Chiquita Second Motion to Compel Discovery of Witness Payment Evidence

8/17/2019 Chiquita Second Motion to Compel Discovery of Witness Payment Evidence

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

Case No. 08-01916-MD-MARRA

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

ALIEN TORT STATUTE ANDSHAREHOLDER DERIVATIVE LITIGATION ______________________________________________/

This Document Relates To:

ATS ACTION ______________________________________________/

08-80465-CIV-MARRA

DOES (1-144), et al.,

Plaintiffs,v.

CHIQUITA BRANDS INTERNATIONAL,INC., et al.

Defendants. ______________________________________________/

DEFENDANT CHIQUITA’S SECOND MOTION TO COMPEL COMPLIANCEWITH THE COURT’S ORDERS ON WITNESS-PAYMENT DISCOVERY

Case 0:08-md-01916-KAM Document 1080 Entered on FLSD Docket 04/27/2016 Page 1 of 21


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INTRODUCTION

Defendants Chiquita Brands International, Inc. and Chiquita Fresh North America

LLC (collectively “Chiquita”) respectfully move the Court, pursuant to Federal Rule of Civil

Procedure 37(b), for an order compelling Plaintiffs’ counsel, Terrence Collingsworth and Conrad

& Scherer (“C&S”) (collectively “Plaintiffs’ Counsel”), to comply with two orders issued by the

Court in 2015 requiring Plaintiffs’ Counsel to produce to Chiquita documents regarding

payments to witnesses in this case that Plaintiffs’ Counsel have improperly withheld. The Court

ordered this discovery to enable Chiquita to prepare for the preservation depositions of three

paramilitary witnesses — two of which have still not occurred — that the Court has authorized

the ATS plaintiffs to take prior to the opening of fact discovery. Yet, nearly one year after the

Court first ordered this discovery, Plaintiffs’ Counsel continue to withhold highly relevant

documents regarding their efforts to influence the testimony of paramilitary witnesses in this

case.

Specifically, Plaintiffs’ Counsel have refused to produce documents regarding

payments to Iván Otero, the agent and associate of at least two paramilitary witnesses in this

case, even though the Court has twice overruled Plaintiffs’ objections to Chiquita’s requests for

such documents. Otero is a central figure in Plaintiffs’ Counsel’s efforts to pay paramilitary

witnesses in various cases around the country. As one federal court has observed, there is a

“staggering” amount of evidence connecting Otero to these witness-payment schemes. (Ex. 1, at

29; see also id. at 28-30.)1 Indeed, just three months ago, Otero offered money to a paramilitary

witness to testify falsely in Plaintiffs’ Counsel’s long-running lawsuit against Dole Food

1 All exhibits cited herein are attached to the Declaration of Eric Hellerman (“Hellerman Decl.”),attached hereto.



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Company (the “ Dole Action”).2 (See Ex. 2, at ¶ 6.) After this misconduct was brought to light,

the Dole Action was dismissed with prejudice. (See Ex. 3.)

Although Plaintiffs’ Counsel have improperly attempted to conceal this evidence

from Chiquita, documents from the public record in the Dole Action reveal that Otero is deeply

involved in witness payment efforts in this case as well:

• A document from the Dole Action that was never produced to Chiquita shows thatPlaintiffs’ Counsel circulated an email among themselves referencing “$58,800 toIván Otero for Chiquita, Dole and Drummond Kids.” (Ex. 4.) Plaintiffs’ Counselhave admitted that around the same time, José Mangones Lugo (“Mangones”), one ofthe paramilitaries whose deposition has been ordered by the Court but has not yet been scheduled, requested financial assistance from Otero for his daughter’s

education. (See Ex. 5, at 12.)

• A 2012 memo from Lorraine Leete to Terry Collingsworth (the “Leete Memo”)indicated that the paramilitary witness Edwar Cobos Téllez (“Cobos”) had requestedor was offered an unknown sum to serve as an “expert” witness against Chiquita.(See Ex. 6, at ¶ 4.) Plaintiffs’ Counsel had produced the Leete Memo to Chiquita, butthe section referencing the potential payment to Cobos was improperly andinexplicably redacted. (Compare id. with Ex. 7, at ¶ 4.)

• Another section of the Leete Memo that was improperly redacted shows that Otero

was the intermediary through whom Plaintiffs’ Counsel attempted to broker a dealwith the attorney for Raúl Hasbún, a key paramilitary witness in this case, for Hasbúnto be paid as an “expert” witness against Chiquita. (Compare Ex. 8 with Ex. 7, at ¶1.) During those negotiations, Plaintiffs’ Counsel promised Hasbún at least$200,000. (See Ex. 9.) Hasbún, who had previously testified that Chiquita wasextorted by the AUC, subsequently changed his testimony and claimed that Chiquita paid the AUC voluntarily. (See D.E. 837, at 11.)

