chiquita response in support of motion to compel witness payments

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 08-01916-MD-MARRA/JOHNSON

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC., ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION ______________________________________________/ This Document Relates To: ATS ACTIONS 08-80421-CIV-MARRA 08-80465-CIV-MARRA 08-80508-CIV-MARRA ______________________________________________/

DEFENDANT CHIQUITAS REPLY IN SUPPORT OF ITS TIME-SENSITIVE MOTION TO COMPEL

COMPLIANCE WITH THE COURTS MAY 5 DISCOVERY ORDER

Plaintiffs do not deny the disturbing facts that have been revealed by their partial

discovery responses, including that one key paramilitary witness changed his testimony

regarding whether Chiquita was extorted after his agent received thousands of dollars from Mr.

Collingsworth. Nor do they offer any legitimate justification for not complying with this Courts

May 5 Order requiring a complete production of documents related to payments to paramilitaries

or their agents and associates that were made by, offered by, or requested of Plaintiffs counsel.

Instead, Plaintiffs seek to re-litigate issues on which the Court has already ruled including

their meritless objections to producing internal documents and counsel-to-counsel

communications on work product grounds and attempt to obscure their non-compliance by

making frivolous attacks against Chiquita.

Chiquita has an urgent need for the documents that Plaintiffs have improperly withheld

because the depositions of two paramilitary witnesses have been scheduled for August 12 in

Case 0:08-md-01916-KAM Document 845 Entered on FLSD Docket 07/13/2015 Page 1 of 12

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Colombia. See Ex. 42.1 In its April 7, 2015 Order, the Court ruled that Chiquita and the other

defendants should be allowed an opportunity to conduct discovery on the witness payment

issue, under an accelerated schedule, before the paramilitary witnesses are deposed in this case.

(D.E. 759, at 12.) The Courts determination that Chiquita and the other defendants would not

be unfairly prejudiced by permitting plaintiffs to take trial depositions of these witnesses was

premised on the assumption that defendants would have timely receipt of this essential

preliminary discovery bearing upon the witnesses credibility. (Id.) The longer Plaintiffs are

permitted to withhold additional responsive documents compelled by the Courts May 5 Order,

the greater the risk of prejudice to Chiquita.2

I. The Fact Record Underscores Chiquitas Need for Complete Discovery Responses.

Mr. Collingsworth spends the first five pages of his brief arguing that Chiquita has made

four major factual assertions that are objectively false or distorted, but his discussion of

these issues only confirms the accuracy of Chiquitas representations and the critical need for a

complete production of documents on the witness payment issue:

First, Mr. Collingsworth takes issue with Chiquitas statement that, [a]s late as 2012, [he] was paying thousands of dollars to CCA1, Hasbns associate and intermediary, purportedly to arrange meetings with Hasbn and . . . Salvatore Mancuso. (D.E. 844, at 3.) But Mr. Collingsworths response is to admit that he produced a receipt showing that [he] had provided CCA1 with $4,000 for costs associated with arranging meetings with Mancuso and Hasbn. (Id.)

Second, Mr. Collingsworth accuses Chiquita of blatantly misrepresent[ing] the record regarding his discussion[s] with Hasbn about serving as an expert witness or receiving compensation for time spent researching facts because Mr. Collingsworths

1 All exhibits are attachments to the declaration of S. Duraiswamy in support of Chiquitas motion, unless otherwise specified. See D.E. 839 and attachments thereto. 2 Chiquita is also awaiting a ruling from the Court on whether certain responsive documents that have been submitted for in camera review documents produced by Paul Wolf and documents responsive to RFP No. 6 (the script of questions and answers for Mangones Lugo) must be produced in response to Chiquitas discovery requests.


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interrogatory answers had asserted that no agreement was reached and no payment was made. (D.E. 844, at 4.) But Chiquitas motion acknowledged that Mr. Collingsworth claimed no agreement was reached. (D.E. 837, at 12.) Chiquita explained, though, that Mr. Collingsworths statement seemed inconsistent with emails he produced, which suggest that he agreed to provide the requested $200,000 and to retain Hasbns associate, CCA1, as an investigator. (See id.) Mr. Collingsworth has offered no explanation for these emails.

Third, Mr. Collingsworth takes issue with Chiquitas quotation from Paul Wolfs declaration stating that Mr. Collingsworths payments to a security company were funneled to attorneys for paramilitaries. (See D.E. 844, at 4.) However, he does not dispute that Chiquita accurately quoted Mr. Wolfs statement,3 and he does not address whether his payments to a security company were, in fact, passed on to attorneys for paramilitaries (rather than directly to paramilitaries). (See id.)

