chiquita motion to participate in hague convention requests

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 08-01916-MD-MARRA

IN RE: CHIQUITA BRANDS INTERNATIONAL,

INC. ALIEN TORT STATUTE AND SHAREHOLDER

DERIVATIVE LITIGATION

_____________________________________/

This Document Relates To:

ATS ACTION

11-80405-CIV-MARRA

_____________________________________/

Plaintiff Does 1-254 Motion to Participate in the Hague Convention

Request to the Government of Colombia for Evidence of Financing

of the Fuerzas Armadas Revolucionarias de Colombia (FARC)

COME NOW the Plaintiffs, Does 1-254, by and through undersigned counsel and

pursuant to F.R.C.P. 26 (d), to move the Court for an order permitting Does 1-254 to

receive copies of the same discovery produced by the Government of Colombia to

Plaintiffs Julin, Pescatore, Sparrow, et al, in response to their proposed request under the

Hague Convention (hereinafter "ATA Hague Request"). R 927-1. The Defendant

Chiquita Brands and counsel for the ATA plaintiffs were asked over the weekend

whether they would consent to or oppose this motion, but have not yet not replied.

Undersigned counsel is filing this motion now since he is concerned that the Court may

quickly resolve what appears to be an uncontested issue.

Case 0:08-md-01916-KAM Document 928 Entered on FLSD Docket 11/08/2015 of 8

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FACTUAL SUMMARY

At the beginning of this litigation, by agreement of the parties, the Court

suspended all discovery until resolution of the defendants’ motions to dismiss the

plaintiffs’ initial complaints. R. 66. Under the terms of the Court’s original Case

Management Order, R. 141, the discovery stay remains until resolution of Chiquita’s

renewed motion to dismiss Colombian tort claims on forum non conveniens grounds, and

the individual defendants motions to dismiss under Rule 12 (b) (6). R. 735, 741. Due to

the pendency of these motions, there has been no Rule 26(f) conference.

On November 6, 2015, counsel for Defendant Chiquita Brands and for the ATA

Plaintiffs jointly moved the Court to issue a Hague Convention request to 15 Colombian

national and local agencies for documents related to the financing and extortive practices

of the Fuerzas Armadas Revolucionarias de Colombia, or FARC. Unlike the "ATS"

cases, the ATA plaintiffs are engaged in discovery at present, including the instant

request to the Colombian government. The Does 1-254 Plaintiffs seek only copies of

what is produced by the Colombian government.

ARGUMENT

1. There is good cause to grant Plaintiffs' Motion for Expedited Discovery

Under Rule 26 (d) (1), a party may not seek discovery from any source before the

parties have met and conferred as required by Fed. R. Civ. P. 26 (f). The rule is subject

to certain exceptions, including a court order permitting discovery. In the absence of

controlling 11th Circuit precedent, the Court has adopted the "good cause" or

"reasonableness" standard for evaluating requests for expedited discovery, rejecting the

preliminary injunction -style test of Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982). See


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Order Granting Plaintiffs Emergency Motion to Take Depositions to Perpetuate

Testimony of Roldan Perez, Mangones Lugo and Rendon Herrera, R. 227 at 6-8.1 That

is, expedited discovery is allowed "when the need for it outweighs the prejudice to the

responding party." Id. at 6; Edgenet, Inc. v. Home Depot USA, Inc., 259 F.R.D. 385

(E.D. Wis. 2009). This is the law of the case. The same test should be applied to the

instant Motion. The Court also noted that in assessing good cause, it should consider

whether the subject matter of the request is narrowly tailored in scope. Id. at 7.

a. Does 1-254 need substantially the same evidence as the ATA Plaintiffs.

If the material is relevant to the claims and defenses of the Julin et al plaintiffs,

then it must also be relevant to the cases of Does 1-254, who were also killed by the

FARC during the same time period, since the claims and defenses are based on the same

facts and sound identical when references to the jurisdictional statutes are removed. See

Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss New Actions,

R. 513. The Court has not yet decided whether to dismiss the Doe 1-254 Plaintiffs

claims, which are based on diversity jurisdiction.