• A third portion of the Leete Memo that was improperly redacted shows that Cobosintroduced Otero to the attorney for Salvatore Mancuso, yet another paramilitarywitness in this case. (Compare Ex. 6 with Ex. 7, at ¶ 4.) Plaintiffs’ Counsel havealready admitted to paying at least one attorney (Jarley Maya Sánchez) to arrange ameeting with Mancuso. (See Ex. 5, at 9.)

Plaintiffs’ Counsel’s refusal to produce documents related to Otero and improper

use of redactions to conceal responsive information are flagrant violations of this Court’s prior

2 Juana Perez 1A v. Dole Food Co., No. BC412620 (Cal. Super. Ct.).



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rulings. They also reflect Plaintiffs’ Counsel’s broader pattern of discovery abuses related to

evidence of their witness payments. This misconduct has led one federal court to apply the

crime-fraud exception to Plaintiffs’ Counsel’s work product claims and caused the Dole court to

sanction Plaintiffs’ Counsel in the amount of $48,000 (see Exs. 1 & 33). This Court should also

firmly reject Plaintiffs’ obstructionist and evasive discovery tactics.

Chiquita respectfully requests that the Court enter an order compelling

compliance with its discovery rulings and sanctioning Plaintiffs’ Counsel for their repeated

violations of the Court’s prior Orders. The Court should direct Plaintiffs’ Counsel to (i) produce,

within 72 hours, all documents related to the fact of potential payments to Otero, including

payments offered, considered, or requested, (ii) produce, within 72 hours, unredacted versions of

documents that were impermissibly redacted, (iii) preserve all documents and files related to

potential payments to witnesses and their agents, relatives, and associates, and (iv) reimburse

Chiquita’s fees and costs in preparing and litigating this motion.

BACKGROUND

Despite Chiquita’s diligent and painstaking efforts over the past year, Plaintiffs’

Counsel still have failed to comply with two separate Orders issued by the Court, in May and

August of 2015, requiring them to produce, with limited exceptions, all documents concerning

the fact of payments (including payments made, offered, considered, or requested) to witnesses

in this case, or to their agents, associates, and relatives. On several occasions since August,

Plaintiffs’ Counsel have purported to satisfy their discovery obligations with small supplemental

productions and amended written discovery responses. Each time, however, Chiquita’s review

of the supplemental responses, along with publicly available documents from other cases,

revealed several gaps in the productions and disproved prior representations made by Plaintiffs’

Counsel regarding their responses. And each time, rather than rushing to seek judicial



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intervention, Chiquita patiently attempted to resolve the outstanding deficiencies by writing

detailed follow-up letters, participating in meet-and-confer sessions, and agreeing to Plaintiffs’

Counsel’s repeated requests for additional time to address Chiquita’s concerns. Throughout this

process, however, Plaintiffs’ Counsel have dragged their feet, concealed important facts and

documents, and made outright misrepresentations regarding the material that they were

withholding.

A. Chiquita’s Document Requests and The Court’s Orders OverrulingPlaintiffs’ Counsel’s Objections

On April 7, 2015, the Court granted certain ATS Plaintiffs’ request for leave to

take the depositions of paramilitary witnesses Jesús Roldan Pérez, José Mangones Lugo, and

Freddy Rendón Herrera. At the same time, the Court permitted Chiquita to take discovery of all

ATS Plaintiffs regarding their involvement in “a witness-payment scheme, in light of allegations

. . . against Attorney Terrence Collingsworth . . . [that he was] making unlawful payments to

Colombian paramilitary witnesses.” (D.E. 759, at 10, 19.) Shortly thereafter, Chiquita served

requests for production of documents and interrogatories on all Plaintiffs’ counsel. (See D.E.

785-1.) Request for Production (“RFP”) Nos. 1 and 3 sought documents regarding anything of

value (i.e., “Payments”) offered to, given to, considered for, or requested by witnesses in this

case, or their agents, relatives, and associates.3 On May 5, 2015, the Court issued an Order (the

3 RFP No. 1 requests “[a]ll Documents regarding any Payment by, on behalf of, or at the requestof Plaintiffs’ Counsel for the benefit of any Witness or any Agent, Relative, or Associate of sucha Witness. This Request includes without limitation Documents concerning Payments offered,considered, or requested, but not made.”

RFP No. 3 requests “[a]ll Documents relating to Payments by, on behalf of, or at the request ofany Plaintiffs’ Counsel to any Paramilitary, or to Agents, Relatives, and Associates of anyParamilitary, that Plaintiffs or Plaintiffs’ Counsel have produced or received in connection withany legal proceeding or investigation. This Request includes without limitation (i) all Documents produced in response to document requests or subpoenas relating to Payments by, on behalf of,or at the request of Plaintiffs’ Counsel to Paramilitaries in Drummond Co., Inc. v. Collingsworth,(continued…)



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“May 5 Order”), overruling several of Plaintiffs’ objections, including all work product

objections to RFP Nos. 1 and 3.

