response to chiquita motion fredy rendon herrera

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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

______________________________________________/

DOE PLAINTIFFS' RESPONSE TO

DEFENDANT CHIQUITAS TIME-SENSITIVE MOTION TO MODIFY REQUESTS FOR JUDICIAL ASSISTANCE

The Doe Plaintiffs respresented by Attorney Wolf (hereinafter "Doe Plaintiffs")

join in Chiquita's Motion in part, oppose it in part, and ask the Court to modify the

proposed request for judicial assistance to take the deposition of Fredy Rendon Herrera.1

The Doe Plaintiffs agree that the depositions should be postponed until other

plaintiffs' counsel comply with the Court's May 5, 2015 Order on Discovery. See Order

Sustaining in Part & Overruling in Part Plaintiffs Objections to Defendants Discovery

Requests Regarding Witness Payment Issues, R. 797. Although undersigned counsel

fully complied with the Court's Order, the other counsel did little more than make

objections to what we produced, not even searching for responsive documents. We have

already gotten Mr. Collingsworth to admit to the conspiracy to pay Raul Hasbun, and to

making payments to go-betweens to Salvatore Mancuso, both important AUC

1 The Doe Plaintiffs take no position on the arrangements for the depositions of Jess Ignacio Roldn or

Jos Gregorio Mangones Lugo. We have no knowledge about Mr. Roldn and nothing to contribute to his

deposition. We have already expressed our concerns about Mr. Mangones and would not want to be

involved in taking his deposition.

Case 0:08-md-01916-KAM Document 856 Entered on FLSD Docket 07/26/2015 Page 1 of 8

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commanders. From our perspective, it is not counterproductive to point out these issues,

but a necessary step in the progress of the case.

The judicial request was poorly crafted the first time, and should be modified to

allow for more time. However, it still contains provisions that violate Colombian law, we

will be detailed below, and is vague in apportioning the time between Mr. Simons and

myself. For these reasons, we ask the Court to modify the proposed Request for Fredy

Rendon Herrera as shown in the attached reline version in Exhibit 1,2 and to delay the

Request until Attorneys Collingsworth, Simons and others comply with the Court's May

5, 2015 Order. The Court may also consider whether this can even be decided until

attorney work product issues are resolved by the 11th Circuit and the District Court for

the Northern District of Alabama.

1. The Hague Convention Request to Fredy Rendon Herrera must be modified

to comply with Colombian law.

The Request to take Mr. Rendon's deposition violates Colombian law for a

number of reasons. First, it's a violation of Mr. Rendon's rights to interrogate him outside

of the presence of a judge. Second, it violates his rights to interrogate him in a foreign

language through an interpreter, with an official English record. We have raised these

issues with Mr. Simons and Mr. Hall, who agreed with each other to conduct the

deposition in English and outside of the presence of a Colombian judge. This is a formal

judicial proceeding in Colombia, and the prison in Itagi has procedures for

accomodating it. A Colombian judge is present, and Colombian attorneys enter

appearances. By law, the proceeding must be in Spanish.

2 Changes made to Sections 13 and 15 are indicated in red. This isn't meant to be a final version, which we

can provide at the Court's request.


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Mr. Simons and Mr. Hall want to ask Mr. Rendon questions in English through an

interpreter, and bring a court interpreter from the United States into the prison, to create

an official English language record, and to exclude the Colombian judge. We don't know

if Mr. Rendon has an attorney, but all of this would be highly irregular.

It is in Mr. Rendon's interest to assert his right not to incriminate himself. To the

best of our knowledge, Attorney Collingsworth has not been working with him, and he

has no reason to want to testify. Rendon's plea agreement required him to tell the "whole

truth" in his criminal proceedings, and if he testifies about things he didn't mention

before, a Colombian judge could find that he had not told the whole truth in his criminal

case. The reason we are taking is deposition because of concerns that Rendon will soon

be released from prison after serving the eight year sentence in his plea agreement.

Therefore, we don't think the deposition will produce useful testimony unless it is in a

judicial setting with a Colombian judge. Conducting the deposition in English will result

in the witness misunderstanding the questions to some degree, and introduce ambiguity

and error into the testimony. It's doubtful a Colombian court would allow the deposition

as requested, so the request should be modified to comply with Colombian law.