Fourth, Mr. Collingsworth objects to Chiquitas assertion that three paramilitary witnesses in this case requested payments from him. Yet, his answer to that assertion is, again, to admit that fact. (See id.)

Mr. Collingsworths brief is most notable for what he does not dispute: that Ral Hasbn, a key

paramilitary fact witness, changed his testimony as to whether Chiquita was extorted after Mr.

Collingsworth made payments to Hasbns agent and discussed the potential for additional

substantial compensation. (See Mot., at 11-12.)

Mr. Collingsworth relies upon his own written interrogatory answers as proof of what

actually occurred, but unsubstantiated interrogatory responses, of course, do not obviate the need

for a complete document production. As another federal judge in this Circuit observed, Mr.

Collingsworth has a history of making misstatements regarding his witness-payment activities:

[I]t looks like Mr. Collingsworth might have told the state judge in California [in the Dole case] the same thing he previously told me and that is there were only three instances of witness payments in my [Drummond] cases and each of those involved a security threat to a witnesss family and that was the sole purpose and fact of the payments. If thats true, if he made those representations, we now know that those representations were categorically false.

3 Notably, although Mr. Collingsworth affirmatively uses excerpts from Mr. Wolfs deposition in the Drummond matter to question Mr. Wolfs credibility, Mr. Collingsworth has sought to block the production of the complete transcript, which is currently under in camera review by this Court.


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(Ex. 45, at 10 (emphasis added).) Mr. Collingsworth later admitted that these representations

were false.4 Furthermore, Mr. Collingsworths interrogatory answers in this case have already

proven to be unreliable. They failed to acknowledge, for example, that he made payments to the

agent of a paramilitary witness (Hasbn) to help secure the testimony of another paramilitary

witness in this case (Mancuso) until Chiquita pointed out that a receipt for such a payment was

listed on a privilege log created for a different case against Dole. (See Ex. 9, at 2; Ex. 25.)

II. Plaintiffs Must Produce Internal and Counsel-to-Counsel Communications Responsive to RFP Nos. 1 and 3.

Mr. Collingsworth accuses Chiquita of seeking to drastically broaden the scope of its

discovery requests to include internal documents and counsel-to-counsel communications.

(D.E. 844 at 6-7.) Chiquita is doing no such thing. Chiquitas discovery requests plainly called

for the production of all responsive documents; no exclusion was made for so-called internal

documents or counsel-to-counsel communications. (See D.E. 785-1.)

Mr. Collingsworth claims that he did not understand Chiquitas request to include

internal documents and counsel-to-counsel communications. (See D.E. 844, at 6-7.) But

this excuse is at odds with the record, which shows clearly that (a) Mr. Collingsworth

specifically objected to Chiquitas requests for internal communications between counsel for

Plaintiffs on privilege and work product grounds (D.E. 765, at 3),5 (b) he initially joined in the

4 See Ex. 45, at 10, 12-13 (Plaintiffs need to correct the record in relation to a statement made to this Court in the May 30, 2014 Joint Status Conference Statement[, which] . . . was inaccurate. . . . In fact, more than three witnesses or their families in the Drummond matters have received security assistance as a result of credible threats to the safety of the witness and/or his or her family. Further, Mr. Collingsworth facilitated payments by a third party to another witness Mr. Collingsworth understood the payments were for assistance with legal fees.). 5 Other Plaintiffs counsel likewise objected to producing such documents. See D.E. 770, at 3 (Valencia Plaintiffs); D.E. 772-1, at 3 (Does 1-11 Plaintiffs); D.E. 774, at 16 (Does 1-888 Plaintiffs); D.E. 777-1, at 8 (Montes Plaintiffs).


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ATS plaintiffs privilege log that listed several documents reflecting communications among

ATS plaintiffs counsel,6 and (c) his brief in support of his work product and privilege objections

specifically addressed communications with counsel (D.E. 767, at 1). Given that the Court

overruled these objections as to RFP Nos. 1 and 3 without making any distinction between

internal and external documents and communications (see D.E. 797, at 2, 4), there is no basis for

withholding internal documents or counsel-to-counsel communications.

Mr. Collingsworth and the other Plaintiffs counsel nonetheless seek to re-litigate the

May 5 Order by drawing a false distinction between (a) fact of payment documents and (b)

internal documents and counsel to counsel communications. (See D.E. 844 at 7; see also

D.E. 843 at 8 (attempting to distinguish documentation of witness payments from internal

counsel discussions).) As documents produced in the Drummond matter show, however,

internal and counsel-to-counsel communications can reveal facts about witness payments.