Despite the Court’s ruling, Plaintiffs’ Counsel continued to withhold responsive

documents and information. On July 1, 2015, Chiquita filed a motion to compel compliance

with the Court’s May 5 Order with respect to RFP Nos. 1 and 3. (See D.E. 837.) On August 4,

2015, the Court issued an order (the “August 4 Order”) granting the motion and reiterating that,

with respect to RFP Nos. 1 and 3, the Court had “previously OVERRULED all work product

privilege objections in their entirety.” (D.E. 872, at 2.) The Court directed Plaintiffs’ Counsel

to produce to Chiquita “a complete set of responsive documents,” including “all responsive

materials that contain any information regarding the fact of payments made to potential fact

witnesses in this case” because, among other things, the work product doctrine does not apply to

shield those documents. (D.E. 872, at 2-3.) The only exceptions were for portions of (a)

“internal communications between counsel which relate to the propriety of fact witness

payments” or (b) documents concerning “other topics unrelated to the fact of [] witness payments

[that] are purportedly protected by work product or [the] common interest privilege.” ( Id. at 3-

5.) Plaintiffs’ Counsel were permitted to redact such information provided that they

simultaneously submitted unredacted versions to the Court for in camera review. (See id.)

Case No. 2:11-cv-3695-RDP (N.D. Ala.) and in Gómez v. Dole Food Co., Inc., Case No.BC412620 (Superior Court of the State of California, County of Los Angeles); and (ii) fulltranscripts of any deposition taken in the Drummond and Gómez cases in which there is anyreference to such Payments.” Ex. 26, at 11-12. The Court’s May 5 Order sustained Plaintiffs’objections to RFP No. 3 “to the extent the request is directed to the issue of witness payments toother persons in other litigation who are not prospective witnesses in this case.” D.E. 797, at 4.Effectively, that Order replaced the term “Paramilitary” in RFP No. 3 with “Witness.”



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B. Plaintiffs’ Counsel’s Continued and Ongoing Failure to Comply with theCourt’s Rulings

1. Plaintiffs’ Counsel’s Deficient Supplemental Productions in August 2015and December 2015

Following the August 4 Order, on August 6, 2015, Plaintiffs’ Counsel produced

47 new documents and 11 documents that had been previously redacted. However, the

production was almost completely devoid of email communications among Plaintiffs’ Counsel

that one would have expected to exist based on the limited information Plaintiffs’ Counsel had

supplied. For example, although Plaintiffs’ Counsel admitted in their interrogatory answers that

numerous paramilitaries requested money or like assistance from them or from Otero, no

documents reflecting those requests were produced. (See Ex. 10, at 11-12 (requests from

paramilitary witnesses Mangones and Jairo Samper Cantillo (“Samper”)).) On October 2, 2015,

Chiquita inquired with Plaintiffs’ Counsel about this apparent deficiency, among others (see Ex.

11, at ¶ 4). Plaintiffs’ Counsel initially balked at producing additional documents on work

product grounds — even though the Court had expressly overruled those objections — before

agreeing, on November 13, 2015, to supplement their production. (Ex. 12, at ¶ 4]; Ex. 13, at ¶

1.)

Over a month later, on December 24, 2015, Plaintiffs’ Counsel produced 46 more

responsive documents. Based on a careful review of these additional documents, Plaintiffs’

Counsel’s various discovery responses, and documents from the Dole Action, Chiquita noted that

Plaintiffs were continuing to withhold several categories of responsive material, including, inter

alia, documents (1) evidencing payments to Otero, whom Plaintiffs’ Counsel had by then

identified as having a relationship with a witness in this case, (2) regarding payment requests

from paramilitary witnesses Córdoba (one of Otero’s clients) and Samper, requests that

Plaintiffs’ Counsel had by then acknowledged in interrogatory answers, and (3) internal



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documents related to payments to paramilitary witnesses Mancuso and Mangones that Chiquita

had identified from a privilege log that Plaintiffs’ Counsel had filed in the Dole Action. (See Ex.

14, at ¶¶ 2, 5, 7, 14.) Additionally, Plaintiffs’ Counsel had redacted approximately 14 of the 46

documents without explanation, including the entire body of the Leete Memo. See supra, at 2

(describing key details of the Leete Memo). Based on a filing in the Dole Action, Chiquita

understood at the time that the Leete Memo “discuss[ed] a link between Otero and the payment

negotiations with Jarley Maya Sánchez and Raúl Hasbún” and was therefore clearly responsive.

Ex. 15, at 3 (describing June 15, 2012 memorandum from IRAdvocates attorney, Lorraine Leete,

to Collingsworth, with subject “6/15/2012 Meeting with Ivan Notes”).

2. Plaintiff’s Counsel’s Misrepresentation Regarding the Leete Memo and Deficient February 2016 Production

On January 19, 2016, Chiquita brought these issues to Plaintiffs’ Counsel’s

attention. (See Ex.14.) On February 8, 2016, Plaintiffs’ Counsel agreed to produce certain

additional documents, or portions thereof, related to witnesses Córdoba, Samper, Mangones, and

Mancuso, provided that Chiquita agreed to keep them confidential. (See Ex. 16, at ¶¶ 2, 5.)

