came to the attention of Attorney Wolf, by

happenstance, he filed the instant motion, unaware that the Hasbun Mendoza deposition had

apparently been cancelled in the same unofficial manner in which it was originally set.

On March 27, 2018, the Court entered its omnibus order, directing Mr. Scarola, a moving

counsel in certain then pending discovery requests, to confer with all other counsel, to

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specifically include Mr. Wolf, in coordinating deposition scheduling and questioning protocol in

advance of the depositions then at issue [DE 1856, ¶¶ 1-2].

Upon this background, it is ORDERED AND ADJUDGED:

1. Plaintiffs (Does 1-976) motion for entry of a supplemental order governing the

deposition protocol for taking of the deposition of Raul Hasbun Mendoza is

GRANTED to the extent that the Court reaffirms the directive of its December

21, 2017 order placing responsibility on Mr. Wolf to coordinate the scheduling of

the deposition with the Colombian authorities, with prompt notice to all other

counsel of all communications exchanged with Colombian authorities on the

subject.

2. Attorney Wolf shall accordingly proceed, as the designated principal attorney

coordinating the Raul Hasbun Mendoza deposition, to schedule this matter in

cooperation with the Colombian authorities, pursuant to Letters of Request

previously issued on behalf of his clients. He is further directed to file a notice of

confirmation that this deposition has been scheduled (confirming that the

deposition has been scheduled for a time certain in coordination with Colombian

authorities – without any details as to the date, time or place of deposition – and

further confirming that notice has been sent to all counsel of record). The notice

shall be filed with the Court within TWENTY (20) DAYS of the date of entry of

this Order, subject to extension for good cause shown.

3. The motion is also GRANTED to the extent that Attorney Wolf is designated as

the counsel entitled to first question this witness. The time allotted for the

deposition shall not exceed a seven hour maximum, unless the witness and

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Colombian authorities agree to a longer time. The time shall be divided equally

between Plaintiffs’ counsel and Defense counsel as previously ordered. On the

Plaintiffs’ side, the time shall be further divided equally between Mr. Wolf and

liaison counsel for the remaining MDL Plaintiffs, unless a different division is

mutually agreed upon by counsel.

4. Plaintiffs’ motion is DENIED to the extent Does 1-976 seek to limit the use of

exhibits, testimony transcripts or otherwise, in the cross-examination of this

witness at deposition. This order is without prejudice for any party to raise issue

or objection to the admissibility of any exhibit or related deposition testimony in

later evidentiary proceedings.

5. Does 1-976’s motion for a supplemental order governing the deposition protocol

for foreign witness Raul Hasbun Mendoza is DENIED to the extent Plaintiffs

seek leave to conduct a non-stenographic deposition in Spanish only with no

English translations. All terms governing the deposition protocol pertaining to

the presence of an official court reporter and qualified translator apply. The

deposition may be conducted by video if permitted by Colombian authorities, at

the sole expense of the party or parties seeking to add this technology for the

preservation of the testimony.

6. The Court’s prior Supplemental Order governing deposition protocol for Raul

Hasbun Mendoza is here AMENDED as to the cost provisions only. The costs of

the deposition shall be divided equally between or among counsel for all

bellwether Plaintiff groups, with Mr. Wolf bearing 1/7 of the costs, and each other

bellwether Plaintiff group bearing its proportionate 1/7 of the total costs.

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7. Finally, all counsel to this MDL proceeding, involving the remaining claims of

the thousands of Colombian citizens whose relatives were murdered in Colombia

by terrorist groups allegedly funded by Defendants, are specifically admonished

as follows: No party to this proceeding is at liberty to seek, in effect, a unilateral

recall of Letters of Request issued by this Court to the Colombian government by

informally attempting to achieve a voluntary appearance of a foreign witness,

with or without formal notice of the deposition in the manner prescribed by the

Federal Rules of Civil Procedure. Once a party to this proceeding has

(successfully) asked the Court for the extraordinary measure of seeking

international cooperation in the compelled production of evidence from a foreign

nation pursuant to Hague Evidence Convention procedures, no other party shall

impede or interfere with that process, or otherwise seek to circumvent the

prescriptions of the Court, by independently pursing a “voluntary” appearance of

the witness without first alerting the Court and seeking its advance permission, on

good cause shown, for avoiding or recalling extant Letters of Request.

8. Attorney Jack Scarola is directed to file a copy of all email correspondence sent to

opposing counsel relating to liaison counsel’s attempted (4/13/18) scheduling and

subsequent cancellation of the deposition of Raul Hasbun Mendoza (redacting

location data only) within THREE (3) DAYS of the date of entry of this Order.

DONE AND ORDERED in Chambers at West Palm Beach Florida this 10th day of

April, 2018.

KENNETH A. MARRA
United States District Judge

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cc. all counsel