An unredacted portion of an e-mail from the Valencia Plaintiffs counsel to Mr. Collingsworth,

copying all ATS Plaintiffs counsel, requests that he provide details of the expenses incurred to

date that have directly or indirectly benefitted potential witnesses.7 This counsel-to-counsel

communication clearly seeks factual information regarding witness payments, and Mr.

Collingsworths substantive response which has not been produced would presumably

provide such information.

As detailed in Chiquitas motion, the internal documents and counsel-to-counsel

communications that Plaintiffs counsel are withholding could answer several important factual

questions that go to the credibility of paramilitary witnesses in this case, including: (a) whether 6 See D.E. 765-1, at 1 (noting that log [s]upplements the MDL Plaintiffs Joint Privilege Log); D.E. 770-1, at 2-7 (MDL Plaintiffs Group Privilege Log). 7 D.E. 62-5, at 9, in Drummond v. Collingsworth, 11-cv-3695 (N.D. Ala. Oct. 8, 2013).


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and how the payments that were made and considered might influence witness testimony; (b) the

relationship between the witnesses scheduled to be deposed and the other paramilitaries and

agents who were offered payments; (c) which witnesses knew that lawyers were considering

making payments in exchange for testimony; (d) how payments to paramilitary agents, security

companies, and others might be used for the benefit of paramilitary witnesses; and (e) why

certain paramilitary witnesses requested payment from Mr. Collingsworth. (See Mot., at 13.)

In the May 5 Order, the Court drew no distinction between fact of payment documents

and internal or counsel-to-counsel communications. (See D.E. 797, at 2, 4.) And, contrary

to Plaintiffs assertions, the cases on which the Court relied do not draw this distinction either.

In State of N.Y. v. Solvent Chem. Co., 166 F.R.D. 284 (W.D.N.Y. 1996), a party that had retained

a previously-adverse fact witness as a litigation consultant refused, on work product grounds, to

produce documents relating to the facts and circumstances of the witness retention. See id. at

289-91. The court ordered the retaining party to produce, inter alia, all related documents that

may reveal the facts and circumstances surrounding [the witness] retention. Id. at 291

(emphasis added). The court did not distinguish such documents from protected internal

documents or counsel communications; indeed, the court ordered the retaining party to produce

internal notes of conversations with the witness. See id. at 292. The court had no difficulty in

finding that the consulting agreement, and any related documents that may reveal the facts and

circumstances surrounding [the witness] retention . . . are not protected from disclosure under

the work product rule because that rule is intended to protect the privacy of litigants and their

representatives only insofar as their conduct does not erode the integrity of the adversary

process. Id. at 289.


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Plaintiffs also point to the Courts sustaining their objection to RFP No. 2, which seeks a

narrow category of documents concerning discussions of the propriety of witness payments.

(See D.E. 842, at 4; D.E. 843, at 8; D.E. 844, at 7-8.) But this ruling does not justify a wholesale

refusal to produce any internal or counsel-to-counsel communications in response to RFP

Nos. 1 and 3, where such documents may reveal factual information regarding payments that

were made, offered, or requested. Indeed, Mr. Collingsworth concedes that documents falling

within RFP No. 2 are only an example of the documents that he is withholding. (See D.E. 844

at 7-8.)8 Unless the claimed-protected documents fall solely within the scope of RFP No. 2,

Plaintiffs should produce them within 72 hours.9 At a minimum, and in the alternative, the Court

should require production of claimed-protected documents to the Court for review in camera and

simultaneous logging of the documents for Chiquita.10

8 Counsel to the Valencia Plaintiffs notes that he is aware of one responsive document that does not fall within the scope of RFP No. 2, but appears to express uncertainty as to whether any other responsive documents exist. See D.E. 842, at 4-5. It is inexcusable that more than two months after this Court overruled their objections to RFP Nos. 1 and 3, and despite multiple follow-up communications from Chiquita, the Valencia Plaintiffs have not endeavored to determine which documents in their possession, custody, and control are responsive to those requests. 9 Plaintiffs may redact portions of responsive documents that fall within the scope of RFP No. 2. 10 Although the Local Rules do not require logging of work product material created after commencement of the action (L.R. 26.1(g)(3)(C)), they do not, and cannot, bar the Court from ordering such a log in these unique circumstances where the very subject of discovery is the activity of Plaintiffs counsel after filing suit and where those actions were admittedly discussed at a meeting by Plaintiffs counsel in this action. See D.E. 759, at 12; cf. Stern v. OQuinn, 253 F.R.D. 663, 689 (S.D. Fla. 2008) (stating that L.R. 26.1(g)(3)(C) applies in most cases and reflecting previous invitation to plaintiff to distinguish this case from the norm . . . to exempt this case from the constraints of a strict application of the text of the local rule). If the Court determines that logging each document is unduly burdensome, the Court should at least require Plaintiffs to create a categorical log of the documents to provide Chiquita some understanding of the number of documents, the time periods they cover, the authors and participants in any communications including who is considered counsel, the subject of the communications, and the basis for withholding the documents.