They refused, however, to produce documents regarding payments to Otero, even though it had

been clearly established by that point that Otero was an agent and associate of paramilitary

witnesses in this case. (See id. at ¶¶ 4, 7, 12.)

Even more egregiously, Plaintiffs’ Counsel represented to Chiquita that the

material redacted in the Leete Memo was unrelated to “facts about Mr. Maya Sánchez,”

Hasbun’s attorney. (See id. at ¶ 6.) However, Chiquita had by then obtained a lesser redacted

version of the document that Plaintiffs’ Counsel had publicly lodged in the Dole Action, and that

version showed that the redacted material did contain facts about payments made to Maya

Sánchez — apparently through Otero — as well as other responsive information concerning



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Otero and paramilitary witnesses that Plaintiffs’ Counsel were not entitled to redact.

Specifically, Plaintiffs’ Counsel had improperly redacted the following:

1. Jarley [Maya Sánchez]: He is ok with reaching an agreement through Iv[án

Otero], but he wants it in writing, and he does not want it contingent on success ofcase. He is firm on his demand for $250K. Jarley said [he] won’t even talk toHasb[ú]n again until he has a serious deal with Iv[án]. I told Iv[án] again aboutthe circular problem we have with this, since our finance/ethics people wanted tomeet with Hasb[ú]n before they reached a decision, but Iv[án] said that Jarley wasfirm on that as well. . . . Jarley wants to meet with Iv[án] in next two weeks,hopefully in the week of 6/25 with a follow up plan.…

4. Edwar Cobos Téllez, alias Diego Vecino, who was commander of the Montesde Maria Block of the AUC (and who put Iv[án] in contact with Mancuso’s

lawyer), is willing to serve as expert witness on AUC.…

7. Chiquita clients: 57 & Lucho — need 50K USD for security — Lucho will notsign declaration until this happens.

(Ex. 6.)

All three paragraphs are responsive to Chiquita’s requests and fall squarely within

the scope of discovery required by the Court’s Orders because they concern facts about payments

to witnesses in this case, or their agents and associates (including payments that were offered,

considered, or requested). When Chiquita confronted Plaintiffs’ Counsel about their

misrepresentation regarding the Leete Memo (see Ex. 17, at ¶ 6), Plaintiffs’ Counsel agreed to

produce a less-redacted version of the document to Chiquita in exchange for Chiquita’s

agreement to keep that version confidential. (See Ex. 18, at ¶ 6.) The document was produced

on February 29, 2016, along with 28 other responsive documents that Plaintiffs’ Counsel had

previously withheld. Although paragraphs 1 and 7 of the Leete Memo were unredacted,

Plaintiffs’ Counsel refused to unredact paragraph 4. (See Ex. 7.) Plaintiffs’ Counsel also



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continued to make other unexplained redactions and maintained their refusal to produce

documents regarding Otero.

C. Plaintiffs’ Counsel’s Broader Pattern of Misconduct Regarding Discovery

Into Witness Payments

Plaintiffs’ Counsel’s non-compliance with the Court’s discovery rulings is part of

a larger pattern of obstructionist tactics designed to conceal the facts regarding their improper

efforts to pay witnesses for their testimony in cases against Drummond, Dole, and Chiquita. For

example, Plaintiffs’ Counsel have made “categorically false” statements to other courts about the

number of Colombian witnesses that have received payments — and admitted as much. (Ex. 19,

at 12-13 ( Drummond court observing that Mr. Collingsworth’s representations to the Dole court

regarding the number of witnesses who had received security payments and the purpose of those

payments were “categorically false”); see also Ex. 20, at ¶¶ 10-12 (Collingsworth conceding that

his multiple statements regarding “security payments” to witnesses’ families “were inaccurate

and . . . wrong”).)

On other occasions, Plaintiffs’ Counsel have also attempted to shield the identity

of a fact witness by labeling him as a “consulting expert”4 and produced new documents

showing monthly payments to two additional paramilitaries after claiming for years that they had

produced all responsive information related to witness payments. (See generally Ex. 1, at 1, 8-

17; Ex. 21, at 275:18-21.) Mr. Collingsworth’s recent attempts to explain his misconduct were

found by the Drummond court to be “uncreditable and insufficient” — even bordering on

“comedic.” (Ex. 1, at 2.) Likewise, the Dole court has repeatedly admonished Mr.

4 See Ex. 28 (ordering Collingsworth to provide identity of “consulting expert” to Dole); Ex. 29(denying Collingsworth’s petition for writ of mandate on this issue and stating that “[t]here issubstantial evidence the alleged ‘consulting expert’ is in fact a person with personal knowledgeof the facts who has been paid significant sums to find witnesses.’”).