Does 1-254 are the legal heirs of persons killed by the FARC in Urabá during the

time period 1987-1999 and need substantially the same evidence as the ATA plaintiffs,

who were also killed by the FARC. Although the ATA and ATS plaintiffs rely on

different jurisdictional bases,2 the two groups of plaintiffs are trying to prove the same set

1 The Court noted that good cause has been found where there is a showing of irreparable harm that can be

addressed by limited, expedited discovery, citing JP Morgan Chase Bank N.A. v. Reijtenbagh, 615 F. Supp.

2d 278 (S.D.N.Y. 2009); Ayyash, 233 F.R.D. at 326-27; where failing to allow expedited discovery would

substantially impact the progress of the case on the court’s docket, citing Sheridan v. Oak St. Mortgage,

LLC, 244 F.R.D. 520, 522 (E.D. Wis. 2007), or where there is a need to preserve evidence that may be

destroyed before it can be obtained by ordinary discovery, citing Monsanto Co. v. Woods, 250 F.R.D. 411,

413 (E.D. Mo. 2008). Id. at 7. 2 The ATA is a statute protecting U.S. citizens from terrorist attacks abroad. The ATS is a statute granting

jurisdiction for violations of international law that touch and concern the territory of the U.S. Now, the


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of common facts. That is, Defendant Chiquita's relationship with the FARC during the

relevant time period,3 including payments made to the FARC, the purpose of the

payments, whether Colombian law enforcement authorities knew of the payments and

considered them to be legal or justifiable, and evidence relevant to Chiquita's defense of

duress. This is all relevant to determining the Defendant's mental state or mens rea, and

knowledge of wrongdoing, regardless of whether the standard is intent, knowledge, or

negligence. It is also relevant to the Defendant's defense of duress. See, e,g., R-927-1 at

6. (evidence of "the FARC’s involvement in extortion") If the Colombian law claims of

Does 1-254 are not dismissed for forum non conveniens, see Defendant's renewed motion

to dismiss, R. 741, Does 1-254 would request substantially the same discovery as is

sought by the ATA Hague Request.

Section 7 of the ATA Hague Request, which sets forth the claims and defenses, is

an equally accurate description of Does 1-254's claims, and need not be modified at all.

It says:

7.

a. Nature of the proceedings (article 3(c))

Civil tort suit for damages.

b. Summary of complaint

Plaintiffs allege that Chiquita Brands International, Inc. (Chiquita)

provided “material support”4 to the Fuerzas Armadas Revolucionarias de

Colombia (FARC) in violation of U.S. law and should be held civilly

Court is considering whether their diversity jurisdiction claims should be dismissed for forum non

conveniens and statute of limitations reasons. We still refer to them as "ATS" cases, although this is no

longer accurate. 3 See R 927-1 at 7. Does 1-254 are suing Defendant Chiquita Brands for incidents occurring between

1987-1999. The ATA Hague Requests for FARC financing cover a time period of 1985-2009. The ATA

Hague Requests for other categories of information specific to the Uraba region cover the period 1989-

1999. 4 Aiding and abetting requires "substantial assistance" which should be indistinguishable from the "material

support" standard in the ATA.


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liable for the FARC’s kidnapping and killing of certain of Plaintiffs’

family members.

c. Summary of defenses

Defendant contends that it is not liable for plaintiffs’ injuries because,

inter alia, the payments that give rise to Plaintiffs’ claims were extorted

by the FARC, Plaintiffs’ injuries were not by reason of Chiquita’s acts,

Plaintiffs have not stated a claim upon which relief can be granted, and

Plaintiffs’ claims are time-barred.

R. 927-1 at 5. The only difference is that while the ATA provides a jurisdictional basis

for the claims of U.S. citizens, the Colombian plaintiffs rely on the diversity jurisdiction

statute, 28 U.S.C. § 1332. The facts supporting the claims and defenses will be the same.

The Doe 1-254 Plaintiffs' need for the evidence should already be clear. Chiquita

claims to have been extorted, and Chiquita's payments to the FARC are not known to the

same degree of detail as its payments to the AUC. If anything, the claims of Does 1-254

should be stronger than those of the ATA plaintiffs, since they are geographically related

to Chiquita's business operations in Uraba, which is relevant to causation or forseeability.

