Case 0:08-md-01916-KAM Document 2223 Entered on FLSD Docket 12/26/2018 Page 1 of 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 08-01916-MD-MARRA

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN TORT
STATUTE AND SHAREHOLDERS
DERIVATIVE LITIGATION
/

This Document Relates To:

ALL ATS ACTIONS

_______________________________________ /

ORDER GRANTING PLAINTIFFS’ MOTION TO RESCHEUDLE

COLOMBIAN DEPOSITIONS OF RAUL EMIILIO HASBUN
MENDOZA, LUDY RIVAS BORJA AND A CONFIDENTIAL FACT
WITNESS [DE 2166]

THIS CAUSE is before the Court on the motion to reschedule certain Colombian witness

depositions submitted by ATS Plaintiffs represented by Attorney Wolf [DE 2166], which is supported or

joined by other ATS-Plaintiff groups as to the witness Raul Emilio Hasbun Mendoza [DE 2181]1,

together with the Defendants’ Response in Opposition [DE 2182] and the moving Plaintiffs’ Reply [DE

2185].

Upon a review of all of the circumstances, the Court finds that Attorney Wolf took reasonable

steps to have these depositions scheduled and taken within the discovery time frame. As to the deposition

of Hasbun Mendoza, there were circumstances beyond Plaintiffs’ control, particularly with respect to the

time constraints attending issuance of Second Letters of Request for assistance pursuant to the Hague

Evidence Convention. Additionally, as more particularly set forth in the movant’s procedural chronology,

1
The other ATS Plaintiff groups support the motion as to Hasbun Mendoza, and take no position on the motion as
to the other witnesses. These groups argue that the current motion is unnecessary in light of a prior ruling of this
Court granting Plaintiffs’ motion “for leave to take testimony in Colombia pursuant to Letters Rogatory outside the
discovery cut-off date to the extent reasonably necessary to complete any foreign depositions,” [ DE 1856 at p. 6].
Case 0:08-md-01916-KAM Document 2223 Entered on FLSD Docket 12/26/2018 Page 2 of 4

this contributed to circumstances leading to Movants’ voluntary cancellation of the previously scheduled

depositions of the three witnesses in question.

Given Plaintiffs’ claim of the centrality of one of the witness in question, Hasbun Mendoza, and

his role in the alleged interface between the Defendant Chiquita and AUC paramilitary leaders, and

viewed in light of all of the circumstances, particularly those beyond Plaintiffs’ control, the Court finds

good cause for an extension of the fact discovery deadline in these proceedings, for a reasonable period of

time as needed to facilitate the taking of the Hasbun Mendoza deposition, the Borja deposition, and the

confidential fact witness deposition. Plaintiffs’ counsel shall have leave to re-notice these depositions

after prompt communication with the Colombian authorities on a scheduling agenda. Counsel may

proceed under the previously issued Letters of Request governing these three witnesses; a reissuance of

the Letters is not required by this Court. If, however, Columbian authorities require new letters, the Court

will issue them upon request.

In granting this relief, the Court observes that Movants’ counsel made reasonably diligent efforts

to process Letters of Request issued by this Court on September 18, 2018, as to Ludy Rivas Borja and the

confidential fact witness in question [DE 2118, 2120], in addition to a Second Letter of Request issued

by this Court on September 7, 2018, as to Hasbun Mendoza [DE 2091]. The Court is cognizant of an

intervening dispute between the parties as to whether the originally noticed depositions of these

individuals (October 16-17, 2018 ( Hasbun Mendoza) and October 18, 2018 (Borja and confidential fact

witness)) were properly scheduled in conformity with the protocol previously prescribed by this Court,

with Chiquita contending that movants’ informal scheduling of “interviews” through the Colombian

authorities did not comply with the Court’s directives [DE 2152], but this matter was dismissed as moot

after moving counsel simply cancelled the deposition notices in question [DE 2156].

It appears that the subject Letters of Request issued by this Court were in fact delivered to the

Colombian authorities, as directed, but that the Colombian government processed the Letters in a less

formal manner than has previously been the case – scheduling an “interview” with Hasbun Mendoza and

reserving a courtroom for this purpose. This Court has never directed that Colombian depositions must
Case 0:08-md-01916-KAM Document 2223 Entered on FLSD Docket 12/26/2018 Page 3 of 4

be conducted in the presence of a Colombian judge, and the intervening dispute between the parties as to

whether the absence of this accommodation rendered the deposition notices noncompliant – a matter left

unresolved until this juncture – led to the delay in completing the depositions within the prescribed fact

discovery deadline. Because this delay is not attributable to conduct Plaintiffs’ counsel, it is not held

against counsel in the resolution of the current motion for rescheduling of these depositions, which was

filed on October 23, 2018 – just eight days after the Court’s denial of Chiquita’s emergency motion to

quash the October Colombian depositions as moot in light of plaintiff’s cancellation notice [DE 2158].

It is accordingly ORDERED and ADJUDGED:

1. The Plaintiffs’ motion for leave to reschedule the Colombian depositions of Raul

Hasbun, Ludy Rivas Borja and a confidential fact witness [DE 2166] is GRANTED

under the conditions set forth by this Order.

2. The depositions must be completed in accordance with the Colombian deposition

protocol previously delineated by this Court, including the requirement that all

Colombian deponents testify under oath, subject to penalties of perjury under

Colombian law. It is not necessary that the entirety of the deposition testimony be
2
given in the presence of a Colombian judicial officer. However, the Court requires

that all deponents provide a sworn oath, administered by a judicial officer or other

Colombian authority authorized to administer oaths in Colombia, at the

commencement of the deposition.

2
The moving party represents that the presence of a Colombian judicial official may be obtained through
cooperation of Colombian judicial authorities, but that this accommodation will take approximately three or four
months to schedule. The Court finds it unnecessary to burden the Colombian judiciary to this extent, and is satisfied
that the administration of a sworn oath by an authorized Colombian authority is sufficient to preserve the integrity of
the deposition proceedings.
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3. The time for taking of the above-referenced depositions is extended up to and

including FRIDAY, FEBRUARY 8, 2019 (one week prior to the dispositive motion

deadline, which remains in place). The fact discovery deadline otherwise remains

intact.

4. Given the proximity of this limited extension of the discovery deadline to the

dispositive motion deadline, the Court shall permit any party moving for summary

judgment, in whole or in part, to submit one supplemental filing, addressed

specifically to any evidence developed in any one or more of the designated

depositions, not to exceed five pages in length, by no later than MARCH 8, 2019.3

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 22nd day of

December, 2018.

KENNETH A. MARRA
United States District Judge

cc. all counsel

3
The deadline for submission of responses in opposition to any summary judgment motions, set for March 15,
2019, shall remain in place.