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Collingsworth for his discovery abuses. (See Ex. 21, at 88:20-22 (“I have a lot of

disappointment about your not complying with my orders[.]”); Ex. 22, at 27:14-18 (“You can be

forthcoming with the information that I’ve already ordered that you produce. . . . You know, it’s

a problem.”).)

ARGUMENT

I. The Court Should Order Plaintiffs’ Counsel to Produce Responsive DocumentsRelated to Iván Otero.

Documents relating to “Payments” to Ivan Otero — including payments made,

considered, offered, or requested — are responsive to RFP Nos. 1 and 3 because Otero is both

the “Agent” and “Associate” of multiple “Witnesses” in this matter.5

Otero is a Colombian attorney with whom Plaintiffs’ Counsel have been working

since at least 2008. (See Ex. 23, at ¶ 5.) Plaintiffs’ Counsel previously stated that they engaged

Otero as co-counsel in this action as early as 2012 (see Ex. 24, at ¶ 51), though they have

recently claimed that they are only now “in the process of formalizing a co-counsel relationship”

with Otero (Ex. 5, at ¶ 5). Despite their long-standing relationship with Otero and earlier

representations to the contrary (see, e.g., Ex. 12, at ¶ 10), Plaintiffs’ Counsel revealed for the first

time in November 2015 that Otero had served as an attorney for a witness in this case — Edgar

5 The definition set out in Chiquita’s requests for “Payment” is “the offer, promise, suggestion,delivery, provision, giving, transfer, Communication, or transmission of any kind of anything ofvalue whatsoever, whether monetary or non-monetary, directly or indirectly (through anyintermediary or set of intermediaries), including money, property, gifts, an attorney, attorneys’fees, or Assistance of any kind, for any purpose whatsoever, including security. The term alsoincludes any payments made at the direction, suggestion, or request of any Witness, regardless ofthe recipient.”

The definition for “Agent” is “agent, employee, officer, director, attorney, counsel, independentcontractor, consultant, investigator, representative, or any other Person acting at the direction oron behalf of another.”

The definition for “Associate” is “friends, acquaintances, neighbors, contacts, intermediaries,and attorneys (whether or not acting on behalf of the witness).” Ex. 26, at 6, 8, 10-11.



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Córdoba Trujillo (see Ex. 13, at ¶ 10). This was the first time that Otero was identified to

Chiquita as an Agent and Associate of a witness in this case. Around the same time, it was made

public via the lodging of the Leete Memo in the Dole case, that Otero was also an Associate of

another witness in this case, Edwar Cobos Téllez. (See Ex. 6, at ¶ 4 (indicating that Cobos had

put Otero in touch with the attorney for another witness in this case, Mancuso).) Because it is

now well-established that Otero is an Agent and/or Associate of at least two witnesses in this

case, Chiquita is entitled to documents regarding Payments to Otero, pursuant to RFP Nos. 1 and

3 and the Court’s prior Orders.

Even the limited information that Chiquita has obtained thus far regarding Otero’s

role in this case makes clear that documents regarding payments to him are highly relevant to

this case — particularly to the deposition of Mangones, which has been authorized by the Court

and could be scheduled by the Colombian authorities at any time. Plaintiffs have already

conceded that Mangones (along with Samper, another paramilitary witness in this case)

requested payments from Otero in 2013 or 2014. (See Ex. 5, at 12-13.)6 There is strong

evidence that Otero did, in fact, satisfy Mangones’ request. According to Plaintiffs’ Counsel,

Mangones had asked for money for his daughter’s university studies (id .), and an email publicly

lodged in the Dole Action indicates that Plaintiffs’ Counsel paid “$58,800 to Ivan Otero for

Chiquita, Dole and Drummond Kids.” Ex. 4 (emphasis added). Documents concerning

6 Because of these requests, Otero is also arguably an Associate of these two witnesses as well.When confronted with these examples at a recent meet and confer session, Plaintiffs’ Counseltook the position that these requests for payments were akin to someone approaching a strangeron the street for money. However, Plaintiffs’ Counsel also stated that Mangones had approachedOtero because Mangones had somehow ascertained the connection between Otero andCollingsworth, and had thus made the request to Otero for him to pass on to Collingsworth. (SeeHellerman Decl., at ¶ 2.) This admission, of course, confirms that it was common knowledgeamong paramilitary witnesses in this case that Plaintiffs’ Counsel were engaged in payingwitnesses for testimony.



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payments to Otero could reveal more information about these transactions, including whether

Mangones has been influenced to testify against Chiquita based on payments made for the

benefit of his daughter. Chiquita is certainly entitled to receive such material before Mangones’

deposition in this case.