If the ATA Plaintiffs have a substantial need for this evidence from the Colombian

government, so do Does 1-254.

b. There is no prejudice to either Chiquita Brands or to the Government

of Colombia to produce another copy of the discovery.

Does 1-254 are simply asking for a copy of whatever documents the Colombian

government produces. The only burden to anyone will be to produce another set of discs.

Although we believe the ATA Hague Requests to be overly broad, overly focused on

classified information, and unmanageable by a Colombian court, we don't want to disturb

whatever negotiations have occurrred between Chiquita and the ATA plaintiffs, and will


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be glad to receive whatever discovery the other parties have agreed to. Our request is not

burdensome at all.

As explained infra in § c, the Hague Convention request itself is enormously

burdensome. If a Colombian judge somehow agrees to issue all these subpeonas, the

exercise is unlikely to ever be repeated. Since the plaintiffs may only get one bite at the

apple, in terms of securing the cooperation of the Colombian judiciary, they will be

prejudiced if they are not allowed to participate in it, since it will likely result in the loss

of any opportunity to make reasonable requests of the Colombian government. They will

also suffer irreparable harm, although they need not meet the standard for an injunction.

c. The discovery sought from the Colombian government is extremely

burdensome and should not be requested twice.

The ATA Plaintiffs and the Defendant jointly ask the Court to request, through

diplomatic channels, an extremely wide-ranging investigation into what is one of the

most sensitive national security issues in Colombia - the illegal financing of the FARC,

which is considered by both Colombia and the United States to be a terrorist group. The

15 agencies to be subpeona'ed include the Colombian Supreme Court, the Attorney

General, the Colombian National Police, the Minstry of Defense, and others which taken

together include most of the national government of Colombia. The State of Antioquia

and Apartado Mayor's office are also on the list. See ATS Hague Request, R 927-1 at 9-

10. It's not reasonable to ask the Colombian government to go through this twice, if at

all, and particularly due to the nature of the information requested - the funding of a

terrorist group. Anyone funding the FARC is likely to be, or at least should be, the target

of a law enforcement investigation and evidence about this is almost certainly classified,


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or at a minimum, subject to whatever privileges exist in Colombia for law enforcement

investigations.

Conclusion

The Court should grant Doe 1-254's narrowly-tailored request to receive copies of

whatever discovery is produced by the Government of Colombia in response to the ATA

Plaintifffs' Hague Convention request. Good cause has been shown, since the Colombian

government is unlikely to comply with a request like this twice. The information

requested is just as relevant to the cases of Does 1-254 as it is to those of the ATS

Plaintiffs. The prejudice to either the Government of Colombia or to the other parties in

the case is minimal, since Does 1-254 are simply asking for copies of whatever the

Colombian government actually produces.

Respectfully submittted,

/s/ Paul Wolf

_____________________

Paul Wolf, CO Bar #42107

Attorney for Does 1-254

P.O. Box 46213

Denver, CO 80201

(202) 431-6986

fax: n/a

[email protected]

November 8, 2015

Certificate of Service

I hereby certify that, on the 8th of November, 2015, I filed the foregoing

document with the Court's ECF system, which will send electronic copies to all parties

entitled to receive such notice. I further certify that on the same day, I sent a copy of the

foregoing document by email to the following individuals:


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John E. Hall

Shankar Duraiswamy

James Garland

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001-4956

Telephone: (202) 662-6000

Fax: (202) 662-6291

[email protected]

[email protected]

[email protected]

Counsel for Chiquita Brands International, Inc.

Kristi Stahnke McGregor

[email protected]

MILBERG LLP

One Pennsylvania Plaza

New York, NY 10119

(212) 594-5300

Counsel for Pescatore and Sparrow Plaintiffs

Steven M. Steingard

KOHN, SWIFT & GRAF, P.C.

One South Broad Street, Suite 2100

Philadelphia, PA 19107

(215) 238-1700

[email protected]

Counsel for Julin Plaintiffs

/s/ Paul Wolf

___________

Paul Wolf


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