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III. Mr. Collingsworth Continues to Withhold Information Regarding Missing E-mails.

Mr. Collingsworth does not dispute that there are gaps in his e-mails that he had not

previously disclosed to Chiquita. (See D.E. 844, at 11.) Instead, despite his representation to a

California court that he has retained a forensic expert, who has prepared two detailed reports . . .

[that] have been submitted to the Special Master and the federal district judge in the Drummond

case (Ex. 45, at 14), he now claims that he intend[s] to retain a top computer forensic expert to

assess the gaps in his e-mails (D.E. 844, at 11). One of these statements must be false. And

although Mr. Collingsworth complains that he did not have an opportunity to confer with

Chiquita about this issue, he remains unwilling, twelve days after Chiquita filed its motion, to

state whether he will produce the forensic reports (see infra, at 10). The Court should therefore

order him to provide any information that would clarify the extent of his loss of e-mails,

including any forensic reports.

IV. The Does 1-11 Plaintiffs Must Provide a Complete Answer to Interrogatory No. 6.

The Does 1-11 Plaintiffs readily admit that they have withheld the identities of persons

with a financial stake in the action, which are requested by Interrogatory No. 6, based on

objections which the Court overruled.11 Now that Chiquita has pointed out this non-compliance

to the Court, the Does 1-11 Plaintiffs belatedly seek reconsideration of the Courts Order,

attempting to re-litigate whether Chiquita really needs the information and citing purported

safety concerns. (See D.E. 843, at 5-7.) Chiquita needs to know the individuals who have a

financial stake in the ATS litigation in the event their names surface on responsive witness-

payment documents or in deposition testimony. And these Plaintiffs broad, non-particularized 11 See D.E. 843, at 1 (With respect to all but one of the requests that Chiquita references, the Doe 1-11 [] Plaintiffs and their counsel do not believe they have withheld any responsive information. (emphasis added)); id. at 5, n.1 (stating that Plaintiffs had raised their objection to producing this information with the Court); D.E. 797, at 10.


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statements of fear of violence do not even begin to approach the requisite good cause standard

for protection,12 particularly given that other plaintiffs counsel have provided the requested

information.13 Nevertheless, Chiquita is willing to keep such information confidential among its

attorneys until (a) the parties reach an alternative agreement or (b) the Court orders otherwise

upon further motion of a party. (See Ex. 5 (similar agreement with Mr. Collingsworth).)14

V. Chiquita Satisfied Its Procedural Obligations.

As detailed below, Plaintiffs assertions that Chiquita failed to comply with certain

procedural requirements are meritless.

Plaintiffs complain that Chiquita has failed to comply with Local Rule 26(i)(2), but that rule is inapplicable because Chiquitas motion was brought under Rule 37(b) for failure to comply with a prior discovery ruling. The Court went through the exercise contemplated by Local Rule 26(i)(2) reviewing verbatim discovery requests and objections, and each parties justifications for their positions prior to issuing the May 5 Order.

Mr. Collingsworths assertion that Chiquita sought to confer only about certain redactions in his document production, and not on his broad withholding of documents on work product grounds, is flatly untrue. Upon reviewing Mr. Collingsworths document production, defense counsel noted in a May 27 letter that the production included only external communications and asked whether Plaintiffs counsel was continuing to withhold documents on work product or privilege grounds. (See Ex. 9 at 2-3 ( 3).) In response, Mr. Collingsworths co-counsel confirmed that they were refusing to produce internal documents and communications as work product. (See Ex. 10 at 2.) Defense counsel subsequently advised Mr. Collingsworth that it appeared that the parties had reached an impasse on the issue, a statement to which Mr. Collingsworth did not object. (See Ex. 14.)