Beyond the implications for the Mangones deposition, documents regarding

payments to Otero may reveal information about numerous other potential transactions with

paramilitary witnesses in this case. As shown by Exhibit 6, Otero was directly involved in the

negotiations between Plaintiffs’ Counsel and Raul Hasbun, a key paramilitary witness who

changed his testimony about Chiquita after engaging in discussions with Plaintiffs’ Counsel

about being paid to serve as a witness in this case. The documents could provide important

information about those negotiations, including whether and how Plaintiffs’ Counsel satisfied

Hasbun’s request for $250,000. (See Ex. 7, at ¶ 1; Ex. 9 (stating $200,000 was fine).) The

documents may also shed light on the “expert” witness payment that was considered for, or

requested by, Cobos, Otero’s associate who is a fact witness in this case (see supra pp. 2, 10-11),

including whether and how Plaintiffs’ Counsel satisfied that request. And the documents may

reveal information about Plaintiffs’ Counsel’s interactions with Salvatore Mancuso, a witness to

whom Otero was introduced and with whom Plaintiffs were admittedly seeking to meet, and

Adolfo Guevara Cantillo, a witness in this case whom Otero recently tried to pay to testify

against Dole. (See Ex. 2; Ex. 25.)

Beyond the specific issues that Chiquita has been able to identify based on the

limited information currently available to it, the fact that Otero has had a central role in

Plaintiffs’ Counsel’s various witness payments schemes suggests that there could be an untold

amount of potentially relevant information in the documents that Plaintiffs are withholding. It is



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well established that Otero has served as a “conduit” for payments to families of Colombian

paramilitaries. (See generally Ex. 1, at 25, 28-30 (“[t]he evidence of relatedness [of Otero to the

crimes and frauds related to witness payments] is nothing short of staggering”). Indeed, it was

just three months ago that Otero was trying to pay Guevara Cantillo to testify falsely against

Dole in Plaintiffs’ Counsel’s suit against Dole. (See Ex. 2 (“In the meeting on January 15, 2016,

Mr. Otero told me . . . that he would pay Mr. Guevara if, in his testimony in the Barranquilla

courthouse, he agreed to implicate Dole as collaborating with the AUC, in order to support his

lawsuit against Dole.”); See also Ex. 25, at 72-73 ( “He offered me money so that I could involve

or incriminate Dole in something that I cannot attest to or that I cannot prove and nobody -- and,

in fact, nobody can prove.”); id. at 57-59, 69-73; Ex. 5, at 7-8 (identifying Guevara as witness in

this case). For the same reasons, Plaintiffs’ Counsel’s payments to Otero are pivotal whether or

not they were ultimately funneled to the specific witnesses in this case.7 As Otero’s actions in

January 2016 demonstrate, he is willing to use whatever influence he has with paramilitary

witnesses to benefit Plaintiffs’ Counsel, presumably due to his handsome compensation by

Plaintiffs’ Counsel over the better part of a decade. Chiquita is entitled to information about the

details of that compensation.

Because documents regarding Payments to Otero are obviously a sensitive

pressure point for Plaintiffs’ Counsel, they have been reduced to taking indefensible and, as in

7 The parties agree that, if Otero is an “Associate” or “Agent” of a Witness in this case, Chiquitais entitled to documents evidencing Payments made, requested, offered, or considered, regardlessof whether the ultimate recipient of the Payment was a Witness in this litigation. See Ex. 30, at ¶ 7 (“Requests regarding any ‘Agent, Relative, or Associate’ of a Witness applies to that Agent,Relative, or Associate regardless of whether the Payment was for the benefit of the Witness withrespect to whom he/she has an agency, relative, or associate relationship.”); Ex. 31, at ¶ 7(“Plaintiffs[’] understanding is consistent with Chiquita’s as reflected in your October 28letter.”).



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the Drummond case, “comedic” positions with regard to Otero’s relationships to witnesses in this

case. First, with regard to Otero’s representation of Córdoba, Plaintiffs’ Counsel represented to

Chiquita that Otero’s attorney-client relationship had been dormant for the past twenty years.

(See Ex. 16, at ¶ 7.) But, when Chiquita pointed out that (a) Otero’s representation of Córdoba in

relation to the Justice and Peace proceedings in Colombia could not have extended back to 1996

because the Justice and Peace law was not even enacted until 2005, and (b) Plaintiffs’ Counsel

had not provided an end date for Otero’s attorney-client relationship with Córdoba, Plaintiffs’

Counsel were forced to concede that Otero’s representation of Córdoba in fact began after the

Justice and Peace law was enacted and indicated that they would need to obtain a declaration

from Otero to provide an end date for the representation.8 (See Hellerman Decl., at ¶¶ 4-5.)

Second, when confronted with the evidence of Otero’s associate relationship with Cobos,

Plaintiffs’ Counsel first stated that Cobos was not a witness in this case. (See id. at ¶ 3.) This, of

course, is belied by the fact that Plaintiffs’ Counsel has consistently listed Cobos as a witness in

this case in every iteration of its interrogatory responses following the Court’s May 5 Order.

(See Exs. 34-36 & 5, at Resp. to Interrogatory No. 1.) Then, Plaintiffs’ Counsel asserted that the

“Edwar Cobos Tellez, alias Diego Vecino” listed in their interrogatory responses was different

from the “Edwar Cobos Tellez, alias Diego Vecino” referenced in Exhibit 6. (See Hellerman

Decl., at ¶ 3.) This “Cobos is not Cobos” argument is facially suspect, to say the least.