2. The Doe Plaintiffs represented by undersigned counsel should have an

opportunity to ask questions of Fredy Rendon Herrera.

Mr. Simons has yet to explain why he believes Fredy Rendon Herrera is an

important witness in his case. It appears that Rendon was selected because there has been

media interest and controversy about Rendon's release from prison, which is said to be


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imminent.3 However, Mr. Rendon's role in the case is not obvious and needs

explanation.

Fredy Rendon Herrera was the commander of the Elmer Cardenas Block ("BEC")

of the AUC. The BEC had a territory in Urab that was separate from the Banana Block,

which was comprised of two fronts, the Arlex Hurtado Front led by Raul Hasbun, and the

Turbo Front led by Ever Veloza Garcia ("HH"). The territory of the Banana Block

included the major urban centers of Apartado, Turbo, Chigorodo, and nearby areas. The

Elmer Cardenas Block was formed in Necocli, which is about 15 miles north of Turbo,

and was where the top leadership of the AUC, called the Casa Castao, was based.4

With the assistance of men and arms from Turbo (the BEC had one unit called the

Pedro Ponte front, a reference to Raul Hasbun), Fredy Rendon launched a military

campaign from Acandi to Riosucio, which are on the other side of the Gulf of Uraba in

the Department of Choco. The BEC then controlled the town of Dabeiba,5 where more

than 500 of our cases occurred. The BEC and Banana Block both conducted operations

in bordering areas such as Mutata, where Vicente Castano is said to have lived. In other

words, the BEC operated in areas surrounding the part of Uraba where bananas are

grown. The banana-growing area was controlled by the Banana Block of Hasbun and

Ever Veloza.

3 In Mr. Rendon's case in Colombia, the trial court found that Mr. Rendon had not complied with the terms

of his demobilization agreement and that none of the time he had already served would count against his

eight year sentence. This was reversed on appeal, and Mr. Rendon is currently back in an obviously hostile

trial court. If he is released, he will have to meet with a parole officer on an approximately biweekly basis

for approximately two years, which is how the other AUC members released from prison have been treated. 4 It was no coincidence that Fredy Rendon's brother, "Don Mario" was captured in Necocli. It was the last

stronghold of the BEC, although Don Mario's men gave him up in the end. 5 Mr. Simons and the other plaintiffs counsel do not have a significant number of cases from Dabeiba. It is

a small town where one of my assistants lived.


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Unlike Ever Veloza though, Fredy Rendon has not generally taken responsibility

for the crimes committed by the BEC.6 For this reason, we wrote to the attorney general

of Colombia on Aug. 27, 2014, urging that Mr. Rendon not be released until he confesses

all of his crimes. We believe that one issue is the degree of overlap between the BEC and

members of the Colombian army and police. For example, for many years it has not been

possible to obtain autopsy reports from Medicina Legal, the Colombian government

forensic agency, due to a confidential government investigation. Dabeiba was one of the

FARC's strongholds in Colombia, second only to San Vicente del Caguan. Nevertheless,

no matter how inconvenient the subject, it is important to the victims that the truth be told

about the thousands of murders that occured in their home town of Dabeiba.

Thousands of persons from Dabeiba and nearby towns have filed claims in the

Commission of Justice and Paz, including our nearly all of our clients from Dabeiba. Mr.

Simons and his co-counsel have cases originating in other parts of Colombia. Simons'

team also lacks personal experience interviewing clients affected by the BEC, and insist

on taking Mr. Rendon Herrera's deposition in English, presumably because they are not

able to do so on Spanish. Mr. Simons seeks to exclude me, and my clients, from

participating in this deposition entirely. We have already been prejudiced by the harm

done to Raul Hasbun, who is probably the most important witness in this case. We're

concerned that Mangones Lugo fits the mold of the witnesses in the Drummond case.

My clients have already suffered extreme prejudice from what we view as a RICO

conspiracy among the other plaintiff's counsel, in this case as well as in Dole and

6 I attended a week's worth of Mr. Rendon Herrera's testimony in his criminal case. The Colombian court

erased his answer when I asked him about his brother Don Mario, as I described in my Responses to

Defendant's Interrogatories. R. 771 at 10-11. I would like to follow up on that.