12 See, e.g., Ekokotu v. Fed. Exp. Corp., 408 F. Appx 331, 336 (11th Cir. 2011) (stating that good cause is met by particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements). 13 See Ex. 11, at 14 (Plaintiffs represented by Mr. Collingsworth); D.E. 801-1 & 801-2 (Valencia Plaintiffs); D.E. 94, at 13, in 10-cv-80652 (Plaintiffs represented by Mr. Wolf). 14 Despite conceding their non-compliance with the Courts Order and responding to Chiquitas earlier follow-up request by telling defense counsel to [t]ake it to the Court, counsel for the Does 1-11 Plaintiffs now chides Chiquita for failing to accommodate their stubborn non-compliance by making this unilateral concession before filing its motion. See Ex. 15, at 5.


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The Does 1-11 Plaintiffs counsels complaint that Chiquita failed to fulfill its meet-and-confer obligations is also baseless. After an initial written exchange regarding the deficiencies in the Does 1-11 Plaintiffs discovery responses, defense counsel requested a telephone call to discuss the very issues that are raised in Chiquitas motion. (See Exs. 3, 15.) But Plaintiffs counsel refused to engage in further discussions unless Chiquita answered a series of interrogatory-style fact questions and set forth its position on certain case-wide discovery issues. None of these issues had any bearing on the concerns that Chiquita had raised regarding the sufficiency of plaintiffs discovery responses, and Chiquita was under no obligation to address them because the Court has suspended Rule 26(f) obligations and stayed discovery subject only to the limited discovery authorized in response to Plaintiffs requests for expedited depositions until the resolution of motions to dismiss. (See Ex. 15.) That Plaintiffs counsel nonetheless insisted that Chiquita address these unrelated issues as a price for agreeing to confer about its discovery responses is proof of its own intransigence, not Chiquitas.

Finally, Mr. Collingsworths complaint that Chiquita did not provide him with sufficient time to confer regarding the gaps in his email production is belied by his subsequent conduct. After learning of Mr. Collingsworths statement to the Dole court that he has secured two forensic reports regarding substantial gaps in his email retention a fact that Mr. Collingsworth never disclosed to Chiquita defense counsel emailed Mr. Collingsworth on the afternoon of July 1 and asked him simply to state by the end of the day whether he would provide the completed reports. Having received no response, and given the urgency created by the scheduling of the paramilitary depositions, Chiquita filed its motion just before midnight on July 1. After Mr. Collingsworth protested in his opposition that he did not have an opportunity to confer on this issue, Chiquita inquired again, on July 10, about whether he was willing to produce the reports and offered to discuss the issue by phone. In subsequent communications, Mr. Collingsworth remains steadfast in his refusal to answer the simple question of whether he will produce the forensic reports. Although he has offered to confer on this issue in lieu of litigating it, he has refused to commit to doing so in a timely manner so that the issue can be fully addressed before the depositions scheduled for August 12. See Decl. of S. Duraiswamy, July 13, 2015, Ex. A.

Chiquita has not breached any rules while patiently seeking to confer with Plaintiffs

counsel over several weeks regarding their failure to meet Court-ordered discovery obligations.

It is Plaintiffs counsel who have stubbornly refused to comply with those obligations.

Conclusion

For the foregoing reasons, and those outlined in Chiquitas motion, the Court should

grant Chiquitas motion to compel and order the relief sought therein.


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Dated: July 13, 2015 Respectfully submitted,

John E. Hall Shankar Duraiswamy Jos E. Arvelo COVINGTON & BURLING LLP One CityCenter 850 Tenth St. NW Washington, D.C. 20001 Telephone: (202) 662-6000 Fax: (202) 662-6291 Jonathan M. Sperling COVINGTON & BURLING LLP The New York Times Building 620 Eighth Avenue New York, NY 10018 Telephone: (212) 841-1000 Fax: (212) 841-1010

/s/ Robert W. Wilkins_____________ Sidney A. Stubbs (Fla. Bar No. 095596) Robert W. Wilkins (Fla. Bar No. 578721) [email protected] JONES, FOSTER, JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, Florida 33401 Telephone: (561) 659-3000 Fax: (561) 650-0412 Counsel for Chiquita Brands International, Inc. and Chiquita Fresh North America, LLC


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I electronically filed the foregoing document with the

Clerk of the Court using CM/ECF on this 13th day of July, 2015. I also certify that the foregoing

document is being served this day on all counsel of record registered to receive electronic

Notices of Electronic Filing generated by CM/ECF, and in accordance with the Courts First

Case Management Order (CMO) and the June 10, 2008 Joint Counsel List filed in accordance

with the CMO.

By: /s/ Robert W. Wilkins

Fla. Bar No. 578721


chiquita response in support of motion to compel witness payments

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