8 Plaintiffs’ Counsel have yet to provide any such declaration. Of course, a declaration fromOtero regarding the end date of his formal representation of Córdoba would, at best, merelyconvert Otero to an Associate, rather than an Agent, of Córdoba — thus doing nothing to excusePlaintiffs’ Counsel’s withholding of related documents. Moreover, for obvious reasons, Otero’sown statements on the matter would lack any credibility. Otero has every reason to deny hisrelationship with Córdoba. Revelation of his actions, thus far, have, after all, led to Plaintiffs’Counsel being sanctioned by the Drummond court (see Ex. 1), to Drummond pursuing RICOclaims against Otero (see Ex. 32), and to the dismissal of the action against Dole with prejudice.



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Plaintiffs’ Counsel’s attempts to wiggle out of the truth that Otero is an agent and/or associate of

witnesses in this case cannot be credited. The Court should order Plaintiffs’ Counsel to comply

with its prior Rule 37(b) Orders and produce these documents to Chiquita.

II. The Court Should Order Plaintiffs’ Counsel to Correct Their InappropriateRedactions.

Plaintiffs’ Counsel continue to redact documents in contravention of this Court’s

Orders. The May 5 Order overruled all objections to RFP Nos. 1 and 3 (see D.E. 797, at 2-4),

which request documents regarding Payments to Witnesses in this case, and their Agents,

Relatives, and Associates (see Ex. 26, at 11-12).9 The May 5 Order then clarified that Plaintiffs’

Counsel were permitted to redact from responsive documents only (1) “internal communications

between counsel which relate to the propriety of fact witness payments” and (2) material

concerning “other topics unrelated to the fact of any witness payments, which are purportedly

protected by work product or common interest privilege.” (D.E. 872, at 3 (internal quotation

marks omitted).)

Chiquita has already described the most egregious improper redaction that it has

identified to date — the 2012 Leete memorandum that initially produced to Chiquita wholly

redacted. These redactions concealed the fact that Plaintiffs’ Counsel considered paying

paramilitary witness, Cobos; facts concerning the payments to Hasbún and his agent, Maya

Sánchez; and the fact that two other witnesses, Córdoba (“57’) and Samper (“Lucho”), requested

$50,000 in “security” to testify against Chiquita. (Compare Ex. 8 (wholly redacted) with Ex. 6,

at ¶¶ 1, 4, 7 (public Dole version); see Ex. 5, at 7 (Plaintiffs’ Fifth Amended Responses to

Chiquita’s Interrogatories, listing Cobos, Hasbún, Córdoba, and Samper as witnesses in this

9 The Court’s May 5 Order effectively replaced the word “Paramilitary” with “Witness” in RFP No. 3 by limiting the request to witnesses in this case. See D.E. 797, at 4.



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case).) Although Plaintiffs’ Counsel has agreed to unredact certain portions of the memo, it has

refused to produce a version with paragraph 4 unredacted.

In addition to redactions on that document, Plaintiffs’ Counsel have asserted that

they are entitled to make redactions based solely on non-responsiveness — even when there is no

applicable privilege or work product protection. (See Ex. 27.) Although Chiquita has not been

able to identify which produced documents this affects — in most cases, Plaintiffs’ Counsel have

not labeled their redactions — Chiquita is concerned with this position given Plaintiffs’

Counsel’s clear track record of evasion, concealment, and misrepresentation of facts regarding its

witness-payment activities.

Moreover, Plaintiffs’ Counsel’s position is flatly wrong. Nothing in the Court’s

Orders allows Plaintiffs’ Counsel to redact responsive documents, except as to the two, limited

privilege exceptions outlined above. And, the Southern District of Florida has specifically held

that parties “cannot unilaterally redact portions of otherwise discoverable, non-privileged

documents based on [their] own belief that portions of the documents are irrelevant to the claims

in this case.” Bonnell v. Carnival Corp., 2014 WL 10979823, at *4 (S.D. Fla. Jan. 31, 2014).

This is because responsiveness redactions are inconsistent with Federal Rule of Civil Procedure

34’s focus on “the production of documents [—] not individual pictures, graphics, paragraphs,

sentences, or words within those documents.” Id. at *3 (internal quotation marks omitted); see

also, e.g., McNabb v. City of Overland Park , 2014 WL 1152958, at *3 (D. Kan. Mar. 21, 2014).

Disallowing such redactions is also good policy, as “the unilateral editing of documents

frequently gives rise to suspicion that relevant material harmful to the producing party has been

obscured.” Id. Indeed, this has already been demonstrated to be true in this matter, by Plaintiffs’

Counsel’s redaction activity related to the 2012 Leete Memo. “[T]he better, less-risky



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approach,” the Southern District of Florida has reasoned, “is to [disallow Plaintiffs’ Counsel] the

carte blanche right to willy-nilly redact information from otherwise responsive documents.”