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Drummond. The Court should not allow these attorneys to represent the interests of my

clients, in the Rendon deposition or elsewhere.

3. Witness payment discovery should be produced before the witness

depositions are taken.

We agree with the Defendant that the other plaintiffs' counsel have not complied

with the Court's order and should be compelled to produce discovery material relevant to

payments to witnesses. See Defendant Chiquitas Time-Sensitive Motion to Compel

Compliance with the Courts May 5 Discovery Order, and Request for Expedited

Briefing Schedule. R. 837. As the Court already recognized, the 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. R. 759

at 12.

On July 21, 2015, Marco Simons of Earthrights International produced to me

approximately a dozen documents, which according to Mr. Simons, is the same as what

he produced to Chiquita pursuant to the Court's May 5, 2015 Order. It only took a few

minutes to determine that Simons had not even searched for responsive materials, but

only made objections to what I had produced, and maintains that this is all that is required

of him. His position, and that of the others, is that all of the work done by lawyers in

these firms enjoys blanket work product privilege protection. Simons even asserts my

own privilege, which I have obviously waived, for a series of emails to the chiquita-ats-

all mailing list in which I accuse them of tainting Raul Hasbun as a witness. I also recall

expressing my concerns about Jos Gregorio Mangones Lugo, who is one of the

witnesses is subject to the Request for Judicial Assistance at hand.


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The RICO conspiracy has been known to counsel in the Chiquita case since I

complained about it at a meeting at Cohen Millstein Sellers & Toll in June of 2011, and

then in various emails until I was removed from the group. Unfortunately, I lost all my

email correspondence from this period when my provider icdc.com unexpectedly went

out of business. However, Mr. Collingsworth, Mr. Simons, and the other attorneys

receiving Requests for Production from Chiquita should all have copies of the emails

from this list, as well as any other correspondence they may have had. Mr. Scarola and

Mr. Collingsworth both maintain that the witness payment issue was "resolved"

sometime after they stopped communicating with me, and stress that I do not know how

it was resolved. This implies that they have had further communications on this subject.

Although I was not privy to discovery conversations between Chiquita and the other

plaintiffs, the listserve should be searched for keywords such as witness names, and Mr.

Simons and the others should produce any documents relevant to payments to them.7

Finally the Court should be aware of the context in which Chiquita's discovery

requests for witness payment evidence are occurring. Drummond has two pending

motions for sanctions, and an evidentiary hearing set for September 1-3, 2015, for

Collingsworth's alleged misrepresentations to the court about witness payments and the

number of witnesses paid, and about Collingsworth's alleged spoliation of electronic

evidence. Dole will soon be serving me with a subpeona for the materials that the Court

is now reviewing in camera. Collingsworth has announced plans to take depositions of

about a dozen top level AUC leaders in the Dole case. The witness payments have been

an ongoing problem that requires a more direct intervention from the courts.

7 The Court has not allowed discovery of alleged payments to witnesses in the Drummond and Dole cases,

except perhaps in the case of Mangones Lugo, who testified in the Dole case as well.


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Conclusion

For the foregoing reasons, the Court should grant Chiquita's Motion but amend

the Hague Convention Request for Fredy Rendon Herrera as shown in Exhibit 1. The

Doe Plaintiffs represented herein also nun pro tunc join in Chiquita's Rul 37 Motion to

Compel witness payment discovery.

Respectfully submitted,

/s/

_______________________

Paul Wolf, CO Bar 42107

PO Box 46213

Denver CO 80201

(202) 431-6986

[email protected]

July 26, 2015

Certificate of Service

I hereby certify that on this 26th day of July, 2015, I electronically filed the

foregoing Doe Plaintiffs' Response to Defendant Chiquitas Time-Sensitive Motion to

Modify Requests for Judicial Assistance and Exhibit with the Clerk of Court using the

CM/ECF system which will send notification of such filing to all parties entitled to

receive such notice.

/s/ Paul Wolf

____________________

Paul Wolf


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