Bonnell, 2014 WL 10979823, at *4; accord Sexual Minorities of Uganda v. Lively, 2015 WL

4750931, at *4 (D. Mass. Aug. 10, 2015).

The Court should therefore order Plaintiffs’ Counsel to produce to Chiquita

within 72 hours a copy of Exhibit 7 in which paragraph 4 is not redacted and correctly-redacted

versions of any other documents that were improperly redacted on the basis of non-

responsiveness where the material did not otherwise fall within the limited privilege and work

product objections that the Court sustained.

10

Chiquita also respectfully asks that the Court, in

conducting its in camera review of the redactions, unredact any information that does not fall

within those limited privilege and work product even if such information appears to be non-

responsive. (See supra, Section II.)

III. The Court Should Order Plaintiffs’ Counsel to Preserve Their Documents and Files.

As the Court is aware, there are gaps in Mr. Collingsworth’s email files. (See

D.E. 872, at 4.) Given his recent separation from C&S (see D.E. 965), as well as the recent

departure of three of his attorney colleagues from IRAdvocates (see Exs. 37-39), it is imperative

that no additional information is compromised. The Court should, therefore, order Plaintiffs’

Counsel to preserve all information currently in their possession, custody, or control related to

this litigation or payments to witnesses in any matter, for the duration of this litigation, through

any appeal.

10 For the Court’s convenience, Chiquita attaches, as Exhibit 40 a list of all paramilitarywitnesses and agents/associates of which Chiquita is aware so that the Court may makeindividual responsiveness determinations, if it so chooses, of the redacted information containedin the documents that are presumably in the Court’s possession (see D.E. 888; D.E. 316 in 08-cv-80465).



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IV. The Court Should Order Plaintiffs’ Counsel to Reimburse Chiquita for the Fees andCosts Related to This Motion.

Finally, the Court should order Plaintiffs’ Counsel to reimburse Chiquita’s fees

and costs in bringing this motion, including reviewing and responding to further briefing and for

participation in any hearing on the motion, pursuant to Rule 37(b)(2)(C). Payment for these

expenses is mandatory under that Rule, unless Plaintiffs’ Counsel show substantial justification

for their failure to comply with the Orders — which they cannot. See Fed. R. Civ. P. 37(b)(2)(C)

(“[T]he court must order the disobedient party, the attorney advising that party, or both to pay the

reasonable expenses, including attorney’s fees, caused by the failure [to obey an order to provide

or permit discovery], unless the failure was substantially justified or other circumstances make

an award of expenses unjust.” (emphasis added)). To the contrary, in light of the record outlined

above, there is no possible justification for Plaintiffs’ Counsel’s repeated violation of the Court’s

Orders and failure to produce — nearly one year after it was first ordered to do so — a full and

complete set of responsive documents and information.

CONCLUSION

For the reasons discussed herein, the Court should order Plaintiffs’ Counsel to (i)

produce, within 72 hours, documents related to Payments to Otero that they are withholding; (ii)

correct, within 72 hours, improper redactions on documents they have already produced; (iii)

retain all documents and files related to Payments to witnesses and their agents, relatives, and

associates; and (iv) reimburse Chiquita for its fees and costs in preparing for and litigating this

motion.



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Certificate of Good Faith Conference

Counsel for Chiquita hereby certifies that it has conferred with Plaintiffs’ Counsel

regarding the subject of this motion, and that we have been unable to resolve these issues.

Dated: April 15, 2016 Respectfully submitted,

John E. HallMaureen F. BrowneMark W. MosierShankar DuraiswamyJosé E. ArveloCOVINGTON & BURLING LLPOne CityCenter850 Tenth Street NWWashington, D.C. 20001Telephone: (202) 662-6000Facsimile: (202) 662-6291

Jonathan M. SperlingEric HellermanCOVINGTON & BURLING LLPThe New York Times Building620 Eighth Avenue New York, NY 10018Telephone: (212) 841-1000Facsimile: (212) 841-1010

/s/ Robert W. Wilkins_____________Sidney A. Stubbs (Fla. Bar No. 095596)[email protected] Robert W. Wilkins (Fla. Bar No. 578721)[email protected] James C. Gavigan, Jr. (Fla. Bar No. 0085909) [email protected] JONES, FOSTER, JOHNSTON & STUBBS, P.A.505 South Flagler Drive, Suite 1100West Palm Beach, Florida 33401Telephone: (561) 659-3000Facsimile: (561) 650-5300

Counsel for Chiquita Brands International, Inc.

and Chiquita Fresh North America, LLC


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

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

Clerk of the Court using CM/ECF on this 15th day of April, 2016. 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

Court’s First Case Management Order (“CMO”) and the June 10, 2008 Joint Counsel List filed

in accordance with the CMO.

By: /s/ Robert W. WilkinsFla. Bar No. 578721
